Defendant Faith Dove was indicted and tried before this Court for the crimes of Grand Larceny in the Third Degree, Criminal Possession of Stolen Property in the Third Degree, and Falsifying Business Records in the First Degree. The jury found defendant not guilty of the Larceny charge, but guilty of the Stolen Property and Business Records charges. The defendant is awaiting sentence and has made post-trial motions to set aside the verdict.

In briefest form, the trial evidence showed that defendant Dove, an insurance agent for New York Life, accepted nine thousand dollars in cash from the victim along with the victim's application for a policy, but that defendant then belatedly transmitted only six hundred and eighty dollars to the insurance company (while keeping the rest). The evidence further demonstrated that Ms. Dove falsified a number of documents in an effort to cover up what she had done.

The trial and post-trial motions raise two interesting legal issues. The first is whether the jury's mixed verdict was inconsistent or repugnant. Pursuant to the legal test for inconsistency set out in People v. Tucker, 55 NY2d 1 (1981), and for the reasons detailed below, the Court finds that the jury's verdict was not repugnant.

The second issue concerns a letter dated February 2, 2002. The letter purported to be an acknowledgment by the victim that he never gave any money to the defendant in the first place - - which, if true, would mean that no crime was ever committed. However, the proof at trial was that defendant either forged or otherwise fabricated this letter and then forwarded it to a New York Life compliance officer in December of 2003 in response to New York Life's investigation of the matter. The legal issue presented is whether such a fabricated customer's letter constitutes a "business record" for the purposes of Penal Law Section 175.10, which defines the crime of Falsifying Business Records in the First Degree. For the reasons detailed below, the Court finds that the fabricated February 2 letter does fall within the scope of the Falsifying Business Records statute.

Defendant Faith Dove was an agent for the New York Life Insurance Company ("New York Life") for many years. The complainant Kirkland Bennett worked chiefly as a porter for a construction and maintenance firm. He also performed as a singer and reggae musician from time to time. Mr. Bennett's cousin Jackie Skeen worked at New York Life for several years, and while there she became very friendly with her colleague Ms. Dove. Mr. Bennett (who, like Ms. Skeen, had come to New York from Jamaica) told his cousin Jackie that he admired her because she was getting ahead in the world; and Mr. Bennett's cousin in turn recommended to Bennett that he talk to Ms. Dove about investment and financial matters.

On or about January 30, 2002, Bennett met in person with the defendant Dove at defendant's home. He brought nine thousand dollars in cash with him. (Bennett explained that he did not maintain any bank account, in part because he was concerned that his funds might be seized for child support payments.) Mr. Bennett (who was very unfamiliar with financial and business matters) told defendant Dove that he wanted to find an investment where his money could safely grow and ultimately go to his daughter. Defendant Dove prepared an application for a New York Life variable life insurance policy for Bennett, and Bennett signed it. Bennett gave defendant Dove the nine thousand dollars in cash, and defendant in return gave Bennett a signed receipt for that amount.

However, defendant Dove did not remit the money to New York Life, and she did not promptly turn in Mr. Bennett's application either. Instead, defendant Dove simply kept Mr. Bennett's money.

In a rather transparent effort to cover up her crime, however, on or about March 22, 2002 - - that is, nearly two months later - - defendant Dove did belatedly remit to New York Life approximately six hundred and eighty dollars on Mr. Bennett's behalf, along with Mr. Bennett's application. The application appeared to have been altered to reflect a date of March 22 (rather than January 30). New York Life's files contain a series of standardized and seemingly innocuous subsequent documents reflecting the issuance of a policy by New York Life (based upon an initial payment of $680) and Mr. Bennett's receipt of that policy in the spring of 2002.

At trial, Mr. Bennett insisted that he did not see nor sign any of these subsequent documents (all of which were introduced as trial exhibits by the defense) at the time they were created in the spring of 2002; and Bennett further testified that he believed his signatures on these documents must have been forged or otherwise fabricated by defendant Dove.

In the summer of 2002, Mr Bennett received one or more notices from New York Life stating that his policy was to lapse for non-payment. This puzzled Mr. Bennett because he believed that he had already paid in full. He contacted defendant Dove and inquired what was going on. Defendant put him off with a series of excuses. Later on, Mr. Bennett enlisted his cousin Ms. Skeen to help him in dealing with defendant. Defendant Dove continued to stall, and to dodge the inquires made by Mr. Bennett and his cousin. According to Mr. Bennett and Ms. Skeen's testimony at trial, in their conversations with the defendant Ms. Dove claimed that the value of Mr. Bennett's investment had declined from the original $9,000 to about $1,600 because of a fall in "the market"; Ms. Dove also vaguely indicated that she expected to soon receive the proceeds of some annuity herself, and that she would then make good on Mr. Bennett's investment.

By the fall of 2003, Mr. Bennett (together with his cousin) grew tired of the defendant [*2][*3]Dove's evasions. They decided to go over the defendant's head and to contact New York Life directly. New York Life conducted an investigation in response to Mr. Bennett's complaint. As part of that investigation, New York Life asked Ms. Dove to provide a written explanation of what had happened and to forward relevant documents. In response to that request, on or about December 15, 2003 Ms. Dove provided New York Life with, among other things, a letter dated February 2, 2002.

The February 2 letter was addressed "To whom it may concern", and it purported to be written and signed by Mr. Bennett. In substance, the February 2 letter (which is the basis for the Falsifying Business Records charge in the Indictment) first states that Mr. Bennett had not met the financial requirements to buy the policy that he had applied for January 30, and then states that Bennett will therefore void the receipt for nine thousand dollars that Ms Dove had given to Mr. Bennett.

Mr. Bennett denied ever writing or signing any such letter. The very same version of the February 2 letter that defendant Dove had provided to New York Life's investigator in December 2003 was placed in evidence before the jury here. The signature on that document has a very odd appearance, with the suggestion of a very faint double image, as if the signature had been traced or copied over.^[FN1]

New York Life ultimately returned Mr. Bennett's nine thousand dollars (with interest). Defendant Dove was charged in a three count Indictment with Grand Larceny in the Third Degree (for stealing Mr. Bennet's nine thousand dollars), Criminal Possession of Stolen Property in the Third Degree (for retaining the same), and Falsifying Business Records in the First Degree (for producing the fabricated February 2 letter, with the intent to defraud and to conceal the commission of Grand Larceny).

At trial, the People presented the testimony of: Mr. Bennett; his cousin Ms. Skeen; two New York Life representatives who collected documents and information as part of New York Life's investigation; and Mr. Bennett's long-time (but now estranged) girlfriend Lecia Gordon. (Ms. Gordon testified that Mr. Bennett did indeed keep his money in their bedroom - - usually in a shoebox - - and that they counted the money together from time to time; Ms. Gordon recalled that shortly before Bennett went to see defendant Dove he had about eight to ten thousand dollars in cash, and that afterwards he did not.)

At the close of the People's evidence, the Court denied defendant's motion to dismiss the charges of Larceny and Possession of Stolen Property. The Court reserved decision on the defendant's motion to dismiss the Business Records charge; and the Court expressed concern that the more appropriate charge here might have been forgery, or the like.

The defense chose not to present any case, and renewed its motion to dismiss. The Court continued to reserve decision on the motion to dismiss the Business Records charge.

At both the outset of the case and prior to summations, the Court suggested that the People should consider dismissing the Possession of Stolen Property charge because, under the [*4][*5]facts of this case, it did not appear to be readily distinguishable from the Larceny charge, and because it therefore might create jury confusion (or lead to an argument that a mixed verdict was repugnant). The People declined.^[FN2]

The jury commenced its deliberations at mid-morning on Friday, February 16. Late that afternoon, the jury first reported its verdict of not guilty on the Larceny charge, but guilty on the Stolen Property and Business Records charges. In view of the mixed nature of the verdict, the Court directed the jurors to return to the jury room without resuming deliberations. The Court then discussed the verdict with the lawyers, noting its apparent logical inconsistency. Defense counsel made a timely request that the case be resubmitted to the jury for further consideration. The People opposed. After considering the matter over a brief recess, the Court (for essentially the same reasons more fully set out below) denied defendant's motion and accepted the jury's verdict.

(A) The Tucker Standard and the Question Presented

The leading case concerning the review of a jury's verdict for inconsistency is People v. Tucker, 55 NY2d 1 (1981). There the Court of Appeals outlined and contrasted two possible approaches to such a review.

Under the first approach, a reviewing court considers the entire record (including the trial evidence), attempts to ascertain the reasoning that actually underlies the jury's verdict, and then determines whether the verdict is consistent.

The second possible approach is far more limited and constrained. Under this approach, the court looks to the trial record only to examine the final instruction given to the jury. The court must ascertain what essential elements were described by the trial court in its charge to the jury; then, if possible, the assertedly inconsistent verdicts will be harmonized on the basis of the jury charge. Tucker, 55 NY2d at 6-7. A verdict is legally inconsistent (or "repugnant")^[FN3] only where "acquittal on one charge as charged to the jury is conclusive as to a necessary element of the other crime, as charged, for which the guilty verdict was recorded." Tucker, 55 NY2d at 7 (citations omitted). [*6][*7]

The Tucker case declares that New York courts must follow this second, far more constrained approach. Accord People v. Loughlin, 76 NY2d 804, 806 (1990): "Whether verdicts are repugnant or inconsistent (the difference is inconsequential) is determined by examining the charge to see the essential elements of each count, as described by the trial court, and determining whether the jury's findings on those elements can be reconciled."

Thus, in reviewing a mixed jury verdict for asserted inconsistency, the court is limited to a review of the elements of the crimes charged as explained to the jury; and it is error for the court to go "beyond the elements of the crimes as charged . . . by making a factual analysis of the evidence." People v. Green, 71 NY2d 1006, 1008 (1998). Moreover, a determination as to whether a verdict is inconsistent is based solely on a review of the trial court's charge, even if that charge was inaccurate. People v. Hampton, 61 NY2d 963, 964 (1984); Green, 71 NY2d at 1008.

There are good policy reasons for adopting this narrow approach to reviewing a jury verdict for inconsistency. A broader approach would in essence invite (or indeed, require) the court "to intrude into the jury's deliberative process by speculating on how the jury perceived and weighed the evidence" - - that is, to indulge in "second-guessing" the jury. Tucker, 55 NY2d at 6-7.

More importantly for present purposes, a jury will sometimes come to a mixed verdict not because the jury has acted irrationally, but simply because the jury has exercised mercy. Tucker teaches us that in such a case - - where the jury has decided to show a degree of lenity to the defendant - - "the court should not then undermine the jury's role and participation by setting aside the verdict." Tucker, 55 NY2d at 7. See also Dunn v. United States, 284 US 390, 393 (1932).

Turning to the present case, defendant's motion to set aside the jury's verdict as inconsistent therefore requires this Court to examine the elements of the crimes charged as explained by the Court in its instructions to the jury. In the context of defendant's motion, this Court is not permitted to review the trial evidence, nor to second-guess the jury's evaluation of that evidence; moreover, the Court should not disturb the jury's verdict if that verdict was the result of the jury's exercise of mercy towards the defendant.

Accordingly, the key legal question now presented is this: Did defendant's acquittal of Grand Larceny necessarily negate any required element of the crimes for which defendant was convicted - - namely, Criminal Possession of Stolen Property and Falsifying Business Records?

In brief, the correct answer is no. As detailed below, the jury's verdict of not guilty of Grand Larceny here did not necessarily negate any element of either the Stolen Property charge or the Business Records charge for which defendant was convicted. That is so because neither of the latter two crimes as charged to the jury required proof that defendant was the person who committed the initial larceny. Rather, the instructions given to the jury permitted the mixed verdict reached here if the jury concluded: a) that somebody else initially stole the victim's money; but b) that defendant Dove later knowingly took possession of that stolen money, and then falsified business records in order to conceal the initial theft.^[FN4]

The first two Counts of the Indictment charged defendant with Larceny and with Possession of Stolen Property, respectively. The jury convicted defendant of the Stolen Property charge, but acquitted defendant on the Larceny charge. The obvious difference in the definitions of these two crimes as explained to the jury was that: a) the larceny charge requires that the defendant herself steal the victim's property; whereas b) the stolen property charge would be made out where someone else initially stole the victim's property, so long as the defendant subsequently took possession of that stolen property with the requisite guilty knowledge and intent.

Given the definitions of these two crimes that were provided to the jury, it was therefore possible as a legal matter for the jury to at the same time: a) acquit the defendant of larceny - - because the jury was not persuaded beyond a reasonable doubt that defendant was the person who initially stole the victim's money; but b) still convict the defendant of possessing stolen property - - because they were persuaded that the defendant later possessed the victim's money with the requisite guilty knowledge and intent.

That is not to say that such an interpretation of the actual trial testimony in this case is a very persuasive one. To the contrary, the victim Mr. Bennett's testimony indicated that it was the defendant who both stole and kept the victim's money; and there was little (if any) evidence to suggest that any one other than the defendant initially stole the victim's money.

Nevertheless, as Tucker makes clear, a review of a jury verdict for inconsistency does not focus on the question whether the jury's reading of the evidence makes good common sense. To the contrary, it would be error in this context for the Court to make a factual analysis of the evidence. Green, 71 NY2d at 1008. Rather, the proper way to review a jury verdict for inconsistency is to maintain a strict and narrow focus solely on the elements of the crimes charged (as explained to the jury in the Court's final instruction). Given that narrow focus, this [*8][*9]Court is not authorized to set aside the jury's mixed verdict in this case as inconsistent - - even though the jury's verdict might seem to embody a very strange way to look at the evidence presented.

Similarly, the jury found that defendant was not guilty of Larceny, but was guilty of Falsifying Business Records. This finding was also legally consistent. Admittedly, the Falsifying Business Records Count in the Indictment specified that defendant falsified business records with the intent to conceal the commission of the crime of Grand Larceny ^[FN5]. However, the Business Records Count as charged to the jury did not require the jury to find that defendant was

the same person who had committed the underlying Grand Larceny.^[FN6] Rather, pursuant to the Court's final charge to the jury, the jury could have convicted defendant for Falsifying Business [*10][*11]Records if it found that: a) somebody else initially stole the victim's money; b) defendant subsequently knowingly received that stolen money; and c) defendant then falsified New York Life's records in order to conceal the entire incident.

Once again, it must be freely conceded that this is not a very compelling interpretation or analysis of the trial testimony. The testimony indicated that it was the defendant who both initially stole the victim's money and later falsified New York Life's records. There was little (if any) evidence to suggest that Ms. Dove falsified New York Life's records in order to cover up a Grand Larceny committed against Mr. Bennett by some other person.

Nevertheless, under Tucker, the Court's role in reviewing a jury verdict for inconsistency is limited to an analysis of the elements of the crimes charged as explained to the jury. The Court

is not permitted to second-guess the jury's reading of the evidence, however odd or idiosyncratic that reading may seem.

In point of fact, however, it is not all that difficult to understand the jury's verdict in this case. The evidence was overwhelming ^[FN7] that defendant Dove was in fact guilty of all three crimes charged. Nevertheless, Ms. Dove was ably presented ^[FN8] to the jury as a hard-working middle-aged mother with absolutely no criminal history - - a woman now accused of having committed an isolated, non-violent crime (for which the victim had already been fully compensated).

Accordingly, the most likely explanation for the jury's seemingly odd mixed verdict was that the jury decided to be merciful to Ms. Dove by acquitting her on the top Count ^[FN9] of the Indictment.[*12][*13]The suspicion that the jury exercised mercy in this case is reinforced by two factors, namely: a) the speed with which the jury returned its verdict - - deliberations lasted for only five hours or so, including lunch and a readback of the testimony; and b) the peculiar appearance of the jury's Verdict Sheet. Specifically, the jury's Verdict Sheet appears to show that the jury foreman initially checked off a guilty verdict for all three counts of the Indictment, but that the check mark for a guilty verdict on the Larceny charge was then erased, and a mark for not guilty substituted in its place.

As the Court of Appeals explained in Tucker, one of the reasons why a court's review of a jury verdict for repugnancy is so narrowly circumscribed is the recognition of the jury's so-called "mercy function". Juries do sometimes reach seemingly inconsistent mixed verdicts not

because they are at all confused by the evidence or the law, but simply because they wish to exercise some degree of mercy towards the defendant. Tucker reminds us that in such a case there is no good reason to disturb either the jury's limited exercise of mercy or its valid findings of guilt.

Ultimately, it does not really matter much whether the jury in this particular case in fact exercised its mercy function, or whether the jury instead adopted a truly strange reading of the evidence at trial. In either event, viewed in the light of the applicable legal standard, the jury's verdict in this case was not inconsistent. The motion to set aside the verdict of guilty as inconsistent is therefore denied.

The Court has previously reserved decision on the motion made by defendant at the close of the People's case to dismiss the Falsifying Business Records charge for legal insufficiency. That motion must now be decided.

Upon such a motion, it is well settled that the Court must view the evidence in the light most favorable to the People, and must ask whether any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. People v. Contes, 60 NY2d 620 (1983).

The People allege in substance that defendant committed the crime of Falsifying Business Records by submitting to New York Life a fake February 2, 2002 letter that purported to be written by the complainant Mr. Bennett, and that defendant did so in order to conceal the fact that she had stolen Mr. Bennett's nine thousand dollars.

Defendant's motion to dismiss the Business Records Count presents two issues: one factual; and one legal. The factual issue is fairly easily disposed of - - for the reasons detailed (in Section 2(a)) directly below, the Court finds that the People's evidence was more than sufficient to permit the jury to conclude as a factual matter that defendant Dove forged or otherwise fabricated the February 2 letter with the requisite guilty intent.

The more interesting legal issue presented is whether a letter like the February 2 letter - - which purports to be a letter written by someone outside New York Life - - qualifies as a "business record" of New York Life for purposes of the Falsifying Business Records statute. For the reasons detailed (in Section 2(B)) below, the Court finds that it does.

The Falsifying Business Records charge herein refers to a letter dated February 2, 2002. The letter purports to be written and signed by the complainant Kirkland Bennett. It indicates in substance that Mr. Bennett did not give defendant Dove nine thousand dollars on January 30, 2002, and further states that Mr. Bennett will therefore void the receipt defendant Dove had given Mr. Bennett. (That receipt appeared to be an acknowledgment by defendant Dove that she did in fact receive nine thousand dollars from Mr. Bennett on January 30.)

If this February 2 letter were genuine and true, it would appear to show that Mr. Bennett never gave defendant Dove nine thousand dollars in the first place, and that defendant is therefore wholly innocent.

However, the People contend that the February 2 letter is a fake. In that connection, Mr. Bennett testified: 1) that he never wrote or signed any such letter; and 2) that he did indeed give defendant Dove nine thousand dollars on January 30 to buy a New York Life policy, but that Ms. Dove kept the money for herself. Moreover, the signature on the February 2 letter has a very strange appearance; to a layman's eye, it appears to have been tampered with in some way.

A New York Life representative (Ms. Chinn) testified in substance that in December of 2003 Ms. Dove presented the February 2, 2002 letter to New York Life in response to New York Life's investigation, and that Ms. Dove represented in substance to New York Life that this was a genuine letter written by Mr. Bennett. Ms. Chinn's testimony established that the document placed in evidence by the People was the very same document that Ms. Dove had provided to New York Life; among other things, Ms. Chinn identified the document by the distinctive hole punches she used when placing the document in her investigative file.^[FN10]

On a motion to dismiss for legal insufficiency at the close of the People's case, the Court must, of course, view the evidence in the light most favorable to the People. In essence, that means that for the purpose of the motion the Court must treat the trial testimony of the People's witnesses as credible and true, and leave to the jury's ultimate determination any genuine questions of credibility. See People v. Way, 59 NY2d 361, 365 (1983); People v. Vasquez, 142 [*14][*15]AD2d 698 (2d Dept.), app. den. 72 NY2d 1050 (1988).

Measured against this legal standard, there is little question that the People's evidence entitled the jury to find as a factual matter that the February 2 letter was indeed a fake created by defendant Dove. Mr. Bennett's testimony (if accepted as true) established that the letter was a fake; and his testimony - - taken together with the other evidence presented by the People - - further established : 1) that Ms. Dove nevertheless presented the letter to New York Life as genuine; 2) that Ms. Dove directly benefitted from the fake letter because (if believed) the letter would have exonerated her of the accusation that she had stolen Mr. Bennett's money; and 3) logically speaking, nobody else would have benefitted from creating such a forged letter. The jury was therefore richly entitled to conclude that the February 2 letter was fabricated by Ms. Dove ^[FN11] in order to cover up her theft of Mr. Bennett's money.

Article 175 of the Penal Law deals with offenses involving false written statements. It includes the crime of Falsifying Business Records in the First Degree (PL §175.10), for which defendant Dove was convicted here. Penal Law §175.00 in relevant part defines a "business record" as any "writing . . . kept or maintained by an enterprise for the purpose of evidencing or reflecting its condition or activity."

Certain kinds of purely internal records that are written and kept by a business's own employees plainly fit within this definition. For example, internal accounting records - - such as expense reports or payroll entries - - easily qualify as business records.

The present case, however, involves a February 2, 2002 letter that at least purports to have been written by the complainant Kirkland Bennett and then sent to New York Life. Mr. Bennett did not and does not work for New York Life.

Plainly, a customer letter sent to New York Life would not qualify as a "business record" of New York Life under the traditional hearsay exception for business records. (The business records exception to the hearsay rule ordinarily requires that the record be made by a business's own employee or agent in the ordinary course of business.) See CPLR §4518; People v. Cratsley, 86 NY2d 81, 89 (1995).

But would a customer letter that contains falsehoods nevertheless constitute a "business record" of New York Life for purposes of Article 175 of the Penal Law? More generally, for the purposes of Article 175, does a letter (or a similar document) that either comes from, or goes to, a person outside the business in question, constitute a "business record"? [*16][*17]

Surprisingly, the answer that emerges from the case law is less than clear. The issue is an important one because New York's law prohibiting Falsifying Business Records is often a key component of prosecutions involving business-related crime. (Moreover, several other States have penal statutes that employ language that is identical, or virtually identical, to §175.10.)^[FN12]

There are two very different lines of cases that interpret Article 175's definition of "business records." The first line of cases construes the term "business records" fairly narrowly; these cases therefore exclude from the scope of the Falsifying Business Records statute certain documents that either came from, or went to, parties outside the business at issue, even where those documents contain important falsehoods.

For example, in People v. Bel Air Equipment Corp., 46 AD2d 773 (2d Dept. 1974), aff'd 39 NY2d 48 (1976), the Appellate Division looked at "padded" invoices that a moving company sent out to a client for services that were not in fact performed. Although the moving company retained a copy of the padded invoices for its own files, the court found that the invoices were not part of the company's own "business records." The court explained that this was so because the invoices' purpose was to cheat the customer, but not to reflect the company's own activities and financial condition.

Similarly, in People v. Papatonis, 243 AD2d 898 (3d Dept. 1997) the court examined an employment application that contained false statements concerning the defendant Papatonis' criminal history. The application submitted by Papatonis was retained by his employer in its files. However, the court held that the employment application was nevertheless not part of the employer's "business records" for purposes of the Falsifying Business Records statute. The court explained that the purpose of the application was not to reflect the employer's condition and activities, but rather to help the defendant Papatonis get a job.

The recent (and highly publicized) case of People v. Norman, 5 Misc 3d 1016(a) (Sup. Ct., Kings Co. 2004) follows Bel Air Equipment and Papatonis. In Norman the learned trial judge considered an Election Committee's false financial report that was submitted to and retained by the Board of Elections. The court held that the financial report was not a falsified "business record" of the Board of Elections; the purpose of the false report was to reflect the Election Committee's activities, but not the activities of the Board of Elections.^[FN13]

All these cases indicate that when outside parties submit documents that contain falsehoods to an enterprise, those documents are not "business records" of the enterprise for purposes of the Falsifying Business Records statute. Under this line of reasoning, the outside party who submits false documents might be guilty of fraud, or of offering a false instrument for filing, or the like, but not of Falsifying Business Records.

However, there is another and very different line of cases in which courts have appeared [*18][*19]to employ a much broader definition of "business records" for the purposes of the Falsifying Business Records statute. This line of cases appears to indicate that the submission by an outside party of a document containing falsehoods to a business (or other enterprise) can constitute the crime of Falsifying Business Records.

For example, in People v. Smith, 300 AD2d 1145 (4th Dept. 2002) the court sustained an indictment charging Falsifying Business Records. In that case the defendant had applied to the Steuben County Public Defender for court-appointed counsel. He submitted a false affidavit that failed to report certain income he had received. The Appellate Division held that the false affidavit "constitute[d] a business record" of the Public Defender's Office - - even though the affidavit was not written by any person employed by the Public Defender, and would appear to have reflected the defendant's financial status (rather than the Public Defender's condition and activities). See Smith, 300 AD2d at 1146.

Similarly, in People v. Fuschino, 278 AD2d 657 (3d Dept. 2000) the court held that defendant was properly convicted of Falsifying Business Records where the defendant made a series of phone calls to the Niagra Mohawk electric power company. In those calls, defendant pretended to be a customer and maliciously asked that said customer's electric service be terminated. The Third Department found that because defendant's calls caused Niagra Mohawk to make false entries in its records, defendant was indeed guilty of Falsifying Business Records. People v. Linardis, 104 Misc 2d 56 (Sup. Ct., Queens Co., 1980) is similar to both Smith and Fuschino. In Linardis, the trial court held where a physician submitted a false claim to an insurer, he was guilty of falsifying the insurer's business records because the insurer relied on the physician's false claims.

In short, the present case provokes the seemingly simple question: Where an outside party writes a dishonest letter (or other document) to a business (or other enterprise), is that outsider guilty of Falsifying the Business Records of the business in question? One line of cases - - including People v. Bel Air Equipment - - says no; but another line of cases - - including People v. Smith - - appears to say yes.^[FN14] The present case therefore suggests that this important legal question should be directly addressed and resolved, either by the Legislature or by a higher court.

Fortunately, however, it is not necessary for this Court to fully resolve that legal question in order to decide the motion presently before the Court. As noted, the Court has reserved decision on defendant's motion (made at the close of the People's case) to dismiss the Falsifying Business Records Court of the Indictment for insufficient proof; and (as noted) on such a motion, the Court must (of course) view the evidence in the light most favorable to the People.

The alleged false business record in this case is the February 2 letter. The People's theory is that this letter is a false business record of New York Life. Admittedly, the February 2 letter purports to be written by the complainant, Mr. Bennett; and Mr. Bennett never worked for New York Life. But the People's proof (if accepted as true) demonstrated that the February 2 letter [*20][*21]was a fake that was fabricated by the defendant, Ms. Dove. Defendant Dove did work for New York Life, as an agent; she was not an "outsider." The import of the February 2 letter was that Mr. Bennett had not given nine thousand dollars to New York Life (through its agent, Ms. Dove) on January 30, 2002. The letter was thus intended by Ms. Dove to reflect New York Life's activities and condition; specifically, Ms Dove intended this letter to show that New York Life did not receive money from Mr. Bennett on January 30.

Viewed in this light, the February 2 letter does qualify as a business record for purposes of the Falsifying Business Records statute. It is not a document written by an "outsider" to New York Life. It is instead (to paraphrase P.L.§175.00) a "writing . . . kept" by New York Life "for the purpose of evidencing or reflecting its condition or activity."

The motion to dismiss the Falsifying Business Records charge herein is therefore denied.

For all the foregoing reasons, defendant's motion to set aside the verdict as inconsistent is denied, and her motion to dismiss the Falsifying Business Records charge is also denied.

This Opinion constitutes the Decision and Order of the Court.

Enter,

Dated: Bronx, New York____________________

April 27, 2007Ethan Greenberg, A.J.S.C.