The Motion by defendant Auguste, dated August 15, 2014 and the Motion by defendant Paquiot, dated August 4, 2014, pursuant to CPL 330.30 to set aside (or modify as to defendant Paquiot) the respective verdicts convicting them after a two-month jury trial of various counts of Grand Larceny in the Third Degree (eight counts as to Auguste, twelve counts involving different victims as to Paquiot) and one count of Scheme to Defraud in the First Degree, upon consideration of the People's Answer, dated September 23, 2014, is denied.

For purposes of this decision, familiarity with the record will be assumed.

Auguste contends the Court should have granted the defendant's oral motions made both during jury selection and during trial to sever her case from the case of co-defendant Jude Valles based on what the defense claims to have been irreconcilable conflicting defenses.

Auguste further contends that the Court wrongfully sustained the People's objections to [*2]certain evidence based on "hearsay" objections by the People.

Auguste further contends that certain juror misconduct involving a dismissed alternate juror requires that the verdict be set aside.

Paquiot contends that the evidence was insufficient to support her conviction, in that, although she was an employee (but not an owner) of an educational institution (ILPN) which did not provide its nursing students the promised opportunity to sit for the New York State licensing examination, the jury wrongfully concluded based on insufficient evidence that she had the intent to defraud and steal the tuition money from these students.

Paquiot additionally contends that the same juror misconduct raised by Auguste requires that the verdict be set aside. Because both defendants raise this identical claim, the juror misconduct issue will be jointly discussed in the final section of this decision.

Auguste claims that her motion to sever should have been granted, because the defense interposed by co-defendant Jude Valles (who was found not guilty of all charges by the same jury in a joint trial) was so prejudicially antagonistic to her defense that she did not receive a fair trial.

Whether defenses interposed at trial by co-defendants are so antagonistic that a severance is required is determined by a two-part test: (1) the core of each defense is in irreconcilable conflict with the other (i.e., that if the jury believes one defense, it must necessarily disbelieve the other) or (2) there is a significant danger as both defenses are portrayed that the conflict alone would lead the jury to infer the defendant's guilt. People v. Cardwell, 78 NY2d 996, 997-998 (991); People v. Mahboubian, 74 NY2d 174, 184-185 (1989).

The mere fact that defenses may be "antagonistic," does not necessarily mean that the defenses are "mutually exclusive and irreconcilable" to such a degree that a jury could not credit both defenses. Mahboubian at 185.

In this case, "the core" of Auguste's defense was that she founded and operated a "distance learning" institution (Life V-TEC) that was legitimately affiliated with a school (National Academy) in Jamaica, West Indies. This was done with the guidance of co-defendant Jude Valles whom she believed had successfully operated a similar "distance learning" school in Georgia and to whom she paid approximately $3,000 for each student for the services of Valles to act as a liaison with National Academy and its President, Audley Burke. It was Auguste's defense at trial that because she honestly and reasonably believed the students at her school should have been found to have been qualified by New York and other states to take the practical nurse licensing examination (NCLEX), that she did not commit the crimes of Scheme to Defraud and Grand Larceny. Even though graduating students from Life V-TEC were not permitted to sit for the NCLEX examination, Auguste maintained that this was due to wrongful actions by State authorities and not to any impropriety by her.

The theory of Valles' defense was not "renunciation" as characterized in Auguste's Motion. Indeed, the affirmative defense of "renunciation," as defined in PL 40.10 (1), involves a renunciation by a defendant of his criminal purpose and a withdrawal from participation in such offense. Valles never conceded that he was ever engaged in any criminal activity and, therefore, never claimed that he"withdrew" from any crime that [*3]may have been committed by others.

The "core" of Valles' defense was that he never engaged in criminal conduct at all. Valles claimed at trial that when he learned that an owner/operator (Franz Simeon) of a different "distance learing" school (ILPN) he had helped establish, under arrangements similar to those made with Auguste, was breaking his financial agreement avoiding paying Valles the per student liaison fee by obtaining National Academy documents directly from Audley Burke, Valles anonymously contacted New York State authorities and reported, in effect, that the nursing students at ILPN were not actually attending National Academy and that Audley Burke was selling bogus National Academy diplomas and transcripts to Simeon.

Valles testified that he helped establish both ILPN and Life V-TEC as legitimate "distance learning" schools affiliated with National Academy, a school whose program he believed should have qualified the students at both ILPN and Life V-TEC to sit for the NCLEX exam.

Valles further testified that not only did he not report Auguste's school, Life V-TEC, to the New York State authorities, Valles also testified that he had no reason to believe either that Auguste was engaged in criminal conduct (Trial at 2904) or that she was stealing from or misleading her students (Trial at 2906).

Even after Valles had reported ILPN to New York State authorities, Valles testified in answer to questions posed by Auguste's attorney, that Valles, in November of 2007, wrote a letter to Audley Burke on behalf of Auguste requesting that Burke write a letter to New York State officials on behalf of Auguste and Life V-TEC so as to assist in permitting Auguste's students to take the NCLEX exam (Trial at 3020).

Far from being "irreconcilable," the "core" of the defenses of Auguste and Valles were similar. They each believed that the students at Auguste's school should have been allowed to sit for the NCLEX exam, because those students were enrolled in a legitimate "distance learning" program affiliated with National Academy and, unlike the students at ILPN who were not actual students at National Academy, the students at Life V-TEC deserved to qualify for the NCLEX exam. Further, it was each defendant's position that the inability of Auguste's students to take the NCLEX was brought about because State officials over-reacted to Valles' complaints about ILPN and Burke and would not allow any purported graduate of National Academy to take the NCLEX, even though National Academy was a qualified practical nursing school in Jamaica.

In this case, there was no danger at all that in accepting Valles' defense, the jury would infer Auguste's guilt. Quite to the contrary; acceptance of Valles' defense would tend to establish Auguste's innocence. Rather than take an "adversarial stance" towards Auguste and becoming a "second prosecutor," Valles' defense consistently portrayed Auguste's program as legitimate. The absence of an "adversarial stance" between the defendants is a factor militating against a conclusion that Auguste was prejudiced by a [*4]joint trial. Cardwell at 998.

Therefore, the motion to set aside the verdict on this ground is denied.

Auguste contends without citations to the record that the defense "was not allowed to elicit information about National Academy, in documentary or verbal form, from prosecution witnesses... ." The Motion does not detail the specific information allegedly precluded nor does the Motion refer to the reasons given by the Court in each situation for its ruling, which in some or even all instances may, in fact, have been legally correct. Thus, the Motion does not establish that the court's rulings "would require a reversal as a matter of law." CPL 330.30 (1).

The "information" referred to in this Motion may very well have either consisted of hearsay, or self-serving letters written by participants in this scheme to defraud, or unauthenticated documents, all sought by Auguste to be admitted for the truth of the assertions they each contained.

During the trial, there was substantial hearsay evidence of this nature that the Court did admit into evidence, sometimes over the objections of the prosecution, with limiting instructions given to the jury that these matters were not admitted for their truth but, rather, as evidence of the state of mind of one or more of the defendants, including Auguste. This evidence may even have, in some cases, duplicated evidence that was previously excluded.

However, because the Motion does not specify what particular matters were not permitted into evidence or the reasons given for their exclusion, it cannot be ascertained whether these rulings were improper, and, if so, were so prejudicial to Auguste's defense that reversal would be required as a matter of law.

Therefore, the Motion to set aside the verdict on this ground is denied.

Paquiot contends the trial evidence was not legally sufficient to establish her guilt on any of the charges for which she was convicted.

This argument is based not on an assertion that the evidence did not establish beyond a reasonable doubt that these crimes were committed at ILPN but, rather, that the evidence did not establish that while working at ILPN Paquiot acted in concert with those persons at ILPN who committed these crimes.

The evidence demonstrated that Paquiot began as an employee in the office of ILPN and eventually had the title of "Director." The evidence also demonstrated that the defendant was aware of complaints being made by virtually every "graduating" student at ILPN (actually the diplomas were from National Academy) that they were not being allowed to sit for the NCLEX exam.

The evidence also demonstrated that Paquiot was aware of several "don't worry, everything will be alright" meetings that were held at ILPN between the administration [*5]and the angry and concerned students who were not allowed to sit for the NCLEX exam and the various mailings that were sent by ILPN to the students as a result of the fliers distributed at ILPN by Valles accusing Franz Simeon of various improprieties in running ILPN.

Based on the trial evidence and viewing it in the light most favorable to the People, there was legally sufficient evidence as a matter of law for the jury to conclude that Paquiot was aware of the true situation at ILPN and intentionally assisted others at the school in maintaining the on-going larcenies by false pretense and scheme to defraud. People v. Cabey, 85 NY2d 417, 420 (1995) (evidence of defendant's presence at the scene of a crime and the surrounding circumstances may be sufficient to show the defendant was a knowing participant).

Therefore, the Motion to set aside the verdict on this ground is denied.

Auguste claims that, "prior to, and during the course of jury deliberations, one or more alternates [jurors] were communicating about the case with counsel for one or more of the co-defendants and the seated/deliberating jurors."

Auguste further claims that prior to the jury rendering the verdict, counsel for Auguste, Toni Marie Angeli, saw William Fowlkes, counsel for co-defendant Paquiot, conversing outside the courtroom with discharged Alternate Juror No.5. Angeli asserts hearing Alternate #5 say to Fowlkes that he "came to support his other jurors at the verdict," and that thereafter Alternate #5 and Fowlkes conferred privately in the hallway. While they were speaking, the jury sent in a note stating it had reached a verdict.

After the verdict was rendered, Angeli alleges that Fowlkes "indicated" to her that Nytaino Romulus, the attorney for the acquitted co-defendant Jude Valles, "had been in communication with the two dismissed male alternates throughout the course of the deliberations, [and] that at least one of those alternates was in turn communicating information to and from the deliberating jurors."

Angeli asserts that "over the course of post-verdict investigations, it further became known that Alternate #5 was providing legal advice, legal opinions and factual information to the deliberating jurors... ."

Angeli does not provide any further detail as to the sources of this information other than a transcript of an unsworn two-hour partially recorded conversation between Alternate #5 and Fowlkes. That transcript, as will be discussed below, however, does not support the assertion that Alternate #5 provided any factual or legal information to the jury, nor does it support Angeli's assertion that Romulus "had been in communication with two dismissed male alternates throughout the course of the deliberations... ."

Paquiot's Motion to set aside the verdict is also based on a claim of juror misconduct involving communications by Alternate #5 with the deliberating jury.

Counsel for Paquiot, William Fowlkes, provides more detail than Angeli about these purported improper communications based on his personal conversations with Alternate #5.

According to Fowlkes, after the two remaining alternate jurors were discharged on the second day of deliberations (a Friday) they jointly spoke outside the courtroom with "all the lawyers in the case" (it is not clear from this language if the prosecutors were also present). At that discussion, Alternate #5 expressed his views of the case and then spoke separately with Nytaino Romulus, counsel for Valles.

Valles was acquitted later that same day, after the Court with the consent of counsel asked the jury before recessing for the weekend if the jury had reached a verdict with respect to any defendant. Prior to their partial verdict on Friday, the jury had been sequestered, and, therefore, they could not have communicated with anyone during that day. Accordingly, contrary to what may be implied in these Motions, Romulus, after the acquittal of his client on Friday, would have had no reason to use thereafter Alternate #5 as an intermediary to communicate with the jury while they continued to deliberate until the following Thursday with respect to the remaining two defendants.

Paquiot's Motion includes an affidavit from her friend, Louis Joseph. That affidavit asserts that on the following Thursday, the day of Auguste's and Paquiot's verdict, he saw Alternate #5 in the courtroom hallway. Joseph engaged Alternate #5 in a conversation in which Alternate #5 stated he was there because he believed the jury would have a verdict that day, that he knew a juror had to leave early the day before, and that he "knew from the very beginning" that another juror had to leave for travel the next day which is why he "smilingly" said he knew "they had to come in with a verdict today."

When Louis told Alternate #5 that he was "positive" and "hopeful" about the outcome, Alternate #5 said, "It is good to be positive." Louis' affidavit states that Fowlkes then approached them and talked with Alternate #5 and Louis left. "Minutes later," the parties were summoned to the courtroom for the verdict, but Alternate #5 did not go inside because he "did not want the Judge to think of something."

According to Fowlkes, he spoke with Alternate #5 in the hallway before the verdict. Alternate #5 told him he knew one of the jurors had plane tickets for the next day and that the had heard "the judge had threatened a mistrial." (The Court had previously asked counsel after being informed of a juror's Friday travel plans in a jury note on Tuesday, June 17th, if counsel would consent to adjourn deliberations until the juror

Fowlkes states on this Motion that Alternate #5 told Fowlkes that one of the deliberating jurors had called him the day before to discuss the fact that a juror had travel plans for Friday. Alternate #5, according to Fowlkes, said he had discussed this matter in this telephone conversation and that "he sent out a text to the other jurors that he was in [*6]contact with, explaining what he understood a mistrial to mean." Fowlkes' affidavit then states, "[a]t that moment, the court officer called counsel into court announcing there was a verdict."

According to Angeli's affidavit, she spoke with Fowlkes after the verdict to inquire about the substance of his conversation with Alternate #5 and was told, as noted above, that Romulus had been relaying information to the deliberating jury through at least one of the discharged alternate jurors. It was at her insistence that both she and Fowlkes "went directly to Part 22 and informed the court clerk."

The Court itself was not informed by counsel of their interactions with Alternate #5 and no record was made by counsel. Whatever these attorneys knew prior to the rendition of the verdict about juror misconduct or about the misconduct of Alternate #5 in relation to a deliberating juror, it was not reported until after the rendition of the guilty verdicts, a prerequisite for a motion pursuant to CPL 330.30 (2) to set aside that verdict based on juror misconduct that was known before the rendition of the verdict.

Fowlkes' affidavit states that he met with Alternate #5 the following day in his law office. Fowlkes recorded the conversation apparently without administration of an oath. The recording begins with unintelligible sounds for a brief period and then Fowlkes tells Alternate #5, "All right, go." The unrecorded conversation that took place between Alternate #5 and Fowlkes before Fowlkes started the recording is not described by Fowlkes.

According to the transcript of the recorded conversation submitted on Paquiot's Motion and relied on in Auguste's Motion, Alternate #5 believed Paquiot should have been acquitted, and based on what Alternate #5 claims he was told by one or more jurors he spoke with during deliberations, he believed she would be. (This belief is consistent with the "positive" outlook Alternate #5 conveyed to Paquiot's friend, Louis Joseph, on the day of the verdict.)

Fowlkes in his supporting Memorandum of Law at 6 - 7, asserts that Alternate #5 "indicated" in their recorded conversation that "he was supporting and arguing for a not guilty verdict for Ms. Paquiot."

However, Fowlkes thereafter asserts in his Memorandum of Law at 7 that Alternate #5 "may have just been misleading counsel," when he said this and that, "[i]t is more reasonable to conclude [Alternate #5] was influencing the jury to convict Ms. Paquiot rather than acquit her."

Thus, on the one hand Fowlkes has submitted these unsworn statements by Alternate #5 concerning juror misconduct as a basis to set aside the verdict, yet, on the other hand, Fowlkes himself expresses an opinion that Alternate #5 was possibly deliberately misleading him in this same conversation. Indeed, not only do Fowlkes and Alternate #5 speculate about the reasons for the verdict, Fowlkes in his Motion speculates that Alternate #5's speculations were not truthful.

An examination of the 96-page transcript does not, despite the broad claims of [*7]juror misconduct and prejudice made in each motion, disclose to this Court any statement by Alternate #5 that he actually provided the jurors with any information or opinion that was prejudicial to either defendant and, furthermore, neither defendant, despite having the recording and its transcript available, cites any express statement by Alternate #5 that he either gave information to the jury that was prejudicial or even any hearsay statement by a deliberating juror made to Alternate #5 that the verdict was based on anything other than the evidence.

For example, Alternate #5 said he was told by a juror who was "staunch on not guilty" for Auguste that during deliberations the jury, embodied in a jury note, at that juror's request listened to a particular recording characterized in Angeli's summation as exculpatory but, after listening to it, the jury decided otherwise (Tr. at 2 -3). Alternate #5 in the recorded conversation with Fowlkes did not say he influenced that decision in any way.

Alternate #5 stated at several points, sometimes with the encouragement of Fowlkes, that he believed the verdict convicting Paquiot was the result of the trial judge "threatening a mistrial" (e.g. Tr. at 14 [Fowlkes: "...so basically they didn't even have the time to do that with Paquiot, they just came to a conclusion and just said look, let's get a verdict in...unfortunately it's just going to have to be guilty."]; 47 [Alternate #5: a juror told him after the verdict on the sidewalk that the "threat of a mistrial forced them to come up with a verdict"; Fowlkes: "But why would it be guilty?"]; 49 [Alternate #5: "I think they felt, and I'm emphasizing felt that they felt that Auguste was guilty, and Paquiot just happened to be guilty by association. That's what I think in their rushed [sic.] to have a verdict."]; 50 [Fowlkes: "I'm going to need some of that, somebody on the jury to say I was rushed. Is there somebody on the jury that can say that?"]; 91 [Fowlkes: "They were pressured into coming to that conclusion because they were afraid of a mistrial." Alternate #5: "Yes, that's what I believe, yes."]; 92 [Fowlkes: "...if they need a scapegoat, if they need a reason and they're like, you know, I don't want to, you know, then you can say look, put it on the judge. Say the judge, when the judge said the word mistrial to you, you got scared...and that immediately caused you to rush to judgment on Miss Paquiot. If you can say that, and it'd be true...then that would go a long way towards helping my motion for the judge to set aside the verdict."].)

A careful examination of the recorded conversation reveals no statement whatsoever by Alternate #5 that he provided any deliberating juror with information prejudicial to either defendant. Instead, the recorded conversation centered on the participants speculating about why Paquiot was convicted. Alternate #5 never states he was given the rationale underlying Paquiot's conviction by a deliberating juror.

The transcript does contain a statement by Alternate #5 that, "Stephanie, #3" said to him during deliberations that even though Auguste testified that she did not know Paquiot until they both were arrested, the jury examined the checks in evidence and found a check that Auguste wrote to ILPN, the school where Paquiot worked. This check [*8]apparently led "Stephanie #3" to illogically conclude that Paquiot and Auguste knew each other. Alternate #5 said, "That does not mean she knew [Paquiot]." Tr. at 83.

Therefore, if Alternate #5 contributed anything in response to the statement of "Stephanie #3," it would have been an argument in favor of Auguste and not prejudicial to either defendant— which apparently is why Auguste's Motion does not refer to this portion of the transcript.

What is curiously missing from this lengthy recorded conversation is any direct question by Fowlkes, asking Alternate #5 what he said to the deliberating jurors in an attempt to show his client was prejudiced by what Alternate #5 said. Because the entire conversation was not recorded, one can only speculate whether this obviously crucial subject was deliberately avoided by Fowlkes based on the unrecorded portion of their conversation.

Once such misconduct becomes known, a defendant is not permitted to remain silent about it while rolling the dice for an acquittal and then, only after a conviction, move to set aside the guilty verdict. People v. Scanlon, 52 AD3d 1035, 1039 (3rd Dept. 2008) lv denied 11 NY3d 741 (2008); People v. Barnett, 231 AD2d 806, 807 (3rd Dept. 1996); People v. Walsh, 222 AD2d 735, 736 (3rd Dept. 1995) lv denied 88 NY2d 855 (1996).

CPL 330.40 (2) (e) (ii) states that a motion to set aside a verdict may be denied if "the moving papers do not contain sworn allegations of all facts essential to support the motion."

For the defendants to prevail on this motion, it is essential to demonstrate that "a substantial right of the defendant" may have been affected by the purported improper juror communications. In this case, neither Motion contains sworn factual non-hearsay allegations that an improper communication even took place, no less a sworn factual non-hearsay allegation of the substance of any such communication that was actually prejudicial to either defendant.

Although Alternate #5 has made unsworn statements about what was said, the motions do not contain a sworn non-hearsay statement from any party or witness to this alleged impropriety.

The absence of a sworn non-hearsay statement supporting the motion permits the motion to be denied without a hearing. People v. Friedgood, 58 NY2d 467, 473 (1983) (affidavits from defense counsel and investigator concerning juror misconduct but none from the jurors themselves); People v. Giuca, 78 AD3d 729 (2d Dept. 2010) affg 23 Misc 3d 1104 (A) (Supreme Court, Kings County 2009), lv denied, 16 NY3d 859 (2011) (defendant's mother two years after the verdict recorded some of her conversations with a juror about the case in which the juror admitted to knowing associates of the defendant and to having read newspaper accounts of the case; the absence of sworn affidavits from the juror permitted denial of the motion to set aside the verdict without a hearing); People v. Covington, 44 AD3d 510, 510-511 (1st Dept. 2007) (allegations of juror misconduct supported only by hearsay) lv denied 9 NY3d 1032 (2008); People v. Comfort, 30 AD3d 1069 (4th Dept. 2006) (hearsay allegations insufficient); People v. Kerner, 299 AD2d 913 (4th Dept. 2002) (motion supported by only hearsay allegations in affidavit of defense counsel); People v. Stevens, 275 AD2d 902 (4th Dept. 2000) (motion denied which did not contain affidavit from a juror who participated in the deliberations); People v. Bradley, 258 AD2d 936 (4th Dept. 1999) (juror's hearsay account of another juror's statement permitted denial of motion without a hearing) lv denied 93 NY2d 922 (1999); People v. Salaam, 187 AD2d 363 (1st Dept. 1992) affd 83 NY2d 51 (1993) ([this is the "Central Park Jogger" case that was eventually dismissed on consent of the New York County District Attorney's Office] motion denied without a hearing based on attorney's affidavit that jurors read newspaper accounts of the case during the trial which was based on a radio interview of one of the jurors).