People v. Reeves , 1 N.Y.S.3d 547 ( 2015 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: January 22, 2015 104407
________________________________
THE PEOPLE OF THE STATE OF
NEW YORK,
Respondent,
v MEMORANDUM AND ORDER
ROSE REEVES,
Appellant.
________________________________
Calendar Date: November 18, 2014
Before: Lahtinen, J.P., McCarthy, Rose, Egan Jr. and Clark, JJ.
__________
Michael P. Graven, Owego, for appellant, and appellant
pro se.
Weeden A. Wetmore, District Attorney, Elmira, for
respondent.
__________
Clark, J.
Appeal from a judgment of the County Court of Schuyler
County (Argetsinger, J.), rendered January 13, 2011, upon a
verdict convicting defendant of the crimes of grand larceny in
the second degree and forgery in the second degree (three
counts).
After defendant stole hundreds of thousands of dollars from
the victim, her elderly sister-in-law, she was charged with grand
larceny in the second degree. Defendant was also charged with
three counts of forgery in the second degree as the result of
endorsing a check payable to the victim, as well as two documents
purportedly signed by the victim that enabled defendant to access
and transfer funds held in a certificate of deposit. Following a
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jury trial, defendant was convicted as charged. County Court
sentenced her to, among other things, five years of probation
that included six months of electronic home monitoring. County
Court further directed her to pay restitution in the amount of
$361,169. Defendant appeals, and we now affirm.
Initially, defendant failed to renew her motion to dismiss
the charges at the close of her proof and, as such, her
contention that the verdict is not supported by legally
sufficient evidence is unpreserved for our review (see People v
Kolupa, 13 NY3d 786, 787 [2009]; People v Valverde, 122 AD3d
1074, 1075 [2014]). We will nevertheless determine whether all
the elements of the charged crimes were proven beyond a
reasonable doubt in weighing the probative force of conflicting
testimony and the strength of conflicting inferences to assess
whether the verdict is against the weight of the evidence
(see People v Danielson, 9 NY3d 342, 348-349 [2007]; People v
Valverde, 122 AD3d at 1075).
In that regard, defendant assisted the victim as she
declined physically in the several years prior to her death and,
as such, was named as a joint owner of the victim's checking
account and was granted a limited power of attorney that did not
include any authority over banking transactions. Joseph Fazzary
is an attorney and was very familiar with both defendant and the
victim, not only because he was their nephew, but also because he
had employed defendant for several years and had assisted the
victim with her financial affairs.1 Fazzary was named as
executor of the victim's estate and, upon her death in 2008,
began collecting information about her assets. In so doing, he
uncovered documentary evidence that defendant had siphoned off
hundreds of thousands of dollars from the victim by various
means, including misrepresenting the scope of her power of
attorney to access certain funds and forging the victim's
signature on documents designed to make her a joint owner of
others (cf. People v Vandermuelen, 42 AD3d 667, 668-669 [2007],
1
Fazzary is also the Schuyler County District Attorney
and, accordingly, a special prosecutor was appointed to handle
the present case (see County Law § 701).
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lv denied 9 NY3d 965 [2007]). Fazzary and others testified that
this activity was totally inconsistent with the prior behavior of
the victim, who was known to be extremely frugal. Defendant
further spent substantial sums of money, with no obvious source,
at a casino during the period in question. Witnesses testified
that the victim did not approve of gambling, and that she would
not have given defendant any funds for that purpose.
With regard to the forgery charges, Fazzary was familiar
with the handwriting of both defendant and the victim, and he
testified that defendant had forged the victim's signature upon
two documents used to make defendant a joint owner of a
certificate of deposit owned by the victim (see People v Clark,
122 AD2d 389, 390 [1986], lv denied 68 NY2d 913 [1986]). Fazzary
also testified that defendant had forged the victim's endorsement
on a check from the proceeds of another certificate of deposit
that had been closed out. Defendant testified that the victim
gifted her large sums of money and that her casino winnings had
bankrolled her gambling, and otherwise denied having acted
improperly, but the jury plainly chose to credit the extensive
evidence of defendant's financial wrongdoing over her conflicting
testimony. Thus, deferring to the credibility determination of
the jury, we cannot say that the verdict was against the weight
of the evidence (see People v Antilla, 77 NY2d 853, 854-855
[1991]; People v Rampersaud, 52 AD3d 336, 337 [2008], lv
denied 11 NY3d 740 [2008]).
Defendant's remaining arguments are similarly unavailing
and require only a brief mention. County Court properly admitted
bank records regarding various accounts held by the victim
because the testimony of bank employees "was sufficient to
qualify such documents as business records within the meaning of
CPLR 4518, and [the witnesses'] lack of personal knowledge went
to the weight, not the admissibility of the" records (William
Conover, Inc. v Waldorf, 251 AD2d 727, 728 [1998] [internal
citations omitted]; see CPLR 4518 [a]; People v Kennedy, 68 NY2d
569, 579-580 [1986]). County Court further acted appropriately
in allowing the jury to consider evidence of uncharged forged
checks that was "offered to prove defendant's intent to commit
the specific crimes charged" (People v Bayne, 82 NY2d 673, 676
[1993]; see People v Scotti, 232 AD2d 775, 776 [1996], lv
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denied 89 NY2d 946 [1997]). Defendant's remaining contentions
have been considered and found to lack merit.
Lahtinen, J.P., McCarthy, Rose and Egan Jr., JJ., concur.
ORDERED that the judgment is affirmed.
ENTER:
Robert D. Mayberger
Clerk of the Court