Opinion
2018–03249 Ind.No. 911/16
08-21-2019
The PEOPLE, etc., Respondent, v. Nancy ENOKSEN, Appellant.
Patrick Michael Megaro, Forest Hills, NY, for appellant. Madeline Singas, District Attorney, Mineola, N.Y. (Daniel Bresnahan and Hilda Mortensen of counsel), for respondent.
Patrick Michael Megaro, Forest Hills, NY, for appellant.
Madeline Singas, District Attorney, Mineola, N.Y. (Daniel Bresnahan and Hilda Mortensen of counsel), for respondent.
ALAN D. SCHEINKMAN, P.J., JEFFREY A. COHEN, ROBERT J. MILLER, JOSEPH J. MALTESE, JJ.
DECISION & ORDER ORDERED that the judgment is affirmed.
The defendant, an attorney, was convicted, after a jury trial, of grand larceny in the second degree. The testimony and evidence presented by the People established the following facts. The defendant represented the complainant, Lisa Marie Elfante, in a divorce proceeding from 2008 until 2013. In August 2013, the complainant signed a retainer agreement and endorsed a check in the amount of $415,720.91, representing the settlement proceeds in connection with a personal injury action, which was deposited by the defendant into an escrow account entitled "Lisa Marie Elfante, Law Office of Nancy Enoksen, 366 North Broadway, Suite 204, Jericho, New York 11753." According to the complainant, the funds were placed in the escrow account, on the defendant's advice, to avoid judgment creditors. Over a period of approximately 10 months, the defendant withdrew a total of $187,040.34 from the escrow account for her personal use.
We agree with the Supreme Court's denial of the defendant's motion, in effect, pursuant to CPL 255.20(3) to dismiss the indictment based on the failure of the prosecutor to instruct the grand jury on the defense of claim of right. Viewing the evidence before the grand jury in the light most favorable to the defendant (see People v. Padgett , 60 N.Y.2d 142, 144–145, 468 N.Y.S.2d 854, 456 N.E.2d 795 ; People v. Tunit , 149 A.D.3d 1110, 1111, 53 N.Y.S.3d 649 ), there was no reasonable view of the evidence warranting an instruction on that defense (see People v. Chang , 12 Misc.3d 134(A), 2006 N.Y. Slip Op. 51190(U), 2006 WL 1750963 [App. Term, 2d Dept., 9th & 10th Jud. Dists.] ; see also People v. Green , 5 N.Y.3d 538, 543, 807 N.Y.S.2d 321, 841 N.E.2d 289 ; People v. Reid , 69 N.Y.2d 469, 476–477, 515 N.Y.S.2d 750, 508 N.E.2d 661 ).
In addition, viewing the evidence presented at trial in the light most favorable to the prosecution (see People v. Contes , 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, upon our independent review pursuant to CPL 470.15(5), we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero , 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902 ).
We agree with the Supreme Court's determination to permit the People to introduce into evidence a document created by the complainant reflecting a series of text messages between the complainant and the defendant. The complainant's testimony that the text messages were accurately and fairly reproduced was sufficient to authenticate the document (see People v. Cotto , 164 A.D.3d 826, 79 N.Y.S.3d 535 ; People v. Javier , 154 A.D.3d 445, 62 N.Y.S.3d 324 ; People v. Green , 107 A.D.3d 915, 916–917, 967 N.Y.S.2d 753 ; People v. Agudelo , 96 A.D.3d 611, 612, 947 N.Y.S.2d 96 ). Furthermore, the court acted within its discretion in permitting the People to call an expert witness to testify about the purpose of an escrow account and how it differs from other types of accounts, which, here, was helpful in clarifying issues beyond the ken of the typical juror (see People v. Williams , 20 N.Y.3d 579, 583–584, 964 N.Y.S.2d 483, 987 N.E.2d 260 ; People v. Dallas , 47 A.D.3d 725, 726, 849 N.Y.S.2d 298 ). Likewise, the testimony of the People's witness who summarized voluminous records related to the escrow account was properly admitted (see People v. Ramsundar , 138 A.D.3d 891, 892, 28 N.Y.S.3d 340 ; People v. Haque , 70 A.D.3d 967, 968, 897 N.Y.S.2d 130 ). Moreover, the court providently exercised its discretion in precluding the defendant from cross-examining the complainant regarding her alleged mental health treatment. The defendant made no showing that the complainant suffered from any condition relevant to her ability to perceive and recall the events related to the crime committed against her (see People v. Anaka , 154 A.D.3d 870, 63 N.Y.S.3d 74 ).
Contrary to the defendant's contention, the Supreme Court's charge to the jury, viewed in its entirety, adequately explained the concepts of reasonable doubt and the People's burden of proof, and made it clear that the defendant bore no burden of proof (see People v. Canty , 60 N.Y.2d 830, 831–832, 469 N.Y.S.2d 693, 457 N.E.2d 800 ; People v. Jones , 173 A.D.2d 487, 570 N.Y.S.2d 297 ).
The sentence imposed was not excessive (see People v. Suitte , 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
The defendant's remaining contentions are without merit.
SCHEINKMAN, P.J., COHEN, MILLER and MALTESE, JJ., concur.