People v. Narducci, 10387

• Decision Date: 19 November 2019
• Docket Number: Ind. 201/14,10387
• Citation: 114 N.Y.S.3d 294,177 A.D.3d 511
• Parties: The PEOPLE of the State of New York, Respondent, v. Leonard NARDUCCI, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

177 A.D.3d 511

114 N.Y.S.3d 294

The PEOPLE of the State of New York, Respondent,

v.Leonard NARDUCCI, Defendant–Appellant.

10387

Ind. 201/14

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

ENTERED: NOVEMBER 19, 2019

Aidala, Bertuna & Kamins P.C., New York (Diana Fabi Samson of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Brent Ferguson of counsel), for respondent.

Friedman, J.P., Renwick, Richter, Mazzarelli, Oing, JJ.

Judgment, Supreme Court, New York County (Maxwell Wiley, J.), rendered March 14, 2018, convicting defendant, after a jury trial, of grand larceny in the second degree, and sentencing him to a term of 1 to 3 years, and $490,000 in restitution, unanimously affirmed. The matter is remitted to Supreme Court for further proceedings pursuant to CPL 460.50(5).

The People met their burden of establishing by a preponderance of the evidence that venue was proper in New York County, based on the location of conduct establishing one or more elements of the crime of larceny by false pretenses (see CPL 20.40[1][a] ). Defendant's arguments on this issue are generally similar to arguments this Court rejected on a codefendant's appeal ( People v. Hurley, 161 A.D.3d 687, 688, 78 N.Y.S.3d 74 [1st Dept. 2018], lv denied 32 N.Y.3d 938, 84 N.Y.S.3d 864, 109 N.E.3d 1164 [2018] ). A government agency located in Manhattan received defendant's application for benefits containing false statements, and those statements were accordingly deemed to have been made in Manhattan (see CPL 20.60[1] ). Although the evidence that defendant's application was received in Manhattan was circumstantial, the People presented "evidence in the record upon which the jury could have found jurisdiction" ( People v. Cullen, 50 N.Y.2d 168, 173, 428 N.Y.S.2d 456, 405 N.E.2d 1021 [1980] ). Accordingly, the element of making a false representation is deemed to have occurred in Manhattan, and the People were not required to prove that any other element occurred there. In any event, the evidence also supported the inference that the element of reliance occurred in Manhattan, as in Hurley.

Defendant did not preserve his challenges to the court's main and supplemental jury charges on the subject of venue, and we decline to review them in the interest of justice. As an alternative holding, we reject them on the merits.

The verdict was not against the weight of the evidence (see People v. Danielson, 9 N.Y.3d 342, 348, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ). On the contrary, we find that the evidence overwhelmingly established larceny by false pretenses, in that defendant submitted numerous false statements to the government about his mental and physical condition that were contrary to the evidence of his actual behavior over the course of years. Defendant's fraudulent intent could be readily inferred from his conduct. Although he argues that his condition could have improved after he made various statements in 1998, he was obligated to update the government promptly of significant changes, and his failure to do so evinced his fraudulent intent from the outset. Moreover, he submitted a 2013 follow-up form to the effect that his condition had not improved since 1998. In any event, defendant's own deposition testimony in lawsuits contradicted his representations about his activities around the time of his 1998 application. Furthermore, the...