Opinion
1060 KA 17–01343
11-15-2019
The PEOPLE of the State of New York, Respondent, v. Laura A. HURLBURT, Defendant–Appellant.
LEANNE LAPP, PUBLIC DEFENDER, CANANDAIGUA (MARK C. DAVISON OF COUNSEL), FOR DEFENDANT–APPELLANT. JAMES B. RITTS, DISTRICT ATTORNEY, CANANDAIGUA (MELANIE J. BAILEY OF COUNSEL), FOR RESPONDENT.
LEANNE LAPP, PUBLIC DEFENDER, CANANDAIGUA (MARK C. DAVISON OF COUNSEL), FOR DEFENDANT–APPELLANT.
JAMES B. RITTS, DISTRICT ATTORNEY, CANANDAIGUA (MELANIE J. BAILEY OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., PERADOTTO, DEJOSEPH, NEMOYER, AND WINSLOW, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously modified on the facts by reversing that part convicting defendant of welfare fraud in the third degree and dismissing count eight of the indictment, and as modified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting her, upon a jury verdict, of six counts of offering a false instrument for filing in the first degree ( Penal Law § 175.35[1] ), one count of grand larceny in the third degree (§ 155.35[1] ), and one count of welfare fraud in the third degree (§ 158.15). Viewing the evidence in the light most favorable to the People (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), we conclude that the evidence is legally sufficient to support the conviction on the counts of offering a false instrument for filing in the first degree and grand larceny in the third degree (see People v. Hure, 16 A.D.3d 774, 775–776, 790 N.Y.S.2d 591 [3d Dept. 2005], lv denied 4 N.Y.3d 854, 797 N.Y.S.2d 428, 830 N.E.2d 327 [2005] ; see generally Danielson, 9 N.Y.3d at 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). Viewing the evidence in light of the elements of the crimes as charged to the jury (see Danielson, 9 N.Y.3d at 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we conclude that the verdict with respect to those counts is not against the weight of the evidence (see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). As the parties correctly recognize, however, the crimes of welfare fraud under Penal Law article 158 do not apply to the Section 8 housing benefits at issue in this case (see People v. Davis, 155 AD3d 1527, 1528–1530, 78 N.Y.S.3d 282, 102 N.E.3d 1063 [4th Dept. 2017], lv denied 31 N.Y.3d 1012, 78 N.Y.S.3d 282, 102 N.E.3d 1063, [2018] ; see generally § 158.00[1][c] ). The jury's verdict with respect to the crime of welfare fraud in the third degree is thus against the weight of the evidence (see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ), and we therefore modify the judgment accordingly (see CPL 470.20[5] ).