People v. Stuart

• Citation: 509 N.Y.S.2d 824,123 A.D.2d 46
• Parties: The PEOPLE, etc., Respondent, v. Walter STUART, Perry Stuart and Long Island Airports Limousine Service Corp., Appellants.
• Decision Date: 22 December 1986
• Court: New York Supreme Court Appellate Division

Page 824

509 N.Y.S.2d 824

123 A.D.2d 46

The PEOPLE, etc., Respondent, v. Walter STUART, Perry Stuart and Long Island Airports

Limousine Service Corp., Appellants.

Supreme Court, Appellate Division,

Second Department.

Dec. 22, 1986.

Gulotta & Stein, Mineola (Frank A. Gulotta, of counsel), for appellants.

Patrick Henry, Dist. Atty., Riverhead (Steven A. Hovani, of counsel), for respondent.

Before LAZER, J.P., and MANGANO, BRACKEN and KOOPER, JJ.

PER CURIAM.

On these appeals, the defendants challenge the judgments of conviction rendered against them, and the order denying their postjudgment motion for vacatur (see, CPL 440.10). Although we conclude that the defendants' claims are, for the most part, unavailing, we find merit to their assertion that their convictions on certain counts were not supported by legally sufficient evidence. Accordingly, we modify the judgments and remit the case for resentencing on the remaining counts.

We commence our analysis by addressing the defendants' contention that the denial of that branch of their pretrial motion which was to dismiss the indictment was error. A review of the Grand Jury minutes and the papers filed in conjunction with the defendants' motion discloses that neither the conduct of the prosecuting attorneys nor that of the police officials involved in the investigation was so egregious as to require dismissal of the indictment (see, People v. Isaacson, 44 N.Y.2d 511, 406 N.Y.S.2d 714, 378 N.E.2d 78; People v. Rao, 73 A.D.2d 88, 425 N.Y.S.2d 122; People v. Monroe, 125 Misc.2d 550, 480 N.Y.S.2d 259). Moreover, the defendants did not sustain their weighty burden of establishing that the instant prosecution constituted a selective application of the law resulting from a pattern of impermissible discrimination consciously practiced (see, Matter of 303 West 42nd St. Corp. v. Klein, 46 N.Y.2d 686, 693-695, 416 N.Y.S.2d 219, 389 N.E.2d 815; People v. Goodman, 31 N.Y.2d 262, 268, 338 N.Y.S.2d 97, 290 N.E.2d 139; People v. Carter, 86 A.D.2d 451, 453, 450 N.Y.S.2d 203). Further, the defendants failed to adduce factually detailed sworn allegations which would entitle them to a hearing on this issue (see, Matter of 303 West 42nd St. Corp. v. Klein, supra, 46 N.Y.2d at pp. 695-696, 416 N.Y.S.2d 219, 389 N.E.2d 815).

In addition, the denial of that branch of the defendants' pretrial motion which was to suppress all of the physical evidence seized pursuant to the execution of two search warrants at the office of the defendant Long Island Airports Limousine Service Corp. (hereinafter LIALS) on October 13, 1982 was not error. With regard to the facial validity of the warrants, the descriptions contained therein of the items to be seized were sufficiently definite, under the facts and circumstances of this case, to enable the police officers executing the warrants to properly identify the documents to be seized (see, People v. Nieves, 36 N.Y.2d 396, 401, 369 N.Y.S.2d 50, 330 N.E.2d 26). As to the manner in which the warrants were executed, the evidence supports the suppression court's determination that the executing officers were adequately apprised of the terms of the warrants, the spatial limitations contained in the warrants were substantially complied with, and a good faith effort was made to seize only those items specifically enumerated in the warrants (see, United States v. Heldt, 668 F.2d 1238, cert. denied sub nom. Hubbard v. United States, 456 U.S. 926, 102 S.Ct. 1971, 72 L.Ed.2d 440). In any event, any items improperly seized were suppressed by the hearing court.

The defendants also challenge the legal sufficiency of the evidence supporting each of the counts upon which they were convicted. In passing upon their contention, we must view the evidence in the light most favorable to the prosecution (see, e.g., People v. Malizia, 62 N.Y.2d 755, 757, 476 N.Y.S.2d 825, 465 N.E.2d 364, cert. denied 469 U.S. 932, 105 S.Ct. 327, 83 L.Ed.2d 264), bearing in mind that issues of credibility are to be resolved by the trier of fact (see, People v. Malizia, supra, at p. 757, 476 N.Y.S.2d 825, 465 N.E.2d 364; People v. Shapiro, 117 A.D.2d 688, 498 N.Y.S.2d 428). The test for legal sufficiency is whether " 'any rational trier of fact could have found the essential elements of the crimebeyond a reasonable doubt' " (People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932; quoting from Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560). Moreover, because the proof adduced by the prosecution in this case was wholly circumstantial with respect to certain counts, we must determine whether the facts from which the inference of guilt was drawn reasonably permitted the trier of fact to conclude that the evidence excluded to a moral certainty every reasonable hypothesis save that of guilt (see, People v. Betancourt, 68 N.Y.2d 707, 708-709, 506 N.Y.S.2d 310, 497 N.E.2d 677; People v. Marin, 65 N.Y.2d 741, 742, 492 N.Y.S.2d 16, 481 N.E.2d 556; People v. Giuliano, 65 N.Y.2d 766, 767-768, 492 N.Y.S.2d 939, 482 N.E.2d 557; People v. Paul, 114 A.D.2d 426, 494 N.Y.S.2d 842).

The defendants Walter Stuart and Perry Stuart served as president and vice-president, respectively, of the defendant LIALS, a corporation engaged in the business, among other things, of providing public transportation between Nassau and Suffolk Counties and Kennedy and LaGuardia Airports and Queens Plaza in Queens County. The defendants' convictions of attempted grand larceny in the second degree and offering a false instrument for filing in the first degree were based upon their participation in the Mass Transit Operating Assistance Program (hereinafter MTOA), a program providing carriers with subsidies from the State, through the county, based upon a formula taking into account the number of revenue-generating miles traveled and the number of revenue-paying passengers carried on "line runi.e., regular trips between established locations pursuant to fixed, predetermined time schedules. During the second quarter of 1982, operators were entitled to payment under the MTOA program at the rate of $0.135 per revenue passenger and $0.415 per revenue mile; after the amount of reimbursement was calculated, it was then discounted to 83 percent. According to the People, the defendants filed a quarterly report, as required, with the transportation division of the Suffolk County Planning Department for the quarter in question, which falsely overstated mileage and passenger counts on their airport line runs and Queens Plaza line runs with the intent to obtain funds in excess of the amount to which they were entitled. However, during the trial, the prosecutor specifically and unequivocally withdrew any claims by the People with respect to falsification of mileage counts, and undertook to prove the two counts in question solely on the basis of false passenger counts.

There was no dispute at the trial that the figures contained in the quarterly report purporting to reflect the total numbers of passengers carried during that quarter were inaccurate. In fact, a comparison of the quarterly report with the defendants' own summaries of passenger counts for individual airport line runs during that quarter revealed an overstatement of 17,798 passengers in the report. On the basis of the formula in effect at the time, that overstatement would have resulted in an overpayment to the defendants of approximately $1,994.00.

Martin Gach, who had served as a consultant to the defendants during the relevant time period, testified that he had prepared the quarterly report in question. According to Gach, he was told by the defendant Perry Stuart to obtain the passenger count figures for airport runs, to be included in the quarterly report, from a certain record book kept on Perry Stuart's desk. However, Gach testified that he had mistakenly taken the wrong book, which contained total passenger counts (including runs other than airport runs). Consequently, Gach had inadvertently inserted the wrong figures in the quarterly report. Gach further testified that in October 1982, an audit of LIALS was conducted by Nassau County and that, during the course of that audit, Gach's error was first detected by Perry Stuart, who immediately advised the auditor of the resulting inaccuracy in the quarterly report. However, in sharp contrast, John Dorosk, the Nassau County auditor, testified that he had never been shown the book from which Gach had allegedly obtained the erroneous passenger counts, nor had he ever been told that the figures in the quarterly report were in error.

The contradictory testimony of Gach and Dorosk presented a sharp issue of credibility for the trier of fact. The trial court, by its verdict, apparently resolved that issue in favor of Dorosk, thereby rejecting Gach's claim that the erroneous passenger counts were placed in the report as the result of his inadvertence and without the knowledge of the defendants. However, it does not follow that the remaining evidence with respect to the two counts in question was sufficient to sustain the convictions thereunder, and such evidence did not, in our view, exclude to a moral certainty every reasonable hypothesis of innocence (see, People v. Levine, 65 N.Y.2d 845, 847, 493 N.Y.S.2d 290, 482 N.E.2d 1206; People v. Giuliano, 65 N.Y.2d 766, 767-768, 492 N.Y.S.2d 939, 482 N.E.2d 557, supra; People v. Marin, 65 N.Y.2d 741, 742, 492 N.Y.S.2d 16, 481 N.E.2d 556, supra ). Such evidence established no more than that the corporate defendant LIALS filed a...