New York Criminal Lawyer Blog
The defendant is a New York State Assemblyman and the chairman of the Executive Committee of the County Democratic Party (CDC). According to the evidence before the grand jury, as an Assemblyman he routinely traveled from Brooklyn to Albany and back on New York State Assembly business. At the same time, as chairman of the CDC, he was provided with a car and a credit card by which the CDC paid all of his car-related expenses, including gas, oil and routine maintenance. During the period of time covered by the above-captioned indictment, the defendant submitted vouchers by which he sought and received a mileage allowance for the miles he had driven to and from Albany. It is the theory of the prosecution that by receiving the mileage allowances sought in the vouchers, the criminal defendant stole money from the State of New York by falsely claiming to have incurred the expenses which the allowances were meant to reimburse, and that when he certified on the vouchers that he incurred those expenses and was due a balance that included the mileage allowances, the certification on each voucher constituted a false statement.
Based on evidence, the defendant was indicted by the grand jury and charged with one count of grand larceny in the third degree and 76 counts of offering a false instrument for filing in the first degree. The grand larceny count alleges that pursuant to a common scheme and plan, the defendant stole more than $3,000 from the State of New York by seeking and obtaining reimbursement for travel expenses that the defendant claimed to have incurred in New York and other counties by means of false pretenses in written instruments that the defendant offered for filing. The 76 false filing counts concern those written instruments, 76 travel vouchers (formally called NYS Assembly Member Per Diem Expenses Reimbursement Vouchers), which the counts allege the defendant offered for filing with the intent to defraud the State, knowing that each contained a false statement and false information concerning travel expenses that the defendant purported to incur in New York and other counties.
In an omnibus motion, the defendant seeks inspection of the grand jury minutes and dismissal or reduction of the charges in the indictment, claiming that the evidence before the grand jury was legally insufficient and that the grand jury proceedings were defective. The defendant also claims that the indictment itself is defective and that there are jurisdictional and legal impediments to his conviction for the crimes charged. The defendant also moves to dismiss the indictment in the interests of justice. Finally, the defendant moves for an order directing the State to provide him with a bill of particulars and for discovery and inspection. Upon consideration of the papers submitted by both the defendant and the State, and after hearing oral argument from both parties, the court issues that the defendant’s motion for the court to inspect the grand jury minutes is granted; the court has inspected and reviewed the grand jury minutes. The defendant’s motion for disclosure of the grand jury minutes to him has previously been granted to the extent that, with minor redactions, the testimony of two witnesses has been provided to him. The motion to disclose the remainder of the grand jury minutes is denied since that disclosure is unnecessary for the resolution of the defendant’s motions.
During the time period set forth in the indictment, the CDC provided the defendant, as chairman, with a series of Lincoln Town Cars for use at his discretion. Although each car was registered to him and his Assembly license plates were attached to the car, it was leased by and the lease payments were made by the CDC. The defendant charged all expenses for the car, including gas, maintenance and repairs, to the CDC’s corporate account with using a credit card for which he was the designated cardholder, and which, according to testimony before the grand jury, the CDC provided to him for paying expenses reasonably related to the business of the County Democratic Committee. The account statement was sent to an address in Brooklyn which appears to have been the defendant’s home. Bank Fraud was not charged.
The CDC paid all the bills received from the credit card company for the charges to the credit card account, including the expenses charged by the defendant for the gas, maintenance and repair of each of the Lincoln Town Cars he used during the time period set forth in the indictment. As chairman of the CDC, the defendant was the only person who could authorize payment of its bills, and the treasurer of the CDC signed checks for the approved payments only if a bill was submitted with the chairman’s treasurer voucher, requesting payment. During the time period covered by the indictment, the defendant made 96 purchases of gasoline that he charged to the credit card, as well as other charges for the maintenance and repair of the car. All of those charges were included in the bills for the CDC account, and all of the bills that included these charges were paid by the CDC to the credit card company at the defendant’s direction.
Over the same period of time, the defendant submitted 76 pairs of Quick Pay Vouchers and NYS Assembly Member Per Diem Expenses Reimbursement Vouchers to the New York State Assembly Finance Officer in order to obtain compensation for his lodging, meals, transportation and tolls while he was away from his home or his district office on Assembly business. The Finance Officer, in turn, submitted them to the New York State Comptroller’s Office. Each pair of documents sought, in addition to reimbursement for tolls and a per diem allowance covering lodging and meals, a fixed number of cents per mile for using a personal vehicle in traveling 320 miles round trip between Brooklyn and Albany. The mileage allowance sought through these vouchers constituted reimbursement for wear and tear to the car resulting from the travel between Brooklyn and Albany, and for the cost of gasoline, tires, oil and maintenance.
On each such voucher, the defendant signed his name directly below the certification. In response to each of the 76 pairs of vouchers the defendant submitted, the Comptroller’s Office issued him a check, written on the account of the Division of the Treasury of the State of New York Department of Taxation and Finance, for the full amount requested. The total amount the State paid to the defendant as reimbursement for the use of his personal vehicle on the round trips he made between Brooklyn and Albany during the 3½-year period set forth in the indictment totaled more than $5,500.
The grand jury also received information concerning the statutory basis for reimbursement of New York State legislators. Specifically, they learned that Legislative Law provides that each member of the Legislature shall receive payment of actual and necessary transportation expenses while in travel status in the performance of his or her duties. In addition, the Counsel to the New York State Assembly testified that if a Member of the Assembly received payment for travel expenses from another source, and did not pay the expenses himself, he would not have incurred those expenses or be entitled to reimbursement for them. More specifically, the Counsel to the New York State Assembly testified that if a Member of the Assembly did not have to pay for a personal vehicle or pay the expenses of operating such a vehicle, reimbursing the Member for those expenses would not be consistent with Legislative Law or the governing regulations. Finally, the Chief Auditor of State Expenditures for the New York State Comptroller’s Office testified that the defendant did not have the right to receive reimbursement for expenses for which he did not himself pay.
The evidence presented to the grand jury was sufficient to support the charges contained in the indictment, and the defendant’s motion to dismiss the indictment, or, in the alternative, to reduce the charges on this ground is denied. Legally sufficient evidence means competent evidence which, if accepted as true, would establish every element of the criminal act charged and the defendant’s commission of it. In determining whether grand jury evidence is legally sufficient, the court must determine whether the evidence, viewed in the light most favorable to the Sate, if unexplained and un-contradicted would be sufficient to warrant conviction by a trial jury. Even when assessing the sufficiency of the evidence in a case in which it is entirely circumstantial, the court’s inquiry is limited to whether the facts, if proven, and the inferences that logically flow from those facts supply proof of every element of the charged crimes. The fact that innocent inferences could possibly be drawn is irrelevant, as long as the grand jury could rationally draw the inference of guilt.
Based on the evidence described above, the grand jury could find that by submitting the vouchers, the defendant knowingly, and with intent to defraud, sought and received payment for mileage allowances for driving expenses that he did not actually incur, and thus stole money from the State of New York. The grand larceny count properly aggregates the amount of money the defendant obtained from the vouchers submitted, on the theory, specifically alleged in the indictment, that the grand larceny occurred pursuant to a common scheme and plan. Such aggregation is permissible even though the successive takings extended over a long period of time.
The defendant claims that the evidence fails to establish that grand larceny was committed in the manner specifically alleged in the first count. An indictment need not specify that a defendant committed grand larceny in any particular manner unless the theory of prosecution is that the grand larceny was from a person or was committed by extortion. In particular, when the theory of the prosecution is that the grand larceny was committed by false pretenses, the indictment need not so specify. Here the grand larceny count nonetheless specifically alleges that the defendant committed grand larceny by means of false pretenses.
In essence, the defendant’s argument is that by purchasing gas and paying for other vehicle-related expenses, he had, in fact, incurred those expenses, even though he charged them to the CDC credit card. According to the defendant, those expenses came to be incurred by the CDC, and were no longer his own, only when the CDC paid the credit card bills that included the charges for those expenses, an event which he says occurred after the vouchers were already submitted. Relying on this argument, he insists that because they were, in fact, his expenses at the time the vouchers were submitted, he may not be charged with grand larceny predicated upon an alleged misrepresentation relating to a past or present fact, but instead can only be charged with grand larceny predicated on a false promise of future conduct, that is, an implicit promise that in the future the defendant, rather than the CDC, would pay for the charges.
The defendant’s argument is without merit. According to the evidence before the grand jury, the mileage allowance represented compensation, not only for gas and other out-of-pocket expenses related to the use of a personal car, but also for the expense of wear and tear.
Persons provided with benefits should be thankful that they are given such because of their position and the importance of their jobs. However, benefits should not be taken advantage and should not be used to gain extra money. If you want to pursue a legal action against a person who committed fraud, the Bronx County Grand Larceny Lawyer together with the Bronx County Criminal Attorney can help. Stephen Bilkis and Associates can also provide you with the Bronx County Robbery Lawyers anytime you need one.