Opinion
03-30-2017
The PEOPLE of the State of New York, Respondent, v. Robert CASSANDRO, Defendant–Appellant.
Langone & Associates, PLLC, Garden City (Richard M. Langone and Peter J. Tomao of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Susan Axelrod of counsel), for respondent.
Langone & Associates, PLLC, Garden City (Richard M. Langone and Peter J. Tomao of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Susan Axelrod of counsel), for respondent.
Judgment, Supreme Court, New York County (Gregory Carro, J.), rendered July 29, 2014, convicting defendant, after a jury trial, of scheme to defraud in the first degree, and sentencing him to a term of 1 ? to 4 years, and restitution in the amount of $5,870,168, unanimously affirmed.Defendant's arguments concerning the jury charge on first-degree grand larceny are moot, since he was acquitted of that charge (see People v. Moore, 35 A.D.3d 291, 826 N.Y.S.2d 68 [1st Dept.2006], lv. denied 8 N.Y.3d 988, 838 N.Y.S.2d 491, 869 N.E.2d 667 [2007] ). Defendant's assertion that the alleged deficiency in the larceny charge may have affected the scheme to defraud conviction is unavailing. His arguments concerning the jury charge on scheme to defraud are unpreserved, and we decline to review them in the interest of justice. As an alternative holding, we find that the court was not required to give the "moral certainty" charge set forth in Penal Law § 155.05(2)(d), because scheme to defraud has no such special burden of proof (see People v. Burks, 195 A.D.2d 1014, 600 N.Y.S.2d 578 [4th Dept.1993], lv. denied 82 N.Y.2d 804, 604 N.Y.S.2d 940, 624 N.E.2d 1035 [1993] ).
Defendant's arguments concerning the prosecutor's cross-examination and summation are unpreserved (see People v. Heide, 84 N.Y.2d 943, 944, 620 N.Y.S.2d 814, 644 N.E.2d 1370 [1994] ), and we decline to review them in the interest of justice. As an alternative holding, we find no basis for reversal (see People v. Overlee, 236 A.D.2d 133, 666 N.Y.S.2d 572 [1st Dept.1997], lv. denied 91 N.Y.2d 976, 672 N.Y.S.2d 855, 695 N.E.2d 724 [1998] ; People v. D'Alessandro, 184 A.D.2d 114, 591 N.Y.S.2d 1001 [1st Dept.1992], lv. denied 81 N.Y.2d 884, 597 N.Y.S.2d 945, 613 N.E.2d 977 [1993] ). Moreover, any error was harmless in light of the overwhelming evidence of defendant's guilt (see People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787 [1975] ).
Defendant's challenges to the court's restitution order as to five of the victims are also unpreserved (see People v. Horne, 97 N.Y.2d 404, 414 n. 3, 740 N.Y.S.2d 675, 767 N.E.2d 132 [2002] ), and we decline to review them in the interest of justice. As an alternative holding, we perceive no basis for reducing the amount of restitution.
TOM, J.P., MOSKOWITZ, FEINMAN, GISCHE, KAPNICK, JJ., concur.