People v. Saxton

• Decision Date: 08 July 2010
• Citation: 75 A.D.3d 755,907 N.Y.S.2d 316
• Parties: The PEOPLE of the State of New York, Respondent, v. Richard T. SAXTON, Appellant.
• Court: New York Supreme Court — Appellate Division

907 N.Y.S.2d 316

75 A.D.3d 755

The PEOPLE of the State of New York, Respondent,

v.Richard T. SAXTON, Appellant.

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

July 8, 2010.

Harris Beach, P.L.L.C., Albany (Joan Sullivan of counsel), for appellant.

James A. Murphy III, District Attorney, Ballston Spa (Nicholas E. Tishler of counsel), for respondent.

Before: CARDONA, P.J., MERCURE, LAHTINEN, MALONE JR. and EGAN JR., JJ.

EGAN JR., J.

Appeal from a judgment of the County Court of Saratoga County (McKeighan, J.), rendered January 8, 2009, upon a verdict convicting defendant of the crimes of falsifying business records in the first degree, failure to pay benefits and criminal contempt in the second degree.

Defendant was an officer of an Internet startup company known as Wurld Media, Inc. In 2005, Wurld Media began to experience a series of financial difficulties, culminating in an inabilityof the company to make payroll in 2006. In response to this, Wurld Media instituted an "advance program," whereby employees who had not received their regular paychecks could, however, request an advance of money when needed. Defendant supervised both Wurld Media's payroll and its general ledger, in which was documented the company's financial transactions. Advances were disbursed by either defendant or another officer, were reflected on the general ledger as "loans" and not payroll, and were not reported as amounts paid to employees on Wurld Media's 2006 third and fourth quarter New York State tax reports. Wurld Media also failed to make the required 401k contributions from May 2006 through December 2006.

In December 2006, CitiCapital Technology Finance, Inc., an entity that had financed some of the equipment belonging to Wurld Media, obtained a money judgment against Wurld Media in the amount of $145,004.10. In March 2007, upon the application of CitiCapital, Supreme Court (Ferradino, J.) issued a restraining notice prohibiting Wurld Media from transferring, disbursing or otherwise dissipating "payment of proceeds from any sale or transfer of title or assets of [Wurld Media]."

At the same time it was encountering these financial difficulties, Wurld Media was engaged in negotiations to be acquired by Roo Media Group, Inc. Based on a tentative agreement reached between Roo and Wurld Media, between May 2007 and July 2007, Roo made a series of payments in an amount over $454,000 as advances on the purchase of Wurld Media's assets, but the funds were deposited into the personal bank account maintained by Gregory Kerber (Wurld Media's chief executive officer). Kerber then, in turn, made corresponding deposits, in an amount over $451,000, into an account owned by Peer Media Network Corporation, a company affiliated with Wurld Media. From May 2007 through July 2007, defendant, a signatory to the Peer Media account, made disbursements from this same Peer Media account to satisfy debts owed by Wurld Media and also issued a number of checks made payable to himself. In July 2007, Roo and Wurld Media entered into an asset purchase agreement, which, among other things, set forth that part of the purchaseprice consisted of $800,000 already advanced to Wurld Media.

In November 2007, as a result of a criminal investigation conducted into Wurld Media's operations based on complaints made by former employees that the company failed to pay them for several months, the company improperly listed advances paid to those employees as loans to avoid taxes and also withheld 401k contributions, defendant was charged in a nine-COUNT INDICTMENT WITH offering a false instrument for filing in the first degree (two counts), falsifying business records in the first degree, failure to withhold income taxes, failure to pay benefits,¹ grand larceny in the second degree, grand larceny in the third degree, criminal contempt in the second degree, and money laundering in the fourth degree. Following a jury trial, defendant was convicted of falsifying business records in the first degree (count 3), failure to pay benefits (count 5) and criminal contempt in the second degree (count 8). Upon his conviction, defendant was sentenced to six months in jail, five years of probation and fines. Defendant now appeals.

Initially, we find that count 5 of the indictment, charging defendant with a violation of Labor Law § 198-c, is preempted by the Federal Employee Retirement Income Security Act of 1974 ( see 29 USC § 1001 et seq. [hereinafter ERISA] ). ERISA was "designed to promote the interests of employees and their beneficiaries in employee benefit plans" ( Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 90, 103 S.Ct. 2890, 77 L.Ed.2d 490 [1983] ). With certain exceptions,² ERISA "supersede[s] any and all [s]tate laws insofar as they may now or hereafter relate to any employee benefit plan" ( 29 USC § 1144[a]; see Shaw v. Delta Air Lines, Inc., 463 U.S. at 98, 103 S.Ct. 2890; Sasso v. Vachris, 66 N.Y.2d 28, 31, 494 N.Y.S.2d 856, 484 N.E.2d 1359 [1985]; Potter v. Blue Shield of Northeastern N.Y., 216 A.D.2d 773, 774, 629 N.Y.S.2d 93 [1995] ). Labor Law § 198-c applies to "any employer who is party to an agreement to pay or provide benefits or wage supplements to employees or to a third party or fund for the benefit of employees and who fails, neglects or refuses to pay the amount or amounts necessary to provide such benefits or furnish such supplements within thirty days after such payments are required to be made" ( Labor Law § 198-c[1] ). When applying the "broad common-sense meaning" of the statutory phrase "relate [s] to" ( Matter of Morgan Guar. Trust Co. of N.Y. v. Tax Appeals Trib. of N.Y. State Dept. of Taxation & Fin., 80 N.Y.2d 44, 49, 599 N.E.2d 656 [1992] ), we conclude that Labor Law § 198-c has more than a tenuous, remote or peripheral connection to employee benefit plans ( see id.; see also Shaw v. Delta Air Lines, Inc., 463 U.S. at 100 n. 21, 103 S.Ct. 2890) and is therefore preempted by ERISA. As such, defendant's conviction of failure to pay benefits under count 5 of the indictment must be reversed.

Next, while we disagree that County Court committed reversible error by refusing to grant a circumstantial evidence charge regarding count 3 of the indictment, falsifying business records in the first degree, we reach a different conclusionwith respect to count 8 of the indictment, criminal contempt in the second degree. "Whenever a case relies wholly on circumstantial evidence to establish all elements of the charge, the jury should be instructed, in substance, that the evidence must establish guilt to a moral certainty. However, where a charge is supported with both circumstantial and direct evidence, the court need not so charge the jury" ( People v. Daddona, 81 N.Y.2d 990, 992, 599 N.Y.S.2d 530, 615 N.E.2d 1014 [1993] [citations omitted] ). While there was direct evidence in the record to support count 3 of the indictment, namely that defendant was responsible for the creation of the financial records alleged to be false, there was no direct evidence linking defendant with the March 2007 restraining notice, which is the court order that defendant was alleged to have violated under count 8. The trial testimony revealed, simply, that the order was mailed to Wurld Media's offices located in the City of Saratoga Springs, Saratoga County by a paralegal employed by CitiCapital's attorneys. Insofar as additional inferences are necessary to reach the conclusion that defendant had notice of and subsequently intentionally disobeyed the March 2007 order ( see Penal Law § 215.50[3] ), the circumstantial evidence charge was required, and County Court's failure to so charge the jury cannot be considered harmless ( see People v. Spencer, 1 A.D.3d 709, 710, 767 N.Y.S.2d 154 [2003] ).

We turn next to defendant's contention that his conviction of count 3 was not supported by legally sufficient evidence and was against the weight of the evidence. "When considering a challenge to the legal sufficiency of the evidence, we view the evidence in the light most favorable to the People and will not disturb the verdict if the evidence demonstrates a valid line of reasoning and permissible inferences that could lead a rational person to the conclusion reached by the jury" ( People v. Maricevic, 52 A.D.3d 1043, 1044, 860 N.Y.S.2d 666 [2008], lv. denied 11 N.Y.3d 790, 866 N.Y.S.2d 617, 896 N.E.2d 103 [2008] [citations omitted]; see People v. Hampton, 64 A.D.3d 872, 874, 883 N.Y.S.2d 338 [2009], lv. denied 13 N.Y.3d 796, 887 N.Y.S.2d 546, 916 N.E.2d 441 [2009] ). A person is guilty of falsifying business records in the first degree when he or she "(1) [m]akes or causes a false entry in the business records of an enterprise; or (2)[a]lters, erases, obliterates, deletes, removes or destroys a true entry in the business records of an enterprise; or (3)[o]mits to make a true entry in the business records of an enterprise in violation of a duty to do so which he [or she] knows to be imposed upon him [or her] by law or by the nature of his [or her] position; or (4)[p]revents the makingof a true entry or causes the omission thereof in the business records of an...