People v. Weiss

• Decision Date: 18 October 2012
• Citation: 952 N.Y.S.2d 637,99 A.D.3d 1035,2012 N.Y. Slip Op. 06998
• Court: New York Supreme Court — Appellate Division
• Parties: The PEOPLE of the State of New York, Respondent–Appellant, v. Michelle WEISS, Also Known as Michelle Jeker, Appellant–Respondent.

99 A.D.3d 1035

952 N.Y.S.2d 637

2012 N.Y. Slip Op. 06998

The PEOPLE of the State of New York, Respondent–Appellant,

v.Michelle WEISS, Also Known as Michelle Jeker, Appellant–Respondent.

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

Oct. 18, 2012.

Cynthia Feathers, Glens Falls, for appellant-respondent.

Gerald F. Mollen, District Attorney, Binghamton (Joann Rose Parry of counsel), for respondent-appellant.

Before: PETERS, P.J., LAHTINEN, KAVANAGH, STEIN and EGAN JR., JJ.

PETERS, P.J.

Cross appeals from a judgment of the County Court of Broome County (Cerio, J.), rendered February 8, 2011, upon a verdict convicting defendant of the crime of perjury in the first degree (two counts).

In October 2005, during a time when defendant and her former husband, Brian Jeker, were involved in a hotly contested custody dispute concerning their children, defendant claimed that Jeker assaulted her as she was leaving a “pee wee” football game in the Town of Maine, Broome County. When police responded to the incident, they found defendant visibly injured. Two witnesses, Megan Schmid and Stephanie Murphy, provided sworn statements depicting a man of Jeker's description as the assailant. Jeker was thereafter charged in connection with the incident but, on the eve of his trial, Schmid and Murphy each recanted their statements. In so doing, Schmid explained to the prosecutor that the injuries defendant suffered, rather than being caused by Jeker, were the result of a planned and consensual attack against defendant. In plotting the assault, defendant met Murphy through a mutual acquaintance, Kevin Hyde, and then defendant, Murphy and Schmid met at a restaurant where defendant offered Murphy and Schmid $500 to falsely report that Jeker caused her injuries. As part of the plot, defendant was attacked by a neighbor of Murphy and Schmid, whom defendant had paid $50, and self inflicted some of her injuries with a razor blade. Accordingly, the charge against Jeker was dismissed.

Thereafter, in February 2006, defendant approached Murphy and offered to pay her a sum of money to sign a notarized statement retracting her earlier recantation and reasserting the truth of her initial statement. As a result, defendant was indicted and, in May 2007, she pleaded guilty to the crime of attempted bribing of a witness and was sentenced to five years of probation. During her plea allocution, defendant admitted only that she sought to influence Murphy as a witness in a court proceeding by preparing for her an affidavit with which Murphy had no involvement or input. The plea neither required defendant to admit that the attack against her was orchestrated by her or that Jeker was the assailant. Such plea was in satisfaction of any charges regarding her fabrication of the assault, including any prosecution related to perjured testimony that defendant provided in a 2005 deposition concerning the child custody proceeding during which she described Jeker as the assailant and denied knowing Murphy and Schmid.

During a subsequent deposition regarding a custody modification proceeding commenced by defendant in July 2007, defendant provided sworn testimony that Jeker had attacked her in 2005, that she had not met Murphy through Hyde and that she had never met with Schmid at the restaurant in the fall of 2005. Based upon this allegedly false testimony, defendant was indicted on three counts of perjury in the first degree. She successfully moved to dismiss the perjury count related to the statements regarding Jeker's conduct ¹ and later moved to dismiss the remaining counts of the indictment, claiming that the prosecution of these charges was in violation of the terms of her prior plea agreement. County Court denied the motion after a hearing, finding no merit to defendant's contention that the terms of the plea agreement permitted her to commit perjury in future custody proceedings.

Following a jury trial, defendant was found guilty on the remaining counts of perjury in the first degree. At sentencing, County Court denied the People's request to sentence her as a second felony offender,concluding that she was not made aware during the May 2007 plea allocution that the plea did not satisfy future false statements related to the 2005 assault. The court thereafter sentenced defendant to concurrent five-year terms of probation, and these cross appeals ensued.

Defendant contends that the statements claimed to be false were not material to the issues before Family Court and, therefore, cannot support her conviction on each count of perjury in the first degree. We disagree. A person is guilty of perjury in the first degree when he or she gives false sworn testimony that is “material to the action, proceeding or matter in which it is made” (Penal Law § 210.15). “To be material, the statement need not prove directly the fact in issue; it is sufficient if it is circumstantially material or tends to support and give credit to the witness in respect to the main fact” ( People v. Davis, 53 N.Y.2d 164, 170–171, 440 N.Y.S.2d 864, 423 N.E.2d 341 [1981] [internal quotation marks and citation omitted] ). Thus, a statement is material if it “ ‘reflect[s] on the matter under consideration,’ even if only as to the witness' credibility” ( id. at 171, 440 N.Y.S.2d 864, 423 N.E.2d 341, quoting People v. Stanard, 42 N.Y.2d 74, 80, 396 N.Y.S.2d 825, 365 N.E.2d 857 [1977],cert. denied434 U.S. 986, 98 S.Ct. 615, 54 L.Ed.2d 481 [1977];see People v. Perino, 19 N.Y.3d 85, 89, 945 N.Y.S.2d 602, 968 N.E.2d 956 [2012];People v. Tucker, 95 A.D.3d 1437, 1441, 944 N.Y.S.2d 383 [2012];People v. Evans, 269 A.D.2d 797, 797, 704 N.Y.S.2d 418 [2000],lv. denied95 N.Y.2d 834, 713 N.Y.S.2d 141, 735 N.E.2d 421 [2000];People v. Martin, 134 A.D.2d 767, 768, 521 N.Y.S.2d 807 [1987],lv. denied71 N.Y.2d 899, 527 N.Y.S.2d 1008, 523 N.E.2d 315 [1988] ). Notably, whether the false testimony is material is a question to be resolved by the trier of fact ( see People v. Perino, 19 N.Y.3d at 89, 945 N.Y.S.2d 602, 968 N.E.2d 956;People v. Williams, 51 A.D.3d 1141, 1143, 856 N.Y.S.2d 743 [2008],lv. denied10 N.Y.3d 959, 863 N.Y.S.2d 143, 893 N.E.2d 449 [2008] ).

Here, the People established that the perjured testimony at issue—that is, defendant's denials that she had met with Murphy and Schmid prior to the claimed assault—were material to the Family Court proceeding in which they were given. Jeker's counsel testified that he specifically asked defendant the questions in order to memorialize her responses so that he could later test her credibility at the hearing on the custody modification petition. As the false testimony bore directly on defendant's credibility, both generally and specifically regarding her claim that she had been assaulted by Jeker, it was material to Family Court's inquiry—which focused on whether a modification of custody would be in the best interests of the child ( see People v. Davis, 53 N.Y.2d at 171, 440 N.Y.S.2d 864, 423 N.E.2d 341;People v. Thomas, 162 A.D.2d 822, 823, 558 N.Y.S.2d 641 [1990] ). Accordingly, we find defendant's convictions for perjury in the first degree to be supported by legally sufficient evidence.

Nor are the convictions against the weight of the evidence. The fact that Murphy and Schmid have criminal histories and were testifying pursuant to cooperation agreements with the People did not render their testimony unworthy of belief ( see People v. Thompson, 75 A.D.3d 760, 763, 904 N.Y.S.2d 797 [2010],lvs. denied15 N.Y.3d 893, 894, 896, 912 N.Y.S.2d 581, 582, 584, 938 N.E.2d 1016, 1017, 1019 [2010];People v. Vargas, 60 A.D.3d 1236, 1238, 875 N.Y.S.2d 625 [2009],lv. denied13 N.Y.3d 750, 886 N.Y.S.2d 104, 914 N.E.2d 1022 [2009] ). Further, the minor inconsistencies between the testimony of the People's witnesses regarding the assaultscheme were fully developed at trial and presented a credibility issue for the jury to resolve ( see People v. Davis, 83 A.D.3d 1210, 1211, 921 N.Y.S.2d 400 [2011],lv. denied17 N.Y.3d 794, 929 N.Y.S.2d 102, 952 N.E.2d 1097 [2011];People v. Stearns, 72 A.D.3d 1214, 1216, 898 N.Y.S.2d 348 [2010],lv. denied15 N.Y.3d 778, 907 N.Y.S.2d 467, 933 N.E.2d 1060 [2010] ). Evaluating the evidence in a neutral light and according due deference to the jury's credibility assessments ( see People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987];People v. Vargas, 60 A.D.3d at 1239, 875 N.Y.S.2d 625), we are satisfied that the verdict is supported by the weight of the evidence. Defendant's additional claim that the indictment is the product of a perjury trap sprung upon her by the People is similarly without merit ( compare People v. Tyler, 46 N.Y.2d 251, 257–259, 413 N.Y.S.2d 295, 385 N.E.2d 1224 [1978] ).

Turning to the People's cross appeal, we agree that County Court erred in refusing to sentence defendant as a second felony offender. A defendant may be sentenced as a second felony offenderif the prosecution demonstrates beyond a reasonable doubt that the defendant was previously convicted of a felony ( seeCPL 400.21[1], [7] ). “ ‘Once the fact of the prior conviction has been established, it is then incumbent upon the defendant to allege and prove the facts underlying the claim that the conviction...