        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

713
KA 10-00358
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, VALENTINO, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

OLE PETTERSEN, DEFENDANT-APPELLANT.


PETER J. DIGIORGIO, JR., UTICA, FOR DEFENDANT-APPELLANT.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (DANIEL J. JAWOR OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Oneida County Court (Barry M.
Donalty, J.), rendered May 27, 2009. The judgment convicted
defendant, upon a jury verdict, of offering a false instrument for
filing in the first degree (three counts).

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by vacating the amount of restitution
ordered and as modified the judgment is affirmed.

     Memorandum: Defendant appeals from a judgment convicting him,
upon a jury verdict, of three counts of offering a false instrument
for filing in the first degree (Penal Law § 175.35 [1]) and ordering
him to pay restitution in the amount of $675,984. Defendant’s
conviction stems from allegations of fraudulent Medicaid billing
relating to his operation of a substance abuse and methadone treatment
facility. Specifically, defendant charged certain clients for
counseling services in such a way that the services could be billed at
a higher rate.

     We reject defendant’s contention that County Court’s failure to
charge the jury on mistake of law deprived him of a fair trial. The
mistake of law defense set forth in Penal Law § 15.20 (2) (a) relieves
a person of criminal liability if he or she engaged in such conduct in
reliance upon an official statement of the law contained in a statute
or other enactment. Defendant contends that evidence demonstrating
his good faith misunderstanding of complex billing regulations
warranted a mistake of law charge. In People v Marrero (69 NY2d 382,
387), the Court of Appeals noted that the mistake of law defense “was
intended to be a very narrow escape valve,” and that it applies only
where “an individual demonstrates an effort to learn what the law is,
relies on the validity of that law and, later, it is determined that
there was a mistake in the law itself” (id. at 390). That is not the
case here. In any event, we note that the court properly instructed
                                 -2-                           713
                                                         KA 10-00358

the jury on the issue of specific intent, thereby allowing the jury to
consider whether defendant’s good-faith belief that his billing
practice was legal prevented him from forming a specific intent to
defraud.

     Defendant further failed to demonstrate that he relied on an
official statement. Contrary to defendant’s contention, we conclude
that Penal Law § 15.20 (2) (d) does not apply in this case. Penal Law
§ 15.20 (2) (d) relieves a person of criminal liability if he or she
engaged in such conduct in reliance upon “an interpretation of the
statute or law relating to the offense, officially made or issued by a
public servant, agency or body legally charged or empowered with the
responsibility or privilege of administering, enforcing or
interpreting such statute or law.” No government official issued a
statement authorizing the conduct in question and, indeed, defendant
was warned by governmental officials that his conduct was improper
(see id.; see also Marrero, 69 NY2d at 385-386).

     We further conclude that the court did not err in denying
defendant’s request for a circumstantial evidence charge inasmuch as
the People presented both direct and circumstantial evidence (see
People v Smith, 90 AD3d 1565, 1566, lv denied 18 NY3d 998; People v
Stanford, 87 AD3d 1367, 1369, lv denied 18 NY3d 886). Contrary to
defendant’s contention, the fact that the element of intent was
established solely through circumstantial evidence did not require the
court to give a circumstantial evidence charge (see People v Saxton,
75 AD3d 755, 758, lv denied 15 NY3d 924).

     We reject defendant’s contention that the verdict is against the
weight of the evidence with respect to his intent to defraud (see
Penal Law § 175.35). Viewing the evidence in light of the elements of
the crime as charged to the jury (see People v Danielson, 9 NY3d 342,
349), we conclude that the verdict is not against the weight of the
evidence (see generally People v Bleakley, 69 NY2d 490, 495).

     As defendant correctly concedes, by failing to object to the
prosecutor’s remarks on summation, defendant failed to preserve for
our review his contention that prosecutorial misconduct denied him a
fair trial (see People v Johnson, 121 AD3d 1578, 1579; People v King,
53 AD3d 1105, 1105, lv denied 11 NY3d 790). We decline to exercise
our power to review that contention as a matter of discretion in the
interest of justice (see CPL 470.15 [6] [a]).

     We agree with defendant, however, that the People failed to meet
their burden of establishing the amount of restitution to be paid by
defendant. At the restitution hearing held pursuant to Penal Law §
60.27 (2), the People had the burden of proving “the amount of
defendant’s gain from the commission of the offense[s] . . . based
upon a preponderance of the evidence” (CPL 400.30 [4]; see People v
Consalvo, 89 NY2d 140, 145). An auditor for the Attorney General
testified at the hearing that, based on her review of the records of
52 clients, defendant owed restitution in the amount of $675,984.
Those client records, however, were not admitted in evidence at the
restitution hearing. Moreover, the People did not seek to incorporate
                                 -3-                           713
                                                         KA 10-00358

any of the trial testimony to support the restitution claim, nor did
they offer any evidence other than the auditor’s testimony and two
spreadsheets summarizing her findings based on the client records.
Without the admission in evidence of the client records, the auditor’s
testimony regarding defendant’s gain was conclusory and lacked a
proper evidentiary basis (see People v Wilson, 59 AD3d 807, 808-809;
see also People v Pugliese, 113 AD3d 1112, 1113, lv denied 23 NY3d
1066). We therefore modify the order by vacating the amount of
restitution ordered. In view of our determination, we do not address
defendant’s remaining contentions regarding restitution.




Entered:   July 10, 2015                        Frances E. Cafarell
                                                Clerk of the Court
