People v. Hunter

• Decision Date: 10 July 1974
• Citation: 358 N.Y.S.2d 360,34 N.Y.2d 432,315 N.E.2d 436
• Court: New York Court of Appeals Court of Appeals
• Parties: , 315 N.E.2d 436 The PEOPLE of the State of New York, Respondent, v. Thomas M. HUNTER, Appellant.

Page 360

358 N.Y.S.2d 360

34 N.Y.2d 432, 315 N.E.2d 436

The PEOPLE of the State of New York, Respondent, v. Thomas M. HUNTER, Appellant.

Court of Appeals of New York.

July 10, 1974.

George E. De More, Syracuse, for appellant.

Leo F. Hayes, Dist. Atty. (John A. Cirando and Patrick Connelly, Syracuse, of counsel), for respondent. RABIN, Judge.

The defendant Thomas Hunter applied for and received public assistance payments for the periods of July, 1970 to November, 1970, and December, 1970 to February, 1971. In connection with his receipt of this public assistance, he was indicted in 1971 for (1) violation of section 145 of the Social Services Law; (2) grand larceny in the second degree; and (3) grand larceny in the third degree (Penal Law, § 155.30, Consol.Laws, c. 40). It was charged that Hunter had received income from employment during the periods he had received public assistance and that he had not fully reported this income to the appropriate public welfare official as required by law. The second count, grand larceny in the second degree, was dismissed at trial, and Hunter was convicted of counts one and three after trial by jury. He was sentenced to serve a term of one year in the Onondaga County Penitentiary for the grand larceny and fined $500 on the conviction of section 145 of the Social Services Law. Leave to appeal from the affirmance of the Appellate Division, 41 A.D.2d 701, 342 N.Y.S.2d 1008, and stay of execution were granted; and Hunter now challenges his convictions under both counts. We conclude that the proof at trial was insufficient to sustain the grand larceny conviction, but that the defendant was properly convicted of a violation of section 145. Accordingly, we modify.

Section 145 of the Social Services Law provided in pertinent part: 'Any person who by means of a false statement or representation, or by deliberate concealment of any material fact, or by impersonation or other fraudulent device, obtains or attempts to obtain * * * public assistance or care to which he is not entitled * * * shall be guilty of a misdemeanor, unless such act constitutes a violation of a rpovision of the penal law of the state of New York, in which case he shall be punished in accordance with the penalties fixed by such law. Failure on the part of a person receiving public assistance or care to notify the public welfare official granting such assistance or care of the receipt of money or property or income from employment or any other source whatsoever, shall, upon the cashing of a public assistance check by or on behalf of such person after the receipt of such money, or property, or income, constitute presumptive evidence of deliberate concealment of a material fact.'

The statute creates a misdemeanor offense requiring proof of the following elements:

(1) a person obtains (or attempts to obtain) public assistance or care;

(2) the person obtaining (or attempting to obtain) the public assistance or care is not fully entitled to the benefits obtained or sought (3) the means used to obtain this additional public assistance is a fraudulent device (which includes the deliberate concealment of a material fact).

In addition to proof the these elements, the statute creates a further condition that the conduct in question does not constitute a violation of a penal law provision for which the defendant has been convicted.

The evidence produced at trial clearly established the first element above. The defendant argues that some of this evidence was not properly admitted. A handwriting expert testified that indorsements on 3 of the 10 public assistance checks paid to 'Thomas Hunter' were in the handwriting of the defendant. However, he was unable to give an opinion as to the indorsements on the other seven checks because these were photostatic copies with a smaller scale. Defendant objects to the admission of these checks into evidence based upon the expert's failure to express an opinion. However, CPLR 4536, Consol.Laws, c. 8 provides that comparison of a 'disputed writing' with a satisfactory standard is permissible; and the jury in its deliberation, may make such a comparison whether or not an expert offers an opinion (People v. Molineux, 168 N.Y. 264, 330, 61 N.E. 286, 309; see Richardson, Evidence (10th ed.), § 375).

The second and third elements of the misdemeanor offense under section 145, that the defendant is not entitled to some of the benefits received and that these benefits were obtained by fraudulent device, may be shown through the provision in the section that certain acts 'constitute presumptive evidence of deliberate concealment of a material fact.' The second element above, that the defendant receives benefits 'to which he is not entitled' is supplied by the presumption that the concealment is of a 'material fact'. By definition, the fact concealed would not be 'material' unless it allowed the defendant to obtain benefits to which he would not otherwise be entitled. The element of fraudulent device is met by the presumption of 'deliberate concealment'.

The presumption of 'deliberate concealment of any material fact' comes into play after three facts are established: (1) the receipt of money or property or income from employment or any other source whatsoever by a person receiving public assistance; (2) failure to notify the Social Services Department of the receipt of the money or property; and (3) the cashing of a public assistance check by, or on behalf of, the person receiving assistance subsequent to the receipt of the income from the other source.

A review of the record shows that the conditions necessary to trigger the presumption were all established by credible testimony at trial. This showing raised the rebuttable presumption that Hunter's failure to report was deliberate and that the information withheld was material. The presumption that the failure to report was motivated by a fraudulent intent was bolstered by Hunter's signed statement indicating that he knew of the obligation to report income, and by his actually having reported income in August, and having experienced the consequent reduction in public assistance payments. Although the defendant's wife testified that she had notified the Department of Social Services of his earnings, the jury was entitled to credit the evidence presented by the prosecution witnesses.

As to the materiality of the information withheld, Hunter argues that '(t)he People failed to prove that the income the defendant allegedly received during the time he was receiving assistance would be sufficient to render him ineligible for public assistance.' There is no requirement that a defendant be proven ineligible from receiving any assistance whatsoever. It need only be shown that by virtue of the fraudulent device, the defendant received Some public assistance 'to which he is not entitled'.

In the present case, the statutory presumption, if not rebutted, fulfills the materiality requirement since it provides that the concealment of 'the receipt of money or property or income from any source whatsoever' is the concealment of 'a material fact'. The rebuttable presumption is that such concealment enables a person to obtain welfare assistance to which he is not entitled. Here, there was no significant testimony introduced to rebut the presumption, and there was other evidence corroborating it. The caseworker who handled Hunter's case testified that she reduced Hunter's scheduled assistance for future months by $130 after Hunter reported in August that he was receiving $156 income from employment. The direct evidence presented by ...