[*1]
People v McCline
2014 NY Slip Op 50066(U) [42 Misc 3d 1217(A)]
Decided on January 14, 2014
County Court, Sullivan County
LaBuda, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on January 14, 2014
County Court, Sullivan County


The People of the State of New York,

against

Kariem McCline, Defendant.




243S-2012



William T. Martin, Esq.

Law Offices of William T. Martin

945 East 226th Street

Bronx, NY 10466

Hon. James R. Farrell

Sullivan County District Attorney

414 Broadway

Monticello, NY 12701

Frank J. LaBuda, J.



This matter comes before the Court on Defendant's motions to (1) set aside the verdict pursuant to CPL §§330.30 and 310.50, and (2) dismiss the indictment pursuant to CPL §210.40. The People have submitted an affirmation in opposition. The Court heard oral argument on January 6, 2014.

On May 17, 2013, Defendant was convicted after jury trial of Offering a False Instrument for Filing in the First Degree (PL §175.35, Class E Felony) and acquitted of Falsifying Business Records in the Second Degree (PL §175.05, Class A Misdemeanor). Immediately after a reading of the verdict, Defendant argued to the Court that the verdicts were inconsistent/repugnant and requested that the Court direct the jury to return to deliberations and reconcile the apparent anomaly inherent in the verdict. The Court denied Defendant's request and dismissed the jury. The crux of Defendant's argument is that Defendant could not logically have been found not guilty of Falsifying Business Records, and then have been found guilty of Offering a False Instrument for Filing. [*2]

These charges were brought in connection with Defendant's application to become a police officer with the Village of Monticello Police Department.[FN1] It was alleged that Defendant intentionally failed to disclose his youthful offender and juvenile criminal records on the initial application, knowing he had a duty to do so, and again failed to disclose his criminal background, when subsequently questioned as part of the background check for employment; that he did so with the intent to defraud, knowing such application contained inaccurate information and would be filed with the police department. The People alleged that Defendant knew he had an obligation and duty to disclose his youthful offender and juvenile records, and omitted that history with the intent to defraud the Monticello Police Department.

Motion Pursuant to CPL §§330.30 and 310.50

A court may set aside a verdict after conviction and prior to sentencing upon any ground appearing on the record, which, if raised upon appeal, would require reversal or modification by an appellate court as a matter of law. CPL §330.30(1). A trial court is limited under CPL §330 to examining the evidence as a matter of law whereas an appellate court may delve into matters of fact. See People v. Carter, 63 NY2d 530 [1984]. The analysis is limited to determining the legal sufficiency of the evidence. People v Trimm, 252 Ad2d 673 [3rd Dept. 1998]. In deciding a CPL §330 motion, every instance must be judged in favor of the People. People v. Floyd, 176 AD2d 554 [1st Dept. 1991], lv. denied 79 NY2d 829 [1992].

In People v. Tucker, 55 NY2d 1 [1981], the Court of Appeals established the standard for judging whether a verdict is inconsistent or repugnant.

When there is a claim that repugnant jury verdicts have been rendered in response to a multiple count indictment, a verdict as to a particular count shall be set aside only when it is inherently inconsistent when viewed in light of the elements of each crime as charged to the jury. Review of the entire record in an attempt to divine the jury's collective mental process of weighing evidence is inappropriate. Id., at 4.


The Court continued, "The critical concern is that an individual not be convicted of a crime on which the jury has actually found that the defendant did not commit an essential element...." Id., at 5. The record should be reviewed as to the jury charges only. Id., at 7; People v. Muhammad, 17 NY3d 532 [2011]. A court examines only the jury instructions to determine whether the jury, as instructed, reached an "inherently self-contradictory" verdict. Id. [*3]

The Third Appellate Division, in People v. Bray. 46 AD3d 1232 [3rd Dept. 2007], reiterated this standard, holding, "A verdict is repugnant only when a defendant is found not guilty of one crime which contains a necessary element of another crime for which a guilty verdict was rendered." Id., at 1234. Therefore, as illogical as it may seem that a jury finds a defendant not guilty of one crime and guilty of another, the verdicts are not repugnant or inconsistent if any one element of the crime of acquittal is not an essential element of the crime of conviction. See People v. Muhammad, supra, at 540, 541, 542.

In the case at bar, while at first blush it seems illogical and inconsistent that the jury found Defendant not guilty of Falsifying Business Records in the Second Degree and guilty of Offering a False Instrument for Filing in the First Degree, a closer analysis of the essential

elements of each crime as provided in the jury instructions indicates the verdicts are not legally repugnant or inconsistent.

The essential elements of Falsifying Business Records in the Second Degree as contained in the jury instructions are (1) an omission to make a true entry, (2) with intent to defraud, and (3) knowledge of a duty to disclose. The essential elements of Offering a False Instrument for Filing in the First Degree as contained in the jury instructions are (1) knowledge of a false statement provided,[FN2] (2) with the intent to defraud, and (3) knowing the false statement will be filed. While knowledge of a "duty to disclose" was an essential element of Falsifying Business Records in the Second Degree as contained in the jury instructions, it was not an essential element of Offering a False Instrument for Filing in the First Degree. People v. Muhammad, supra. It is plausible that the jury in Defendant's case did not believe he had knowledge of a duty to disclose his youthful offender or juvenile convictions, and therefore did not falsify business records in August of 2011, but that at times subsequent thereto he knew his application for employment as a police officer was inaccurate and incomplete, knowing it would be filed with an intent to defraud the Monticello Police Department. Because this Court is not empowered to review the factual record of the trial in an attempt to "divine the jury's collective mental process of weighing evidence," the Court is unable to ascertain how the jury came to that conclusion. People v. Tucker, 55 NY2d at 4. The Court cannot consider the proof presented to the jury. People v. Muhammad, supra, at 542. In determining a motion to set aside a verdict pursuant to CPL §330, "the question is not whether there was proof [presented to the jury,] it is whether a theoretical defendant charged with the same offenses (as framed by the actual jury instruction) could have been guilty of one but not the other." Id., at 543. In the instant matter, it is entirely possible that a theoretical defendant could be found guilty of Offering a False Instrument for Filing in the First Degree as contained in the jury instructions, but not guilty of Falsifying Business Records in the Second Degree as contained in the jury instructions, because a required element of the latter, i.e., knowledge of the duty to disclose, is not an essential element of the former. [*4]

As for Defendant's claim that the jury's verdict was defective pursuant to CPL §310.50 because of the repugnancy of the verdictswas not raised prior to the Court dismissing the jury and is therefore unpreserved for review.

Motion to Set Aside Verdict on Grounds of Brady Violation

Defendant's claim of Brady violations is unsupported by his submissions. The statute clearly indicates that a defendant may only raise issues appearing in the record which may be raised upon an appeal from a judgment of conviction. CPL §330.30(1). This Brady issue is not part of the record, is a factual assertion outside the record, and therefore may not be properly raised in a CPL §330 motion. See People v. Wolf, 98 NY2d 105 [2002].

Motion to Dismiss Indictment in the Interest of Justice CPL §210.40

Last, Defendant's motion to dismiss the indictment pursuant to CPL §210.40 is untimely. A motion to dismiss the indictment pursuant to this section must be raised during pre-trial motion practice. CPL §255.20; see also People v. Banks, 100 AD3d 1190 [3rd Dept. 2012], lv denied 20 NY3d 1059 [2013], in which the Third Appellate Division dismissed an indictment after trial was complete, but prior to rendition of a verdict, and held that a motion to dismiss the indictment should be made pre-trial, but in any event, must be made prior to the verdict.

Based on the foregoing, this Court cannot set aside the guilty verdict in this case. It is, therefore

ORDERED that Defendant's motion to set aside the verdict is denied in its entirety.

This shall constitute the Decision and Order of this Court.

DATED:January 14, 2014

Monticello, New York

____________________________________

Hon. Frank J. LaBuda

Sullivan County Court Judge & Surrogate

Footnotes


Footnote 1:Defendant was indicted for Falsifying Business Records in the Second Degree and Offering a False Instrument for Filing in the Fist Degree concerning his application to become a Village of Monticello police officer, and two counts of Offering a False Instrument for Filing in the First Degree and two counts of Making an Apparently Sworn False Statement in the First Degree concerning a pistol permit application. The pistol permit related charges were severed from Defendant's trial and transferred to another County Court Judge (Hon. Michael F. McGuire) due to this Court having previously reviewed Defendant's pistol permit application.

Footnote 2:Interestingly, the jury instruction for Offering a False Instrument for Filing in the First Degree does not require authorship by the accused. It is sufficient that the People prove that with an intent to defraud, the accused had knowledge of the false statement and knew it would be filed.