People v. Silvernail
| Citation | 389 N.Y.S.2d 641,55 A.D.2d 72 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Richard S. SILVERNAIL, Appellant. |
| Decision Date | 20 December 1976 |
| Court | New York Supreme Court Appellate Division |
Paul R. Shanahan, Syracuse, for appellant.
D. Bruce Crew, III, Dist. Atty., Elmira, (Ransom P. Reynolds, Jr., Elmira, of counsel), for respondent.
Before KOREMAN, P.J., and GREENBLOTT, KANE, LARKIN and HERLIHY, JJ.
The defendant was indicted on September 25, 1974 and charged with the theft of $49,600 from the City of Elmira between the dates of July 13, 1972 and November 21, 1972 by wrongfully and fraudulently submitting inflated billings and invoices to the City for demolition of flood damaged property, with knowledge that such billings and invoices were inflated, causing the City to overpay defendant in the above amount. The defendant's company (owned by defendant and his wife) entered into a contract with the City to do both clean up and demolition work. The contract was in standard form used previously by the City, and provided for individual hourly prices or rates for various types of equipment, and the bid price included the services of an experienced driver.
The invoices for the amounts to be paid to the defendant were drawn up by defendant's wife and submitted by the defendant. There is testimony to the effect that the billings for debris work were accurate, that the city kept track of the debris work, and that defendant's records of such work were checked by the City before invoices were made out. However, the City's manpower was insufficient and inadequate to properly supervise the demolition work, and the City was only able to determine what buildings were demolished, out not what machines, equipment, or men were used to demolish them.
The prosecution's case rests on the discrepancy between the hours defendant billed the City reflecting use of machinery, and the number of hours worked by defendant's employees as determined from defendant's payroll ledger and time book. Evidence introduced by the prosecution shows that defendant billed the City for 18,553 machine hours from July 25 to November 21, 1972, while defendant's daily time books revealed total employee hours of 12,347 for the same period. Since it would appear that the machines could not be used or operated without an employee to man them, it was established that the defendant overbilled the City for 6,205 machine hours. Although the City did pay an hourly rate up to $35 on some machines, based on the lowest rate it paid of $9, defendant was charged with the theft of $49,600.
The main thrust of defendant's contentions on this appeal is that he was improperly convicted of the crime of grand larceny upon a theory which is in substantial variance with the charge set forth in the indictment, and that his conviction resulted from acts alleged to have been committed by him, which were not charged against him. We do not find this argument persuasive.
Proof was submitted by the defendant for the purpose of explaining away the discrepancy which formed the basis for the charge of grand larceny. In addition to his attempt to show that he paid for man-hours that were not included in the prosecution's calculations, he also produced as a witness Clarence Fleming, Assistant Director of the Department of Public Works for the City of Elmira. This witness testified that he agreed to pay defendant 10% More than he was entitled to under his contract with the City by adding 10% To defendant's total machine hours to cover the cost of demolition insurance required of the defendant. Fleming also testified that the...
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...of whether the jury should be permitted to separate during deliberations. Relying upon the Third Department case of People v. Silvernail, 55 A.D.2d 72, 389 N.Y.S.2d 641, the prosecutor stated that he had no objection to allowing the jury to separate as long as the defendant personally waive......
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