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

962
KA 15-01774
PRESENT: SMITH, J.P., CARNI, LINDLEY, DEJOSEPH, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ROGER W. BARTO, DEFENDANT-APPELLANT.


MULDOON, GETZ & RESTON, ROCHESTER (GARY MULDOON OF COUNSEL), FOR
DEFENDANT-APPELLANT.

BARRY L. PORSCH, DISTRICT ATTORNEY, WATERLOO, FOR RESPONDENT.


     Appeal from a judgment of the Seneca County Court (Dennis F.
Bender, J.), rendered October 13, 2015. The judgment convicted
defendant, upon a jury verdict, of insurance fraud in the third
degree, falsifying business records in the first degree, defrauding
the government and falsely reporting an incident in the third degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed and the matter is remitted to Seneca County Court
for proceedings pursuant to CPL 460.50 (5).

     Memorandum: Defendant appeals from a judgment convicting him
following a jury trial of insurance fraud in the third degree (Penal
Law § 176.20), falsifying business records in the first degree
(§ 175.10), defrauding the government (§ 195.20), and falsely
reporting an incident in the third degree (§ 240.50 [3]). The charges
arose from allegations that defendant, while serving as an acting
Village Justice in Waterloo, falsely reported to the police that he
had been assaulted outside the courthouse after conducting an evening
arraignment. According to defendant, he had been approached from
behind by an unknown assailant and strangled with a ligature for
approximately 30 seconds before he was able to break free. The
assailant then struck defendant over the head with a hard object that
broke into pieces upon impact, causing defendant to fall to the ground
and lose consciousness. When he regained consciousness, defendant
called the police from his cell phone. The police arrived within
minutes to find defendant slumped on the ground outside the courthouse
door, leaning against a railing. Broken pieces of a porcelain toilet
tank lid were on the ground next to defendant. Although defendant had
no visible injuries, he was taken to the hospital, where he complained
of severe pain. While in the hospital, defendant underwent extensive
testing to determine the cause of his pain, but those tests—including
multiple CT scans, MRIs and X rays—showed nothing abnormal.
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                                                         KA 15-01774

     Upon defendant’s discharge from the hospital, he was charged by a
sealed indictment with falsely reporting an incident in the third
degree, defrauding the government, falsifying business records in the
first degree, and insurance fraud in the third degree, among other
offenses. Those charges were based on the People’s theory that
defendant lied to the police about being attacked so that he could
obtain prescription pain medication. The matter proceeded to trial,
where the jury rendered a guilty verdict on all submitted counts.
County Court sentenced defendant to six months in jail and five years
of probation. At sentencing, defendant paid restitution of $41,477.20
to Seneca County for the costs of his medical treatment.

     With respect to all counts, defendant contends generally that the
evidence is legally insufficient and that the verdict is against the
weight of the evidence because the People failed to prove beyond a
reasonable doubt that he lied to the police about being attacked. We
reject that contention. In our view, the medical evidence provides
compelling proof that defendant was not attacked as he had claimed,
and his varying accounts of the incident to the police further
undermined his credibility. As the People’s expert witnesses
testified, and as common sense dictates, a person who is struck over
the head with a porcelain toilet tank lid will sustain a discernible
injury, however minimal. Defendant, however, had no cuts or bruises
on his head, and extensive testing showed no internal injuries.
Moreover, although defendant claimed to have been strangled with a
ligature for approximately 30 seconds, there were no ligature marks on
his neck and no petechial hemorrhage, which, according to the People’s
expert, one would expect to see on a person who had been attacked in
that manner.

     Viewing the evidence in the light most favorable to the People
(see People v Contes, 60 NY2d 620, 621), and affording them the
benefit of every favorable inference (see People v Bleakley, 69 NY2d
490, 495), we conclude that there is a “valid line of reasoning and
permissible inferences which could lead a rational person to the
conclusion reached by the jury on the basis of the evidence at trial”
(id.), i.e., that defendant falsely reported to the police that he had
been attacked, which is the underlying factual basis of all of the
charges. 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
further conclude that the verdict is not against the weight of the
evidence (see generally Bleakley, 69 NY2d at 495). Even assuming,
arguendo, that a different verdict would not have been unreasonable,
“the jury was in the best position to assess the credibility of the
witnesses,” including defendant, who took the stand at trial, and it
cannot be said that the jury failed to give the evidence the weight it
should be accorded (People v Orta, 12 AD3d 1147, 1147, lv denied 4
NY3d 801; see People v Kalinowski, 118 AD3d 1434, 1436, lv denied 23
NY3d 1064).

     We also reject defendant’s more specific contention that the
evidence is legally insufficient to support the charge of falsifying
business records in the first degree. A person commits that crime
when, with the intent to defraud, he or she “[m]akes or causes a false
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                                                         KA 15-01774

entry in the business records of an enterprise” (Penal Law § 175.05
[1] [emphasis added]), and where the intent to defraud “includes an
intent to commit another crime or to aid or conceal the commission
thereof” (§ 175.10). Here, the false business record at issue is a
C-2 workers’ compensation form filed with Seneca County by an
administrator employed by the Village of Waterloo. As defendant
correctly contends, he did not file the form himself, and there is no
evidence that he asked anyone to file it on his behalf. Nevertheless,
we conclude that it was reasonably foreseeable that a workers’
compensation form would be filed on defendant’s behalf as a result of
his claim that he had been injured during the course of his employment
(see generally People v DaCosta, 6 NY3d 181, 184), and the evidence is
therefore sufficient to establish that defendant caused the false
filing. Indeed, we conclude that the jury could reasonably find that
the filing of the false workers’ compensation form was integral to
defendant’s intent to defraud.

     Defendant’s remaining sufficiency challenge relates to the charge
of falsely reporting an incident in the third degree, which is
committed when one knowingly and “[g]ratuitously” reports to the
police an “alleged occurrence of an offense or incident which did not
in fact occur” (Penal Law § 240.50 [3] [a]). Defendant contends that
he did not gratuitously report the assault because the police
officers, upon arriving at the courthouse, asked him what happened,
and he did not therefore volunteer any information. It is undisputed,
however, that defendant initiated the police contact by calling 911
and asking that an officer be sent right away to the courthouse, and
that, upon the officers’ arrival, defendant answered their inevitable
questions about what happened. Under the circumstances, we conclude
that defendant gratuitously offered the false information to the
police, albeit in two stages.

     Defendant further contends that his sentence should be reduced in
the interest of justice because of inappropriate statements made by
the prosecutor at sentencing. Although we find the prosecutor’s
statements to be highly improper, it does not appear that they
influenced the court, which denied the prosecutor’s request to impose
the maximum sentence of 2a to 7 years in prison and instead sentenced
defendant to shock probation. Based on our review of the entire
record, we perceive no reason to exercise our discretion to modify
that sentence in the interest of justice (see CPL 470.15 [6] [b]).

     We have reviewed defendant’s remaining contentions and conclude
that they lack merit.




Entered:   November 18, 2016                    Frances E. Cafarell
                                                Clerk of the Court
