People v. Alfaro

108 A.D.2d 517, 489 N.Y.S.2d 546, 1985 N.Y. App. Div. LEXIS 47915

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 20, 1985
• Status: Published

Opinions

OPINION OF THE COURT

Titone, J.

Defendant appeals from a judgment of the Supreme Court, Queens County (121 Misc 2d 804), which convicted him, following a nonjury trial, of insurance fraud in the third degree (Penal Law § 176.10) and imposed a $1,000 fine. The facts, as detailed in the dissenting opinion, are plainly sufficient to support the verdict (People v Malizia, 62 NY2d 755, 757, cert denied_US 105 S Ct 327; People v Klein, 105 AD2d 805, affd 65 NY2d 613 for reasons stated in memorandum at App Div), and the only issue which divides us is whether an acquittal on a separate count of attempted petit larceny renders the verdict “repugnant”, warranting dismissal of all charges. The majority concludes that the defendant is not entitled to such a windfall and therefore affirms the judgment of conviction.

Preliminarily, we question whether the issue is properly before us as a purported error of law. Generally, a defendant is precluded from raising a claim of repugnancy on appeal absent appropriate protest in the trial court (People v Satloff, 56 NY2d 745; People v Stahl, 53 NY2d 1048; People v Howard, 107 AD2d 712; People v Holmes, 104 AD2d 1049).

The dissenters are of the view that no protest could be registered to the Trial Judge’s action (cf. People v Pastore, 46 AD2d 870) so that no preservation is necessary. It would seem, however, that defendant could have made a motion to set aside the verdict pursuant to CPL 330.30 (cf. People v Salemmo, 38 NY2d 357; but see, People v Pastore, supra).

* The real reason for the failure to protest is more basic — the defendant simply did not wish to run the risk that the acquittal would be reconsidered (cf. People v Salemmo, supra; but see, People v Pastore, supra). Nevertheless, in light of the sharp division in this court and the language contained in People v Pastore (supra), we shall address the merits.

In People v Pugh (36 AD2d 845, affd 29 NY2d 909, cert denied 406 US 921), we squarely and unequivocally held that inconsistency of a verdict rendered by a judge after a bench trial would not lead to reversal so long as the inconsistency related to separate counts of the accusatory instrument, precisely the case here (see also, People v Williams, 47 AD2d 262, 266 [Christ, J.]). The rule is almost universally followed (see, United States v West, 549 F2d 545, cert denied 430 US 956; Haynesworth v United States, 473 A2d 366 [DC App]; People v O’Malley, 108 Ill App 3d 823, 439 NE2d 998; Commonwealth v Harris, 239 Pa Super Ct 603, 360 A2d 728, affd 488 Pa 141, 411 A2d 494; Ann., 18 ALR3d 259, 286). In fact, a panel of the appellate court of Illinois found People v Pugh (supra) to be persuasive in reaching an identical result (People v O’Malley, supra).

It is true that, at one time, the United States Court of Appeals for the Second Circuit mandated consistency in such circumstances (United States v Maybury, 274 F2d 899). That rule, however, was adopted over the disagreement of Judge Learned Hand who protested that exculpating a defendant was an inappropriate method for preventing “errors in judicial dialectic” (supra, at p 908 [Hand, J., dissenting in part and concurring in part]) and was expressly rejected by this court in People v Pugh (36 AD2d 845, supra). Moreover, even the Second Circuit read United States v Maybury (supra) narrowly, upholding numerous convictions alleged to be inconsistent (see, e.g., United States v King, 373 F2d 813; United States v Wilson, 342 F2d 43, 45; United States v Tankel, 331 F2d 204; United States v Sells, 325 F2d 161, 162; United States v Robinson, 320 F2d 880, 881). The one decision since United States v Maybury (supra) in which the Second Circuit set aside a conviction due to inconsistent verdicts by a trial judge — ironically, a habeas corpus proceeding involving a New York criminal conviction — was summarily reversed by the Supreme Court (Rivera v Harris, 643 F2d 86, revd 454 US 339).

Nor are the verdicts impermissibly repugnant in the accepted sense. Such a repugnancy exists where the crimes contain identical elements (see, People v Tucker, 55 NY2d 1, 6; People v Belvin, 47 AD2d 929; People v Williams, 47 AD2d 262, 266-267, supra). “The critical concern is that an individual not be convicted for a crime on which the [trier of fact] has actually found that the defendant did not commit an essential element” (People v Tucker, 55 NY2d 1, 6, supra).

In creating the crime of insurance fraud, the Legislature and the Governor obviously did not believe that it and the crime of larceny contained identical elements (see, Insurance Law § 38; Governor’s approval memorandum, 1981 McKinney’s Session Laws of NY, at 2617-2618) and the statutory language itself shows this to be so. Larceny requires a finding of an “intent to deprive another of property or to appropriate the same” and a wrongful taking, obtaining or withholding of property from its owner (Penal Law § 155.05 [1]). On the other hand, insurance fraud requires a finding that the defendant “knowingly and with intent to defraud presents * * * any written statement as part of, or in support of, an application for the issuance of * * * a claim for payment or other benefit pursuant to an insurance policy” (Penal Law § 176.05).

Thus, it is clear that the elements of the two are completely different and that an acquittal of a larceny charge does not negate an essential element of insurance fraud. While larceny provisions address the wrongful taking of property with the intent to deprive someone of that property, the essence of insurance fraud is the filing of a false written statement as part of a claim for insurance. Consequently, the trier of fact may have concluded that the defendant intended to defraud the insurance company but did not intend to steal property (see, People v Pisano, 105 AD2d 1156). Though perhaps illogical, the verdicts may stand (see, United States v Powell, 469 US_, 83 Led 2d 461; People v Goodfriend, 64 NY2d 695; People v Pisano, supra; People v Gross, 51 AD2d 191, 198; People v Pugh, 36 AD2d 845, supra).

There is an additional explanation for the verdict: perhaps the Trial Judge may have decided that pyramiding of charges was inappropriate and acted out of a sense of mercy. Such a rough sense of justice is legally improper, but it cannot, of course, be challenged by the People through the appellate process. Like Judge Hand, we do not think that two wrongs equal a right to exculpation on all counts in order to prevent “errors in judicial dialectic” (United States v Maybury, 274 F2d 899, 908, supra [Hand, J., dissenting in part and concurring in part]; see, People v Pastore, 46 AD2d 870, 871, supra [Steuer, J., dissenting]). As the Supreme Court put it in Harris v Rivera (454 US 339, 348, supra), the “Constitution does not prohibit state judges from being excessively lenient”.

There is no merit to any of the other arguments. The judgment should be affirmed.

In People v Salemmo (38 NY2d 357), the Court of Appeals held that the resubmission of a defective verdict to the jury was not violative of the double jeopardy clause or statutory rights even though the effect was to change a not guilty verdict to a guilty verdict on the resubmitted counts. The same result should obtain in nonjury trials (cf. People v Carter, 63 NY2d 530, 538-539; People ex rel. Imbruglia v Jackson, 8 AD2d 651, affd 9 NY2d 767; People v Lemmons, 270 App Div 828; People v Paulides, 88 Misc 2d 1061).