People v. Ganz

Decision Date31 December 2015
Citation24 N.Y.S.3d 486,50 Misc.3d 79
Parties The PEOPLE of the State of New York, Respondent, v. Karen GANZ, Appellant.
CourtNew York Supreme Court — Appellate Term

Joseph J. Artrip, Cornwall, for appellant.

Francis D. Phillips, II, District Attorney, Middletown (Lauren E. Grasso and Andrew R. Kass of counsel), for respondent.

PRESENT: IANNACCI, J.P., MARANO and TOLBERT, JJ.

Appeal from a judgment of the Justice Court of the Town of Cornwall, Orange County (Jacqueline McBride Gaillard, J.), rendered September 20, 2012. The judgment convicted defendant, after a nonjury trial, of criminal possession of a forged instrument in the third degree (eight counts), petit larceny (five counts), forgery in the third degree, and attempted petit larceny.

ORDERED that the judgment of conviction is modified, on the law, by vacating the convictions of two counts of petit larceny (counts 8 and 16), two counts of criminal possession of a forged instrument in the third degree (counts 17 and 18), and attempted petit larceny (count 19), and by providing that these counts of the accusatory instrument are dismissed; as so modified, the judgment of conviction is affirmed.

On January 19, 2012, the People charged defendant, in a prosecutor's information, with nine counts of criminal possession of a forged instrument in the third degree (Penal Law § 170.20 ), seven counts of petit larceny (Penal Law § 155.25 ), two counts of forgery in the third degree (Penal Law § 170.05 ), and one count of attempted petit larceny (Penal Law §§ 110.00, 155.25 ). The information alleged that, from November 18, 2010 through June 17, 2011, defendant, then an employee of the Storm King School, submitted to the school, for reimbursement, a series of medical copayment receipts which defendant had altered to reflect higher payments. At a nonjury trial, defendant moved, at the close of the People's case, to dismiss all of the counts for evidentiary insufficiency, raising specific grounds. The Justice Court denied the motion and defendant presented a brief case, re-calling one of the People's witnesses whose testimony did not address the evidentiary deficiencies alleged in support of the motion to dismiss. Defendant did not renew her motion to dismiss. Before the verdict was rendered, the court granted the People's motion to dismiss counts three, four, and five of the information, which alleged, respectively, forgery in the third degree, criminal possession of a forged instrument in the third degree, and petit larceny. The Justice Court acquitted defendant of one count of petit larceny (count 10) and convicted defendant of the remaining counts.

Defendant appeals, arguing that the People failed to establish that her copayment applications and related documentation were admissible as business records; that the proof was legally insufficient to support the convictions; and that the conviction of attempted petit larceny was against the weight of the evidence. For the reasons that follow, we reverse the convictions of two counts of petit larceny (counts 8 and 16), two counts of criminal possession of a forged instrument in the third degree (counts 17 and 18), and attempted petit larceny (count 19), and affirm the remaining convictions.

The specific objection now raised to the admission of the People's exhibits is not preserved for appellate review (CPL 470.05[2] ). In his argument opposing the People's offer of the exhibits into evidence, trial counsel made no reference to the business records exception to the hearsay rule, much less to whether the foundation testimony satisfied CPLR 4518(a) (see CPL 470.05[2] ; People v. Kurth, 82 A.D.3d 905, 906, 918 N.Y.S.2d 536 [2011] ; People v. Bell, 286 A.D.2d 443, 729 N.Y.S.2d 899 [2001] ), and did not raise this issue in his motion to dismiss. In any event, to the extent any of the documents in question were being used for a hearsay purpose, we are satisfied that the testimony established that the documents bore all of the "indicia of reliability characteristic of a business record" (People v. Cratsley, 86 N.Y.2d 81, 91, 629 N.Y.S.2d 992, 653 N.E.2d 1162 [1995] ). Three present and former employees of the Storm King School, whose duties were directly related to the production, use and storage of the copayment reimbursement forms, the copies of the provider payment receipts attached thereto as proof of the claims, and the checks issued to satisfy the claims, testified in detail as to the manner in which the application forms are filled out, the supporting documentation assembled in support of the claims, the claim review process, and the subsequent storage of the application and reimbursement documentation. Additionally, witnesses employed by the providers from whom defendant had received copayment receipts authenticated the unaltered originals as documents produced in the ordinary course of the provider's business and which the providers had issued at the time the copayments were made. This testimony collectively "reflected a routine, regularly conducted business activity, needed and relied on in the performance of the functions of the business ... [that the records were] made pursuant to established procedures for the routine, habitual, [and] systematic making of [the] record [s] ... [and that they were] made at the time of the act, transaction, occurrence or event, or within a reasonable time thereafter, assuring that the recollection is fairly accurate and the entries routinely made" (id. at 89, 629 N.Y.S.2d 992, 653 N.E.2d 1162 ; see also People v. Kennedy, 68 N.Y.2d 569, 579–580, 510 N.Y.S.2d 853, 503 N.E.2d 501 [1986] ). While none of the witnesses could recall reviewing any particular application by defendant, because the witnesses "indicated sufficient knowledge of the record-keeping practices and procedures of the [school] ... it was not necessary that [they] have personal knowledge regarding [a] particular record" (People v. Mattis, 108 A.D.3d 872,...

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