People v. Surprenant

• Decision Date: 13 January 1983
• Citation: 458 N.Y.S.2d 363,91 A.D.2d 1111
• Parties: The PEOPLE of the State of New York, Appellant, v. Robert T. SURPRENANT, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 363

458 N.Y.S.2d 363

91 A.D.2d 1111

The PEOPLE of the State of New York, Appellant, v.Robert T. SURPRENANT, Respondent.

Supreme Court, Appellate Division Third Department.

Jan. 13, 1983.

Edward J. Kuriansky, Deputy Atty. Gen., New York City(Bonnie Stein, New York City, of counsel), for appellant Medicaid Fraud Control.

McMahon & McMahon, Saratoga Springs (John L. McMahon, Saratoga Springs, of counsel), for respondent.

Before MAIN, J.P., and CASEY, MIKOLL, YESAWICH and LEVINE, JJ.

MEMORANDUM DECISION.

Appeal from an order of the County Court of Warren County, entered March 10, 1982, which granted defendant's motion to dismiss the indictment in the interest of justice.

Defendant was indicted on November 7, 1980 for two counts of grand larceny in the second degree and 11 counts of grand larceny in the third degree.The indictment arose out of an investigation conducted by the Attorney-General's New York Medicaid Fraud Control Unit regarding offenses committed in the operation and management of hospitals located within the State.The investigation centered on the theft of used or defective X-ray film for its silver content by X-ray technicians of various hospitals.By custom these technicians were entrusted with the sale of such film to salvage companies and a return of the proceeds to the hospitals by whom they were employed.The investigations revealed that many of the technicians were receiving "kick backs" from the salvage companies.

An audit of the books and records of a salvager named Novobilsky revealed such sales and Novobilsky was subpoenaed before the investigating Grand Jury.His testimony disclosed that defendant, who was then the chief X-ray technician at Glens Falls Hospital, sold X-ray film to him, and certain cancelled checks made out to cash and endorsed by defendant were found in Novobilsky's records.When confronted with these checks, defendant is said to have admitted keeping a portion of the money that he received from the sales.This testimony supplied the basis for defendant's indictment.When the evidence was concluded, the Assistant Attorney-General instructed the Grand Jury to treat Novobilsky "as an accomplice as a matter of law", whose testimony was insufficient for an indictment unless the Grand Jury found "from some other source, evidence connecting the defendant with the commission of the crimes".

On February 11, 1981, defendant filed an omnibus motion, requesting an order releasing the Grand Jury minutes to him, a bill of particulars, and discovery and inspection of most of the prosecution's evidence, one item of which was the statement or testimony given by any unindicted accomplice.Defendant also moved to dismiss the indictment as unsupported by legally sufficient evidence.The...