Opinion
June 5, 2001.
Judgment, Supreme Court, New York County (Bernard Fried, J.), rendered July 1, 1999, convicting defendant, after a jury trial, of commercial bribing in the first degree (two counts), scheme to defraud in the first degree and commercial bribing in the second degree, and sentencing him to three concurrent terms of 5 years probation and a concurrent term of 3 years probation, and imposing an aggregate fine of $16,000 and restitution in the amount of $18,268, unanimously affirmed.
Michael S. Morgan, for respondent.
Mark M. Baker, for defendant-appellant.
Before: Sullivan, P.J., Williams, Mazzarelli, Wallach, JJ.
The verdict was based on legally sufficient evidence. As the trial court determined in denying the dismissal motions made by defendant and his codefendants (People v. Reynolds, 174 Misc.2d 812), defendant's conduct satisfies the elements of commercial bribing in the first and second degrees and scheme to defraud in the first degree. At the outset, we find no support in the record for defendant's assertion that the People are advancing a new theory of liability on appeal.
Defendant was involved in an ongoing conspiracy whereby attorneys such as defendant, acting through middlemen or "pointers," would bribe adjusters of insurance companies to expedite personal injury settlements. Although the payments came out of defendant's fees, and although the People did not allege that the actual settlements were inflated beyond that which would be reasonable compensation for the genuinely injured claimants, defendant's guilt of commercial bribing in the first degree was established in that the "economic harm" to the insurers consisted of the amount illegally paid to the adjusters. That is, by accepting a specified settlement and then turning over a percentage of that settlement to the adjuster, defendant clearly evinced a willingness to settle the claim, at that point in time, for the amount of the settlement minus the amount of the bribe paid to the adjuster.
Thus, a jury could find that each settlement was necessarily inflated by the amount of the bribe (see, Donemar, Inc. v. Molloy, 252 N.Y. 360;City of New York v. Liberman, 232 A.D.2d 42, lv dismissed 91 N.Y.2d 1003;see also, United States v. Fagan, 821 F.2d 1002 [5th Cir 1987], cert denied 484 U.S. 1005; United States v. George, 477 F.2d 508 [7th Cir 1973], cert denied sub nom. Greenspan v. United States, 414 U.S. 827). The $5000 payment in City of New York v. Liberman, supra is distinguishable. That payment, unlike the bribes here, was extorted by Liberman after the terms of the lease were already negotiated and agreed upon and without the possibility of affecting the price of the lease. Here, the negotiations of the price of the settlements necessarily took into consideration the amount to be paid to the adjusters, and thus loaded the settlements by that amount.
With regard to defendant's conviction of scheme to defraud in the first degree, it was not necessary that the People prove that defendant himself made any "false or fraudulent pretenses, representations or promises" to the insurers. We agree with the court's conclusion (People v. Reynolds, 174 Misc.2d 812, 826-829, supra) that the applicable statute (Penal Law § 190.65[b]) is written in the disjunctive, so that it was sufficient for the People to establish that defendant "engage[d] in a scheme constituting a systematic ongoing course of conduct with intent to defraud more than one person . . . and so obtain[ed] property with a value in excess of one thousand dollars from one or more such persons." (see also, People v. Brigham, 261 A.D.2d 43, 50, appeal withdrawn, 94 N.Y.2d 901). Furthermore, the evidence warranted the inference that defendant had knowledge of the payments being made to the adjusters through the middlemen or "pointers" he utilized (see, People v. Mattiace, 77 N.Y.2d 269, 273-274).
The court's striking of the hearsay statements of one of defendant's coconspirators did not render the People's case legally insufficient. The court properly exercised its discretion in denying defendant's mistrial motion made after these statements were stricken, because the testimony was not prejudicial. The less drastic remedy of an instruction to the jury to disregard the testimony would have sufficed but defendant declined that remedy (see, People v. Young, 48 N.Y.2d 995, 996). The statements and related documents of another coconspirator were properly admitted because a prima facie case of the conspiracy involving defendant and this coconspirator was established without recourse to the declarations sought to be introduced (see, People v. Tran, 80 N.Y.2d 170, 179; People v. Comfort, 151 A.D.2d 1019, lv denied 74 N.Y.2d 807).
The court properly denied defendant's motion to set aside the verdict based on an alleged Rosario violation discovered after the verdict but before sentencing. The subject Grand Jury minutes did not constituteRosario material in that they did not relate to the subject matter of the witness's testimony at defendant's trial as that testimony related to the charges against defendant (People v. Harrell, 251 A.D.2d 240, lv denied 92 N.Y.2d 925). In any event, were we to assume that there was a Rosario violation, we would conclude that defendant was required to establish prejudice, and that he has not done so.
A showing of prejudice is required because this case is governed by CPL 240.75, effective February 1, 2001, which eliminates what remains of the "per se" rule of reversal for Rosario violations. Contrary to defendant's argument, we see no reason to depart from the principle that "cases on direct appeal are generally decided in accordance with the law as it exists at the time the appellate decision is made." (People v. Vasquez, 88 N.Y.2d 561, 573), and we ascribe no significance to the fact that defendant perfected and calendared this appeal for the October 2000 Term.
Moreover, a showing of prejudice would have been required regardless of the new enactment. Since the alleged error was not one "appearing in the record," defendant's motion was improperly brought pursuant to CPL 330.30(1), and was, at best, a de facto CPL 440.10 motion (see, People v. Kronberg, 243 A.D.2d 132, 135, 152, lv denied 92 N.Y.2d 880; People v. Herrington, 194 A.D.2d 379, lv denied 82 N.Y.2d 755). Accordingly, it would be necessary for defendant to demonstrate prejudice (see, People v. Machado, 90 N.Y.2d 187, 192).
We have considered and rejected defendant's remaining claims.