People v. Kachadourian

• Decision Date: 25 June 2020
• Docket Number: 111698
• Citation: 126 N.Y.S.3d 786,184 A.D.3d 1021
• Parties: The PEOPLE of the State of New York, Respondent, v. Garo D. KACHADOURIAN, Appellant.
• Court: New York Supreme Court — Appellate Division

184 A.D.3d 1021

126 N.Y.S.3d 786

The PEOPLE of the State of New York, Respondent,

v.Garo D. KACHADOURIAN, Appellant.

111698

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

Calendar Date: May 20, 2020

Decided and Entered: June 25, 2020

Robert C. Kilmer, Binghamton, for appellant.

Michael D. Ferrarese, District Attorney, Norwich (Lauren D. Konsul, New York Prosecutors Training Institute, Inc., Albany, of counsel), for respondent.

Before: Garry, P.J., Egan Jr., Mulvey, Devine and Colangelo, JJ.

MEMORANDUM AND ORDER

Garry, P.J. Appeal from a judgment of the County Court of Broome County (Cawley Jr., J.), rendered August 9, 2017, convicting defendant following a nonjury trial of the crime of grand larceny in the third degree.

In February 2015, defendant was indicted on one count of grand larceny in the third degree based on allegations that between May 2013 and March 2014, he stole approximately $13,000 from the victim, an elderly woman who lived alone in a trailer in Broome County. A welfare check in March 2014, when the victim was 74 years old, disclosed that she was disoriented and living in squalor. She was taken to a hospital and thereafter placed in a nursing home with a diagnosis of dementia. An investigation disclosed that defendant, the victim's long-time friend, had taken control of her checking account and, beginning in May 2013, had written a number of checks that were signed by the victim, but were made out to defendant or otherwise appeared to be for his benefit rather than hers.

Defendant waived a jury trial. County Court conducted a bench trial in late 2016. The victim was unable to testify due to her mental condition. The court found defendant guilty as charged. Defendant filed two motions, opposed by the People, to set aside the verdict pursuant to CPL 330.30(1) and (3). The court denied both motions, sentenced defendant to five years of probation, and ordered him to pay restitution. Defendant appeals.

Initially, we reject defendant's contention that County Court prevented him from presenting a defense by precluding the admission of a certain document. In October 2015, defense counsel wrote a letter to the People claiming that the charge against defendant should be dismissed because defendant was the rightful owner of sufficient funds in the victim's checking account to cover the checks that he had written. Specifically, counsel asserted that, before 2009, defendant had deposited a substantial sum of his own funds into the victim's account to avoid an alleged child support obligation. Attached to the letter was a handwritten statement, dated in May 2009 and bearing the purported signature of the victim. The statement asserted that the victim was of sound mind and acting of her own free will, and that she was holding a stated amount of funds that belonged to defendant.

The People filed a motion in limine to preclude the admission of this statement at trial. Defendant opposed the motion and submitted the report of his expert document examiner, opining that the signature on the statement matched samples of the victim's signature. County Court found that the document was inadmissible hearsay and precluded its admission and, by extension, that of the testimony of defendant's expert.¹ We find no error in this conclusion. The 2009 statement had no relevance to the victim's cognitive abilities four years later, when defendant wrote the checks at issue here. Contrary to defendant's claim, the statement was not admissible for the purpose of proving the victim's state of mind, as it was not a statement of the victim's intent to perform a future act and, indeed, no such act was at issue (see People v. Reynoso, 73 N.Y.2d 816, 819, 537 N.Y.S.2d 113, 534 N.E.2d 30 [1988] ; People v. Ramsaran, 154 A.D.3d 1051, 1053, 62 N.Y.S.3d 555 [2017], lv denied 30 N.Y.3d 1063, 94 N.E.3d 495 [2017] ; see generally People v. D'Arton, 289 A.D.2d 711, 712–713, 734 N.Y.S.2d 309 [2001], lv denied 97 N.Y.2d 728, 740 N.Y.S.2d 701, 767 N.E.2d 158 [2002] ). The statement was relevant only if offered for its truth – that is, that the victim possessed money that belonged to defendant – and, thus, it was hearsay (see People v. Reynoso, 73 N.Y.2d at 819, 537 N.Y.S.2d 113, 534 N.E.2d 30 ; People v. Pascuzzi, 173 A.D.3d 1367, 1377, 102 N.Y.S.3d 778 [2019], lv denied 34 N.Y.3d 953, 110 N.Y.S.3d 624, 134 N.E.3d 623 [2019] ; Guide to N.Y. Evid rule 8.00[1], Definition of Hearsay). Finally, the statement was not so fundamental to defendant's opportunity to offer a defense that it should have been admitted despite its hearsay nature; notably, the court's ruling did not preclude defendant from offering other proof, such as bank records, that he had deposited funds into the victim's account (compare People v. Carroll, 95 N.Y.2d 375, 385–387, 718 N.Y.S.2d 10, 740 N.E.2d 1084 [2000] [recorded conversation rebutting People's claim that the defendant never denied allegations against him]; People v. Sheppard, 119 A.D.3d 986, 989–990, 989 N.Y.S.2d 168 [2014] [admission of culpability by a third party]; People v. Thompson, 111 A.D.3d 56, 64, 970 N.Y.S.2d 620 [2013] [victim's diary identifying someone other than the defendant as her attacker] ).

Defendant next contends that his conviction is based on legally insufficient evidence and is against the weight of the evidence. In this regard, defendant asserts that he acted "under a claim of right made in good faith" ( Penal Law § 155.15[1] ; see Penal Law § 155.05[1] ), in that he used the funds for the victim's benefit and with her knowledge and consent. The defense of "[a] good faith claim of right negates larcenous intent, and the People have the burden of disproving such defense beyond a reasonable doubt" ( People v. Michaels, 132 A.D.3d 1073, 1075, 18 N.Y.S.3d 723 [2015] ). Defendant asserts that the People failed to establish beyond a reasonable doubt that the victim suffered from dementia to such an extent that she lacked the legal capacity to consent to defendant's use of her funds.

The testimony established that defendant and the victim had been friends for many years. Defendant operated a transportation service in the City of Binghamton, Broome County, where he also repaired and resold vehicles. He and the victim shared a joint checking account until October 2012, when the victim closed that account.² The People submitted bank records, canceled checks and testimony establishing that, between May 2013 and March 2014, 19 checks made out to defendant and totaling about $7,000 were drawn on the victim's account. Additionally, three checks from the victim's account were used to pay utility bills for several business and personal accounts associated with defendant, in a total sum of about $2,400. Two witnesses testified that defendant had used checks drawn on the victim's account to purchase cars, both of which were nonfunctional sports cars dating from the 1970s; defendant told one of these witnesses that the check had come from his sister.

Several witnesses described deterioration in the victim's behavior and appearance beginning in 2011 or 2012. In September 2012, defendant told the manager of the victim's trailer park that the victim "was getting forgetful and ... had the onset of dementia." The manager testified that the victim made many late payments in 2011 and 2012, after having paid her rent on time for many years. The manager noticed changes in the victim in September 2012, saying that she had lost weight, become frail and fragile, and spoke very softly. The victim's neighbor testified that, sometime in 2012, she noticed that the victim's behavior was becoming more eccentric. She appeared outdoors in dirty, inadequate or inappropriate clothing, seemed to be losing weight, and was hungry. She sometimes asked the neighbor for food, and ate very large portions of what the neighbor provided. The neighbor called Adult Protective Services (hereinafter APS) twice to report her concerns, once in August 2013 and again on a later date.

APS caseworkers testified that they received community referrals about the victim in August 2013 and February 2014, and that they visited her property and also spoke with defendant several times. On their first visit in August 2013, the victim was thin, unkempt and "looked hungry." She was slow in answering questions and appeared to lose her train of thought. The victim identified defendant as her caretaker, and did not accept the caseworkers' offer of services. APS caseworkers returned to her home in September, October and November 2013. Initially the victim refused to speak with them; on the third visit, she spoke with a caseworker, who observed that her appearance and ability to complete thoughts and finish sentences had deteriorated since August 2013. The victim refused to let caseworkers enter her home, but, in December 2013, she agreed to meet at defendant's garage. The victim was neatly dressed at this meeting and better able to communicate than she had been during the prior encounters. Defendant was present, confirmed that he was responsible for the victim's care, and told the caseworker that he was handling her checking account because she had been carrying around large sums of cash.

In late February 2014, caseworkers observed that the victim's appearance had worsened and that she "had a hard time answering ... questions." As they stepped just inside her trailer, they were able to see debris in nearby rooms. In March 2014, no one answered the door, and police were called for a welfare check. The next day, police and caseworkers arrived at the victim's home for the welfare check and found her locked inside the trailer and unable to open the door, which she was trying to unlock with a plastic water bottle cap. The door was forced open, and an order was obtained for the victim's transportation to a hospital. A state trooper spoke with defendant, who said that he had taken over the victim's checking account because she seemed to be getting dementia, that he...