People v. Monteiro

• Decision Date: 01 March 2012
• Citation: 939 N.Y.S.2d 629,2012 N.Y. Slip Op. 01527,93 A.D.3d 898
• Parties: The PEOPLE of the State of New York, Respondent, v. Ana Paula MONTEIRO, Appellant.
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 01527

93 A.D.3d 898

939 N.Y.S.2d 629

The PEOPLE of the State of New York, Respondent,

v.Ana Paula MONTEIRO, Appellant.

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

March 1, 2012.

Diane E. Selker, Peekskill, for appellant.

P. David Soares, District Attorney, Albany (Kenneth C. Weafer of counsel), for respondent.

Before: MERCURE, Acting P.J., SPAIN, KAVANAGH, STEIN and EGAN JR., JJ.

MERCURE, Acting P.J.

Appeal from a judgment of the County Court of Albany County (Breslin, J.), rendered May 13, 2010, upon a verdict convicting defendant of the crimes of falsifying business records in the first degree (nine counts), criminal possession of a forged instrument in the second degree (three counts), scheme to defraud in the first degree, failure to file an income tax return (two counts) and filing a false and fraudulent tax return (two counts).

Following an investigation, codefendant Aaron Dare and defendant, his fiancée, were charged in a 59–count indictment with offenses stemming from their involvement in a mortgage fraud scheme. Dare, who operated various business entities that prepared loan applications for individuals interested in purchasing real property and subsequently handled the closings, was indisputably the mastermind of the scheme. Defendant, however, worked as a loan officer for those businesses and was charged as an accessory ( see Penal Law § 20.00). With Dare's control over the process, numerous opportunities existed to alter paperwork and misdirect funds, and two primary methods were employed to do so. The first involved a “show check” drawn by the buyer using funds provided to that buyer by one of defendant's real estate companies. The show check would be used to demonstrate to lenders that the buyer had the purported wherewithal to make a down payment and, thereafter, the buyer would return the funds to Dare. The second method was to submit inaccurate documents to the lender that inflated the purchase price of the property and, in turn, justified a higher loan amount. In either case, a portion of the loan proceeds were then funneled into defendant's personal accounts to fund her and Dare's lavish lifestyle.

Dare pleaded guilty to various counts in satisfaction of the indictment and is currently serving a lengthy prison sentence, imposed as a result of this matter and other federal and state convictions arising out of his fraudulent conduct. Following a jury trial, defendant was convicted of nine counts of falsifying business records in the first degree, three counts of criminal possession of a forged instrument in the second degree, one count of scheme to defraud in the first degree, and two counts each of failure to file an income tax return and filing a false and fraudulent tax return. County Court sentenced defendant to an aggregate prison term of 6 to 20 years, and she now appeals.

We affirm. Defendant concedes that the People demonstrated that Dare had committed the alleged mortgage fraud, but argues that the evidence is legally insufficient to sustain her convictions and that the weight of the evidence does not support the jury's finding that she aided Dare in committing those offenses with the “intent to defraud” anyone (Penal Law §§ 170.25, 175.10, 190.65[1]; see Penal Law § 20.00).¹ Fraudulent intent, however, “is usually not susceptible of proof by direct evidence and must ordinarily be inferred from circumstantial evidence such as the defendant's knowledge of the misleading or deceptive nature of the particular business practices employed” ( People v. Sala, 258 A.D.2d 182, 188–189, 695 N.Y.S.2d 169 [1999], affd. 95 N.Y.2d 254, 716 N.Y.S.2d 361, 739 N.E.2d 727 [2000]; see ...