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

841
KA 14-00517
PRESENT: WHALEN, P.J., CENTRA, NEMOYER, TROUTMAN, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

DEBORAH KLUSS, DEFENDANT-APPELLANT.


CARA A. WALDMAN, FAIRPORT, FOR DEFENDANT-APPELLANT.

VALERIE G. GARDNER, DISTRICT ATTORNEY, PENN YAN, FOR RESPONDENT.


     Appeal from a judgment of the Yates County Court (W. Patrick
Falvey, J.), rendered November 19, 2013. The judgment convicted
defendant, upon a jury verdict, of offering a false instrument for
filing in the first degree and welfare fraud in the fifth degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: Defendant appeals from a judgment convicting her,
upon a jury verdict, of offering a false instrument for filing in the
first degree (Penal Law former § 175.35) and welfare fraud in the
fifth degree (§ 158.05). Defendant was convicted of failing to report
her income from a part-time job on a recertification application for
food stamp benefits that she submitted to the Yates County Department
of Social Services (DSS).

     Defendant contends that she was denied effective assistance of
counsel because counsel failed to request an adverse inference
instruction based upon the destruction of one page of her
recertification application. We reject that contention. “A single
error may qualify as ineffective assistance, but only when the error
is sufficiently egregious and prejudicial as to compromise a
defendant’s right to a fair trial” (People v Caban, 5 NY3d 143, 152),
and that is not the case here. Although an “adverse inference charge
should be given where a defendant, using reasonable diligence, has
requested evidence reasonably likely to be material, and where that
evidence has been destroyed by agents of the State” (People v Handy,
20 NY3d 663, 669), in this case the DSS employee who destroyed the
document was not acting as an agent of the police or prosecution
within the meaning of Handy at the time she destroyed the document
(see generally People v Heise, 41 AD3d 1255, 1256, lv denied 9 NY3d
1006). Indeed, the record establishes that the document was destroyed
in accordance with the DSS employee’s normal practices approximately
six months before DSS learned that defendant had a part-time job and
                                 -2-                           841
                                                         KA 14-00517

commenced the investigation that culminated in the instant conviction.
In any event, even assuming, arguendo, that defendant was entitled to
an adverse inference charge and defense counsel erred in failing to
request that charge, we conclude that the error did not deprive
defendant of meaningful representation (see People v Blake, 24 NY3d
78, 81-82; see generally People v Baldi, 5 NY2d 137, 147).

     Contrary to defendant’s contention, the evidence is legally
sufficient to support the conviction (see generally People v Bleakley,
69 NY2d 490, 495). The People established that defendant began
working at her part-time job in October 2011 and knowingly failed to
list the income from that job on a recertification application that
she signed on November 19, 2011 with the intent to defraud DSS (see
People v Hure, 16 AD3d 774, 775, lv denied 4 NY3d 854; see generally
People v Oberlander, 60 AD3d 1288, 1291). Although defendant
testified that she told a DSS employee about the income from her part-
time job during a telephone call, and that she “most likely” listed
that income on the page of the application that was destroyed by a DSS
employee prior to trial, that DSS employee testified that she did not
receive such a telephone call from defendant, and that the missing
page of the application was destroyed because it contained no
information other than a request to change the time of a scheduled
appointment. Viewing the evidence in light of the elements of the
crimes 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 Bleakley, 69 NY2d at 495).




Entered:   October 7, 2016                      Frances E. Cafarell
                                                Clerk of the Court
