People v. Perillo

• Decision Date: 23 November 2016
• Citation: People v. Perillo, 2016 NY Slip Op 7882, 144 A.D.3d 1399, 41 N.Y.S.3d 776 (N.Y. App. Div. 2016)
• Parties: The PEOPLE of the State of New York, Respondent, v. Ferdinando PERILLO, also known as Fred, Appellant.
• Court: New York Supreme Court — Appellate Division

144 A.D.3d 1399

41 N.Y.S.3d 776

2016 N.Y. Slip Op. 07882

The PEOPLE of the State of New York, Respondent,

v.Ferdinando PERILLO, also known as Fred, Appellant.

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

Nov. 23, 2016.

Hug Law PLLC, Albany (Matthew C. Hug of counsel), for appellant.

Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), for respondent.

Before: PETERS, P.J., McCARTHY, LYNCH, ROSE and MULVEY, JJ.

MULVEY, J.

Appeal from a judgment of the County Court of Schenectady County(Milano, J.), rendered August 20, 2015, convicting defendant following a nonjury trial of the crimes of scheme to defraud in the first degree, grand larceny in the third degree (two counts) and grand larceny in the fourth degree.

In October 2014, defendant was charged in an 11–count indictment with one count of scheme to defraud in the first degree, two counts of criminal possession of a forged instrument in the second degree, five counts of grand larceny in the fourth degree and three counts of grand larceny in the third degree.In May 2015, after a nonjury trial, County Court found defendant guilty of one count of scheme to defraud in the first degree, two counts of criminal possession of a forged instrument in the second degree, two counts of grand larceny in the third degree and one count of grand larceny in the fourth degree.Prior to sentencing, County Court dismissed the two counts of criminal possession of a forged instrument in the second degree.Defendant was then sentenced to an aggregate prison term of 5 ½ to 11 years on the remaining counts and ordered to pay restitution to the victims in the amount of $38,500.Defendant now appeals.

On appeal, defendant first alleges that his convictions for grand larceny in the third degree (counts 4 and 8), grand larceny in the fourth degree (count 6) and scheme to defraud in the first degree (count 1) were not supported by legally sufficient evidence and were against the weight of the evidence.Initially we find that, because defendant's motions at the close of the People's case and again after the close of his proof were not directed at an alleged error, but, rather, were general in their scope, defendant failed to preserve his challenge to the legal sufficiency of the evidence (seePeople v. Gray,86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919[1995];People v. Farnham,136 A.D.3d 1215, 1215, 26 N.Y.S.3d 378[2016], lv. denied28 N.Y.3d 929, 40 N.Y.S.3d 357, 63 N.E.3d 77[2016];People v. Sudler,75 A.D.3d 901, 904, 906 N.Y.S.2d 373[2010], lv. denied15 N.Y.3d 956, 917 N.Y.S.2d 116, 942 N.E.2d 327[2010] ).“ However, a weight of the evidence challenge, which bears no preservation requirement, also requires consideration of the adequacy of the evidence as to each element of the crimes”(People v. Cruz,131 A.D.3d 724, 725, 14 N.Y.S.3d 804[2015], lv. denied26 N.Y.3d 1087, 23 N.Y.S.3d 644, 44 N.E.3d 942[2015];seePeople v. Thiel,134 A.D.3d 1237, 1239–1240, 21 N.Y.S.3d 745[2015], lv. denied27 N.Y.3d 1156, 39 N.Y.S.3d 389, 62 N.E.3d 129[2016] ).If “a different verdict would not have been unreasonable, we will weigh the probative force of conflicting testimony and the strength of conflicting inferences in determining whether the verdict is against the weight of the evidence”(People v. Shoemaker,119 A.D.3d 1073, 1074, 989 N.Y.S.2d 539[2014], lv. denied25 N.Y.3d 992, 10 N.Y.S.3d 535, 32 N.E.3d 972[2015];seePeople v. Reeves,124 A.D.3d 1068, 1068, 1 N.Y.S.3d 547[2015], lv. denied25 N.Y.3d 1076, 12 N.Y.S.3d 627, 34 N.E.3d 378[2015];People v. Farnham,136 A.D.3d at 1215–1216, 26 N.Y.S.3d 378;see generallyPeople v. Hardy,57 A.D.3d 1100, 1101–1102, 868 N.Y.S.2d 829[2008], lv. denied12 N.Y.3d 784, 879 N.Y.S.2d 60, 906 N.E.2d 1094[2009] ).“Issues of credibility and the weight to accord testimony are matters to be resolved by the trier of fact, who is free to accept or reject any part of the testimony presented”(People v. Rosa,57 A.D.3d 1018, 1019, 868 N.Y.S.2d 812[2008], lv. denied12 N.Y.3d 762, 876 N.Y.S.2d 713, 904 N.E.2d 850[2009][citations omitted];seePeople v. Beliard,101 A.D.3d 1236, 1239, 956 N.Y.S.2d 234[2012], lv. denied20 N.Y.3d 1096, 965 N.Y.S.2d 791, 988 N.E.2d 529[2013] ).

“A person is guilty of grand larceny in the third degree when he or she steals property and [ ] when the value of the property exceeds [$3,000]”(Penal Law § 155.35[1] ).As relevant here, “[a] person is guilty of grand larceny in the fourth when he[or she] steals property and when ... [t]he value of the property exceeds [$100] and the property consists of a motor vehicle ... other than a motorcycle”(Penal Law § 155.30[8] ).“A person is guilty of a scheme to defraud in the first degree when he or she: ... engages in a scheme constituting a systematic ongoing course of conduct with intent to defraud more than one person or to obtain property from more than one person by false or fraudulent pretenses, representations or promises, and so obtains property with a value in excess of [$1,000] from one or more such persons”(Penal Law § 190.65[1][b] ).

Count 4 of the indictment, charging defendant with grand larceny in the third degree, involved defendant stealing over $9,000 from Michael Mongillo.Mongillo testified that he and defendant became “best budd[ies].”On two occasions, under the pretense of promoting goodwill toward Ernie Richute, a mutual friend, defendant asked Mongillo for sums of $1,000, then $3,500, promising to repay it, which sums Mongillo gave to defendant in cash, “trust[ing] him implicitly.”Thereafter, defendant also asked Mongillo for a loan “to save [defendant's] shop from back taxes.”Mongillo took out a loan from a bank, using a 1957 Chevrolet allegedly owned by defendant as collateral, and gave defendant $5,000 in cash.The 1957 Chevrolet, however, was registered in Ralph Putrock's name and somehow defendant transferred the registration to his name, and then transferred it to Mongillo to secure the loan.Mongillo also testified about giving defendant“ $3,500 plus ...[$]150 to [$]200 a week” for a motorcycle, which he never received.Richute, a retired police sergeant and friend of defendant, testified that he had never received any money from defendant and, in fact, never had a conversation with defendant about needing to borrow money.

Count 6 of the indictment charged defendant with grand larceny in the fourth degree for stealing a 1976 Chevrolet Nova from Jolene Rust.She testified that she purchased a yellow 1976 Chevrolet Nova from Putrock and, after registering the vehicle, she eventually stored it at defendant's garage.She also testified that defendant required her to give him the title to her vehicle in order to store it at his shop.Although the title to the vehicle was in her name, Rust testified that it had been sold without her permission.Bruce DeSarbo, an acquaintance of defendant, testified that he bought a yellow 1976 Chevrolet Nova from defendant, who had informed DeSarbo that he was selling it for Putrock.Rust testified that she did not report the unlawful sale of her car out of fear of repercussions.

Count 8 of the indictment charged grand larceny in the third degree in connection with defendant's theft of over $10,000 from James Belcher.Belcher testified that he owned a 1966 Chevrolet Chevelle and, in 2010, contacted defendant about working on the vehicle.Defendant agreed to do the work for $4,500.Belcher put $3,000 cash down as a deposit, and, although defendant began to work on the car, after a time, Belcher noticed that the work “kind of went by the wayside.”Defendant then told Belcher that he was having financial trouble and requested the remainder of payment; Belcher gave defendant $1,000, holding off on $500 because he noted that defendant“got nothing done” on his vehicle and continually made excuses.Belcher further testified that defendant helped him order 60 parts for the vehicle from a Pennsylvania aftermarket company at a cost to Belcher of approximately $10,000.He also testified that, out of the 60 parts ordered, he received five, representing $100 of the $10,000 he paid to defendant.When Belcher attempted to recover his vehicle from defendant's garage and procure the remaining 55 parts that defendant had purportedly ordered from the aftermarket company, he learned that defendant had never ordered the parts.

With regard to count 1, charging scheme to defraud in the first degree, defendant operated an auto body garage, also used as a clubhouse, where acquaintances, neighbors and friends worked on classic cars.Over the course of three years, defendant manipulated acquaintances and friends out of money and property by obtaining money from individuals under false pretenses and never repaying it, selling vehicles stored at his garage to third parties without permission from the owners and purporting to buy replacement parts for their vehicles, but never purchasing said parts.A host of witnesses established that, repeatedly and over a three-year period, defendant bilked his friends, neighbors and customers out of thousands of dollars in money, property and services by a pattern of preying upon and manipulating their ignorance, sympathies and their trust.

Defendant's witnesses did not contradict the evidence upon which defendant was convicted.Defendant testified in his own defense and offered his version of events, which, after considering all of the evidence and observing the witnesses' demeanor, County Court properly disregarded.Weighing the evidence in a neutral light and deferring to County Court's first-hand credibility assessments, we find that, based on the record before us, the weight of the credible evidence amply supported the verdict (seePeople v. Scaringe,137 A.D.3d 1409, 1416, 27 N.Y.S.3d 712[2016], lv. denied28 N.Y.3d 936, 40 N.Y.S.3d 364, 63 N.E.3d 84[2016];People v. Farnham,136 A.D.3d at 1217, 26 N.Y.S.3d 378;People v. Thiel,134 A.D.3d at...