         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
129
KA 09-01818
PRESENT: SCUDDER, P.J., FAHEY, PERADOTTO, LINDLEY, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

SERRELL M. GAYTON, ALSO KNOWN AS JOHN DOE,
DEFENDANT-APPELLANT.


WILLIAM G. PIXLEY, ROCHESTER, FOR DEFENDANT-APPELLANT.

MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (LESLIE E. SWIFT OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County
(Dennis M. Kehoe, A.J.), rendered September 3, 2009. The judgment
convicted defendant, upon a jury verdict, of scheme to defraud in the
second degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously reversed on the law, the indictment is dismissed and the
matter is remitted to Supreme Court, Monroe County, for proceedings
pursuant to CPL 470.45.

     Memorandum: On appeal from a judgment convicting him, following
a jury trial, of scheme to defraud in the second degree (Penal Law §
190.60 [1]), defendant contends that the evidence is legally
insufficient to support the conviction (see generally People v
Bleakley, 69 NY2d 490, 495). We agree, and we therefore reverse the
judgment. This case arises out of an investigation conducted by the
Food and Drug Administration into allegations that BioMedical Tissue
Services (BTS), a human tissue procurement agency, was falsifying
documents and fabricating consent forms related to bone and tissue
removed from cadavers awaiting cremation. Defendant was a licensed
funeral director and the owner of a funeral home, and he entered into
an agreement with BTS whereby BTS would obtain consent from the next
of kin of the decedents and would provide defendant’s funeral home
with a “facility fee” for the recovery of bone and tissue. BTS
subsequently recovered tissue and/or bone from two decedents at
defendant’s funeral home without the consent of their next of kin.
Defendant received money from BTS in connection with those recoveries,
as well as money from the decedent’s next of kin for services rendered
by the funeral home.

     “A person is guilty of a scheme to defraud in the second degree
when he [or she] engages in a scheme constituting a systematic ongoing
                                 -2-                           129
                                                         KA 09-01818

course of conduct with intent to defraud more than one person or to
obtain property from more than one person by false or fraudulent
pretenses, representations or promises[] and so obtains property from
one or more of such persons” (Penal Law § 190.60 [1]). Defendant
contends that the money he received from BTS did not satisfy the
statutory requirement that property actually be obtained from at least
one of the persons sought to be defrauded and that such money did not
constitute the property of the next of kin. Defendant further
contends that there is no recognized property right in a dead body
(see generally Colavito v New York Organ Donor Network, Inc., 8 NY3d
43, 50-53). The People respond that defendant defrauded the next of
kin of their legal right to dispose of the decedents’ bodies and that
defendant was also financially rewarded for referring the decedents to
BTS without consent, thereby deceiving their next of kin. The People
contend that the fact that the money came from BTS does not render the
conviction legally insufficient. We agree with defendant. Although
the interest of next of kin in the bodies and body parts of their
decedents may deserve legal protection, such rights and interests do
not, under the current law, qualify as property (see generally
Colavito, 8 NY3d at 50-53). Viewing the evidence in the light most
favorable to the People (see People v Contes, 60 NY2d 620, 621), we
nevertheless conclude that the People failed to establish that
defendant obtained property from one of the persons sought to be
defrauded (see generally People v Mikuszewski, 73 NY2d 407, 413).
Thus, it cannot be said that “ ‘there is any valid line of reasoning
and permissible inferences [that] could lead a rational person to the
conclusion reached by the jury on the basis of the evidence at
trial’ ” (People v Cahill, 2 NY3d 14, 57, quoting Bleakley, 69 NY2d at
495).




Entered:   March 25, 2011                      Patricia L. Morgan
                                               Clerk of the Court
