People v. Rogers

• Decision Date: 04 January 2018
• Docket Number: 108775
• Citation: 69 N.Y.S.3d 384,157 A.D.3d 1001
• Parties: The PEOPLE of the State of New York, Respondent, v. Kevin ROGERS, Appellant.
• Court: New York Supreme Court — Appellate Division

157 A.D.3d 1001

69 N.Y.S.3d 384

The PEOPLE of the State of New York, Respondent,

v.Kevin ROGERS, Appellant.

108775

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

Calendar Date: November 13, 2017

Decided and Entered: January 4, 2018

Trevor W. Hannigan, Albany, for appellant.

Eric T. Schneiderman, Attorney General, New York City (James F. Gibbons of counsel), for respondent.

Before: Garry, P.J., Clark, Mulvey, Aarons and Rumsey, JJ.

MEMORANDUM AND ORDER

Garry, P.J.

Appeal from a judgment of the County Court of Rensselaer County (Young, J.), rendered September 23, 2016, upon a verdict convicting defendant of the crime of grand larceny in the third degree.

In May 2010, a State Police investigator (hereinafter the investigator) commenced an investigation of alleged drug trafficking by correction officers at the Rensselaer County Jail. The investigator thereafter also began looking into the possible misuse of funds by officials of the correction officers' union, the Sheriff's Employees Association of Rensselaer County (hereinafter SEARCO). Defendant, a correction officer at the jail, was not a target of the drug investigation. However, as the vice-president of SEARCO, he and the union president, Mark Piche, subsequently became targets of the SEARCO inquiry.

In early 2011, the Rensselaer County District Attorney recused himself, and both investigations were taken over by the U.S. Attorney's office for the Northern District of New York. The drug investigation terminated in November 2011, but an extensive investigation of SEARCO's finances continued. In September 2013, Piche pleaded guilty to a federal tax felony pursuant to an agreement that he would testify against defendant. A federal grand jury was convened in 2014, but defendant was not indicted. Federal prosecutors subsequently determined that defendant's activities did not constitute federal offenses, and the Attorney General's office took over the prosecution.

Defendant was indicted on four charges arising out of the SEARCO investigation in October 2015. He moved to dismiss the indictment on several grounds. County Court conducted a Singer hearing to determine whether there was good cause for the delay in prosecution and denied the motion. After a jury trial, defendant was convicted of grand larceny in the third degree.¹ County Court denied defendant's two CPL 330.30 motions to set aside the verdict, conducted a restitution hearing, sentenced defendant to 60 days in prison and five years of probation, and ordered him to pay $10,979.14 in restitution. Defendant appeals.

County Court correctly declined to dismiss the indictment on the ground that the Attorney General's office lacked jurisdiction to prosecute defendant. County Law § 700(1) confers the duty and authority to conduct criminal prosecutions upon county district attorneys, and the Attorney General has prosecutorial power only "when specifically authorized by statute" ( People v. Gilmour, 98 N.Y.2d 126, 131, 746 N.Y.S.2d 114, 773 N.E.2d 479 [2002] [internal quotation marks, emphasis and citations omitted]; see People v. Cuttita, 7 N.Y.3d 500, 507, 824 N.Y.S.2d 771, 858 N.E.2d 318 [2006] ). Such authority is provided by Executive Law § 63(3), which states, as pertinent here, that upon the request of "the head of any ... department, authority, division or agency of the state," the Attorney General may investigate and prosecute potentially illegal activity that falls within the authority of the officer who made the request. These statutory requirements were met by a May 2015 letter from the Superintendent of the State Police that asked the Attorney General to review and, if appropriate, prosecute the SEARCO matter (see People v. Miran, 107 A.D.3d 28, 35, 964 N.Y.S.2d 309 [2013], lv denied 21 N.Y.3d 1044, 972 N.Y.S.2d 541, 995 N.E.2d 857 [2013], cert denied––– U.S. ––––, 134 S.Ct. 2312, 189 L.Ed.2d 177 [2014] ; People v. Stuart, 263 A.D.2d 347, 348–349, 705 N.Y.S.2d 729 [2000] ). Contrary to defendant's argument, the prosecutorial authority established by this request was not negated because the Attorney General's staff had previously reviewed investigation files, spoken with participants in the federal investigation and informed the investigator that a referral pursuant to Executive Law § 63(3) was required (see People v. Codina, 297 A.D.2d 539, 541, 747 N.Y.S.2d 209 [2002], lv denied 98 N.Y.2d 767, 752 N.Y.S.2d 7, 781 N.E.2d 919 [2002] ; Matter of L & S Hosp. & Inst. Supplies Co. v. Hynes, 84 Misc.2d 431, 435–436, 375 N.Y.S.2d 934 [1975], affd 51 A.D.2d 515, 378 N.Y.S.2d 78 [1976] ).

We reject defendant's contention that the indictment should have been dismissed on the ground that the prosecution was not commenced within the five-year limitations period applicable to grand larceny in the third degree (see CPL 30.10[2][b] ; Penal Law § 155.35 ). "It is well settled that grand larceny may be charged as a series of single larcenies governed by a common fraudulent scheme or plan even though the successive takings extended over a long period of time" ( People v. Arnold, 15 A.D.3d 783, 785, 790 N.Y.S.2d 291 [2005] [internal quotation marks and citations omitted], lv denied 4 N.Y.3d 851, 797 N.Y.S.2d 425, 830 N.E.2d 324 [2005] ; see People v. Cox, 286 N.Y. 137, 142–143, 36 N.E.2d 84 [1941] ). When so charged, grand larceny is a continuing crime, and the statute of limitations begins to run upon the commission of the last offense in the series (see People v. Perry, 114 A.D.3d 1282, 1283, 980 N.Y.S.2d 225 [2014], lv denied 22 N.Y.3d 1201, 986 N.Y.S.2d 422, 9 N.E.3d 917 [2014] ; People v. Arnold, 15 A.D.3d at 785, 790 N.Y.S.2d 291 ; see also People v. Scanlon, 52 A.D.3d 1035, 1037, 861 N.Y.S.2d 426 [2008], lv denied 11 N.Y.3d 741, 864 N.Y.S.2d 399, 894 N.E.2d 663 [2008] ; People v. DeBeer, 35 A.D.3d 1275, 1276, 826 N.Y.S.2d 537 [2006], lv denied 8 N.Y.3d 921, 834 N.Y.S.2d 511, 866 N.E.2d 457 [2007] ).

The proof established that Piche and defendant were named as SEARCO's senior officers shortly after they formed SEARCO with a third individual in 2004.² SEARCO members paid dues to the union via mandatory paycheck deductions, and the funds were deposited into a SEARCO bank account. Piche and defendant were the only signatories on this account and were both issued debit cards. Piche testified that he and defendant used this account to pay for such SEARCO expenditures as legal fees, expenses related to SEARCO operations and meetings, and charitable donations. Piche wrote checks to cover these expenses and never used his debit card. Defendant used his debit card, sometimes in Piche's presence. In 2009, Piche reviewed the bank statements and noticed that defendant's debit card had been used for "a lot of expenditures." The People assert that defendant used the debit card on multiple occasions between 2006 and 2009 for restaurant meals, cash withdrawals and other transactions for his own benefit rather than SEARCO purposes.

After a discussion with SEARCO's counsel, Piche transferred the union funds to another account where defendant had no check-signing privileges and no debit cards were issued. Defendant continued to make charitable donations on SEARCO's behalf by requesting checks from Piche, who testified that he sometimes signed blank checks for this purpose and gave them to defendant to complete. Defendant requested two such checks in July 2010 and January 2011, telling Piche that they were for donations to support the career of a local boxer. Piche signed the checks and gave them to defendant without filling in the payee's name, and defendant made them out to an organization called Pugnacious Promotions, the first in the amount of $1,200 and the second in the amount of $600. The People assert that Pugnacious Promotions was a for-profit business that organized boxing events but did not provide donations or individual sponsorships to boxers. They claim that defendant used the 2010 and 2011 checks for his own benefit to purchase ringside tables at boxing events.

We are unpersuaded by defendant's contention that the change in defendant's modus operandi to using checks to obtain SEARCO funds after he lost access to the debit card represented a new, separate scheme that cannot be aggregated with the previous offenses, and that the statute of limitations therefore began to run when defendant last used the debit card in December 2009. The indictment charged defendant with grand larceny in the third degree based on thefts from SEARCO between August 2006 and January 2011, and the People's theory as to all of the alleged thefts was that defendant relied upon his authority as a union official to access SEARCO funds that were intended to be used for union purposes, and used them instead to benefit himself. Each single larceny was alleged to be part of a common fraudulent scheme by which defendant made a series of thefts from the same owner for the same purpose. Thus, the offenses were properly aggregated as one continuing crime that terminated upon the last transaction in January 2011, and the action was timely commenced less than five years later with the filing of a criminal complaint in July 2015 (see CPL 1.20[17] ; People v. Perry, 114 A.D.3d at 1283, 980 N.Y.S.2d 225 ; People v. Arnold, 15 A.D.3d at 785, 790 N.Y.S.2d 291 ).

County Court properly denied defendant's motion to dismiss the indictment on the ground that his due process rights were violated by the delay between the 2011 commencement of the SEARCO investigation and defendant's 2015 indictment. A defendant's due process rights are violated when preindictment delay is unjustified (see People v. Decker, 13 N.Y.3d 12, 14, 884 N.Y.S.2d 662, 912 N.E.2d 1041 [2009] ; People v. Lesiuk, 81 N.Y.2d 485, 490, 600 N.Y.S.2d 931, 617 N.E.2d 1047 [1993] ). Where, as here, the delay is protracted, the burden is on the People to establish good cause (see People v. Decker, 13 N.Y.3d at 14, 884 N.Y.S.2d 662, 912 N.E.2d 1041 ; People v. Singer, 44 N.Y.2d 241, 254, 405 N.Y.S.2d 17...