People v. Holley

• Decision Date: 08 October 2021
• Docket Number: 666,KA 17-00689
• Citation: 198 A.D.3d 1351,155 N.Y.S.3d 258
• Parties: The PEOPLE of the State of New York, Respondent, v. Jason D. HOLLEY, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

198 A.D.3d 1351

155 N.Y.S.3d 258

The PEOPLE of the State of New York, Respondent,

v.Jason D. HOLLEY, Defendant-Appellant.

666

KA 17-00689

Supreme Court, Appellate Division, Fourth Department, New York.

Entered: October 8, 2021

TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JAMES A. HOBBS OF COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (KAYLAN PORTER OF COUNSEL), FOR RESPONDENT.

PRESENT: WHALEN, P.J., SMITH, LINDLEY, TROUTMAN, AND WINSLOW, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him, following a jury trial, of three counts of falsifying business records in the first degree ( Penal Law § 175.10 ) but acquitting him of three concomitant counts of insurance fraud in the fifth degree ( § 176.10 ). Contrary to defendant's contention, the evidence, viewed in the light most favorable to the People (see People v. Contes , 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 [1983] ), is legally sufficient to support the conviction (see generally People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). Viewing the evidence in light of the elements of the crimes as charged to the jury (see People v. Danielson , 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), we reject defendant's further contention that the verdict is against the weight of the evidence (see generally Bleakley , 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Although a different verdict would not have been unreasonable, it cannot be said that the jury failed to give the evidence the weight it should be accorded (see generally id. ).

Defendant further contends that the split verdict is repugnant. Even assuming, arguendo, that defendant preserved that contention for our review by objecting to the verdict "before the jury was excused" ( People v. Hunter , 46 A.D.3d 1417, 1418, 848 N.Y.S.2d 480 [4th Dept. 2007], lv denied 10 N.Y.3d 812, 857 N.Y.S.2d 45, 886 N.E.2d 810 [2008] ), we find no repugnancy in the verdict. A conviction will be reversed as repugnant "only in those instances where acquittal on one crime as charged to the jury is conclusive as to a necessary element of the other crime, as charged, for which the guilty verdict was rendered" ( People v. Tucker , 55 N.Y.2d 1, 7, 447 N.Y.S.2d 132, 431 N.E.2d 617 [1981], rearg denied 55 N.Y.2d 1039, 449 N.Y.S.2d 1030, 434 N.E.2d 1081 [1982] ). "The determination as to the repugnancy of the verdict is made solely on the basis of the trial court's charge and not on the correctness of those instructions" ( People v. Hampton , 61 N.Y.2d 963, 964, 475 N.Y.S.2d 273, 463 N.E.2d 614 [1984] ). Moreover, we cannot consider "the particular facts of the case" ( People v. Johnson , 70 N.Y.2d 819, 820, 523 N.Y.S.2d 434, 517 N.E.2d 1320 [1987] ; see People v. Muhammad , 17 N.Y.3d 532, 539, 935 N.Y.S.2d 526, 959 N.E.2d 463 [2011] ).

Here, the jury's not guilty verdict on the counts of insurance fraud did not necessarily negate an essential element of the falsifying business records in the first degree counts. "A person is guilty of falsifying business records in the first degree when he commits the crime of falsifying business records in the second degree, and when his intent to defraud includes an intent to commit another crime or to aid or...