COUNTY STATE OF NEW YORK
COUNTY OF ROCKLAND

THE PEOPLE OF THE STATE OF NEW YORK
?against~ DECISION ORDER
WALTER BOOKER, Ind. NO.: 2016-186

Defendant.

Defendant stands accused under Indictment No. 2016?186 of
three counts of (Srand ILarceny the 'Ihird. Degree (Penal Law
three counts of Falsifying Business Records in the
First Degree (Penal Law ?l75.10), three counts of Issuing a False
Certificate (Penal Law ?l75.40) and. three counts of Official
Misconduct (two counts of Penal Law ?l95.00[l] and one count of
Penal Law As set forth in the Indictment, it is
alleged that, on or about and between January 1 and June 1, 2012;
January 1. and June 1? 2013, and January 1. and June 34 2014,
Defendant, in Rockland County, New York, individually and acting in
concert with another, stole property from another, namely the Town
of Ramapo, valued in excess of $3,000.00. It is also alleged in
the Indictment that, on or about May 22, 2012; May 14, 2013, and
May 22, 2014, Defendant, in Rockland County, New York, with intent
to defraud and commit another crime, and conceal the commission
thereof, as a public servant, caused false entries to be made in
the business record of an enterprise, namely the Town of Ramapo, by

issuing a false Certificate of Occupancy. It is further alleged in

the Indictment that, on or about May 22, 2012, and on or about and
between May 20 and May 22, 2013, with intent to benefit and deprive
another of a benefit, as a public servant, he knowingly committed
unauthorized exercise of his official functions, and that on or
about and between September 23, 2011 and May 22, 2012, with intent
to benefit and deprive another of ?3 benefit, and conceal the
commission thereof, as a public servant, he knowingly refrained
from a duty imposed upon him by law and which is inherent in the
nature of the office.

By Notice of Motion dated July 29, 2016, with accompanying
Affirmation, Defendant moves for omnibus relief. In response, the
People have submitted an Affirmation in Opposition dated August 9,
2016. On November 7 and 10, 2016, the court sent letters to both
counsel, pursuant to People Coleman, 131 705 (2m Dept 2015),
which inquired, in the context of Defendant?s Motion to Inspect and
Dismiss, inter alia, as to the viability of a larceny charge under
the facts presented hereinJ On November 28, 2016, the People
submitted a vmitten response to the ?Txdeman letters? and, on
December 2, 2016, Defendant submitted a reply thereto

The motion is disposed of as follows:

MOTION TO INSPECT THE GRAND JURY MINUTES
AND TO DISMISS REDUCE THE INDICTMENT

Defendant moves pursuant to CPL and to
dismiss the indictment, or counts thereof, on the grounds that the

evidence before the Grand Jury was legally insufficient and that

the Grand Jury proceeding was defective within the meaning of CPL
?210.35. On consent of the People, the Court has reviewed the
minutes of the proceedings before the Grand Jury.

Pursuant to CPL an indictment must be supported by
legally sufficient evidence which establishes that the defendant
committed the offenses charged. Legally sufficient evidence is
competent evidence which, if accepted as true, would establish each
and every element of the offense charged and. the defendant's
commission thereof (CPL People Jennings, 69 lO3
[1986]). ?In the context of a grand jury proceeding, legal
sufficiency means prima facie proof of the crimes charged, not
proof beyond a reasonable doubt.? People Belle, 92 523
(1998); People Ackies, 79 1050 (2m1 Dept 2010). In rendering
a determination, ?[tJhe reviewing court?s inquiry is limited to
whether the facts, if proven, and the inferences that logically
flow from those facts supply proof of each element of the charged
crimes and whether the grand jury could rationally have drawn the
inference of guilt.? Bello, supra, quoting People Boampong, 57
794 Dept 2008-? internal quotations omitted).

As the People commendably concede, the three counts of Grand
Larceny in the Third Degree cannot stand given the instant facts as
alleged and presented to the Grand Jury. Therefore, those counts
must km: dismissed. See People ll Nappo, SW4 564 
reduction in taxes owed by a taxpayer is not ?property? and thus

may not be the subject of a larceny charge. By the People so

conceding, Defendant argues that the remaining counts??Falsifying
Business Records in the First Degree, Issuing a False Certificate,
and Official Misconduct are also undermined.

Penal Law ?175.10, Falsifying Business Records in the First
Degree, provides:

175.10. Falsifying business records in the first

degree

A person is guilty of falsifying business records in

the first degree when he commits the crime of

falsifying business records in the second degree, and

when his intent to defraud includes an intent to commit

another crime or to aid or conceal the commission

thereof.

Falsifying Business Records in the Second Degree, provides:

175.05. Falsifying business records in the second

degree

A person is guilty of falsifying business records in

the second degree when, with intent to defraud, he:

1. Makes or causes a false entry in the business

records of an enterprise; or

2. Alters, erases, obliterates, deletes, removes or

destroys a true entry in the business records of an

enterprise; or

3. Omits to make a true entry in the business records

of an enterprise in violation of a duty to do so which

he knows to be imposed upon him by law or by the nature
of his position; or

4. Prevents the making of a true entry or causes the
omission thereof in the business records of an
enterprise.

Penal Law ?175.40, Issuing a False Certificate, provides:
175.40. Issuing a false certificate:

A person is guilty of issuing a false certificate when,
being a public servant authorized by law to make or
issue official certificates or other official written
instruments, and with intent to defraud, deceive or
injure another person, he issues such an instrument, or
makes the same with intent that it be issued, knowing
that it contains a false statement or false
information.

Penal Law ?l95.00, Official Misconduct, provides:

195.00. Official misconduct

A public servant is guilty of official misconduct when,
with intent to obtain a benefit or deprive another
person of a benefit:

1. He commits an act relating to his office but
constituting an unauthorized exercise of his official
functions, knowing that such act is unauthorized; or

2. He knowingly refrains from performing a duty which

is imposed upon him by law or is clearly inherent in

the nature of his office.

As Defendant properly argues, and the People do not contest,
the prosecutor asserted. before the Grand. Jury that the crime
Defendant intended to be commit, aid, or conceal by Defendant by
making false business records was Grand Larceny. Indeed, the legal
instruction given by the prosecutor to the Grand Jury with regard
to the Falsifying Business Records in the First Degree counts
specifically included ?Here, would be grand larceny in
the third Having made the Falsifying Business Records
in the First Degree counts contingent on the viability of the Grand
Larceny in the Third Degree counts, and having now conceded that
those Grand Larceny counts are legally impermissible, the
Falsifying Business Records in the First Degree counts must
(initially) be reduced to Falsifying Business Records in the Second
Degree, as that lesser included count does not require that the
object of Defendant?s intent to defraud be the commission of a
crime.

Defendant further argues, and the People do not contest, that
all of the counts were contingent on Defendant defrauding someone.
Since the People conced that, under the evidence presented to the
Grand Jury, a larceny is legally impossible, there is no larcenous
fraud upon which to base Falsifying Business Records in the Second
Degree (as the reduced lesser included offense of_ Falsifying
Business Records in the First Degree), Issuing a False Certificate

or Official Misconduct either. An analysis of the proof before the

Grand Jury shows that the only non?larcenous fraud alleged was the
wrongful acquisition, by allegedly false application, of a real
property tax exemption to which the co?defendant/property owner,
Jacob Goldman, was allegedly not entitled. This fraud was
_allegedly abetted by Defendant?s submission of a false Certificate
of Occupancy in support of the application. If, as set forth in
Nappo, sqpra, ea real. property' tax. exemption cannot constitute
property capable of being wrongfully acquired (and thus the subject
of a larceny), the court is hard?pressed to find that Defendant
could have had the intent to defraud to acquire by fraud)
some other property or thing of value from the Town of Ramapo.

The People cite to People v_Kase, 76 532, 537?38 (la Dept
1980), aff?d on opinion below, 53 989 (1981), which held that
it

is not necessary that the Government shall be subjected

to property or pecuniary loss by the fraud, but only that

its legitimate official action and. purpose shall be

defeated by misrepresentation, chicane or the

overreaching of those charged. with carrying out the

governmental are few responsibilities

of government more important than the obligation

faithfully' to carry out its own law. Whoever

intentionally files a false statement with ea public

office or public servant for the purpose of frustrating

the State's power to fulfill this responsibility,

violates the statute.
Thus, the People argue, the evidence before the Grand Jury was
sufficient to establish the mens rea element of intent to defraud
as set forth in the counts of Falsifying Business Records in the
Second Degree and Issuing a False Certificate,.

However, People Golb, 23 455, 465 (2014), makes clear,
111 the context (If Criminal Impersonation 111 the Second Degree
involving a private enterprise (where one impersonates another and
does an act in such assumed character with intent to obtain a
benefit or to injure or defraud another), that, while monetary harm
need not always be implicated, some harm, monetary or otherwise,
must be caused or intended by the act. Further, Kase itself gig
involve potential specific pecuniary loss to the State??the
document filed therein included a false purchase price to permit
tax evasion?as well as the resultant tax benefit to the defendant.
Thus, the false filing in Base not only directly served as the
basis for another crime, it was an implicit demonstration of intent
to defraud. There is no similar allegation of potential benefit to
Defendant in the instant matter.

Kase also relies for its reasoning solely on 

United States, 265 US 182, 188 (1924), which noted

To conspire to defraud the United States means
primarily to cheat the Government out of property or
money, but it also means to interfere with or obstruct

one of its lawful governmental functions by deceit,

craft or trickery, or at least by means that are
dishonest. It is not necessary that the Government
shall be subjected to property or pecuniary loss by the
fraud, but only that its legitimate official action and
purpose shall be defeated by misrepresentation, chicane

or the overreaching of those charged with carrying out

the governmental intention?

besides involving a federal, rather than a New
York State, definition of ?defraud?, involved acts committed to
cause a specific (albeit non?monetary) harm to the government??a
scheme to (?ssuade persons subject to the draft from properly
registering, which deprived the Government of persons eligible for
the draft during wartime. Despite the Court?s approval of a
reading of the statute to penalize non?monetary frauds, however,
they overturned the conviction there as not a ?fraud?. In any
event it is, frankly, questionable whether insofar
as it is argued to support the prosecution of non?monetary frauds,
was then, or is still, good law. Cleveland United States, 531 US
12, 19 (2000), Citing McNally United States, 483 US 350, 360
(1987), in construing the term ?defraud? in a statute (18 USC

?1341) similar to the statute at issue in stated

We explained in McNally that the 1909 amendment
"codified the holding of Durland,"id. at 357, and
"simply made it unmistakable that the statute reached

false promises and misrepresentations as to the future

as well as other frauds involving money or property,"
id. at 359. Rejecting the argument that "the money?or?
property requirement of the latter phrase does not
limit schemes to defraud to those aimed at causing
deprivation of money or property," id. at 358, we
concluded that the 1909 amendment signaled no intent by
Congress to "depart from [the] common understanding"
that "the words 'to defraud' commonly refer 'to

wronging one in his property rights?.

Tellingly, People Saporita, 132 713 (2mi Dept 1987),
appears to lu?ri directly contrary ix) Ease. There, 'the court
analyzed false filing charges against a police officer, in a case
in which the officer filed documents that falsified the manner in
which a traffic accident occurred. While the Court theorized that
the jury could have found that the false filings were made to
shield the defendant officer from proper disciplinary action, they
held that, even :tf so intended. by the officer, that did. not
constitute intent to defraud, since there was no evidence that any
person was deprived of any property or right as a result of his
actions. The court cited, in support of its holding, to then-ZCJI
PL 175.25, at 1203 [emphasis added], which defines ?defraud?
as cheat or deprive another person of property [or a thing

of value] [or a right].?

Several other notable cases, while purporting to follow Kase,

all nevertheless involve frauds whose object was actually either

financial deprivation, or some concrete injury t1) a person or
persons. People Taylor, 55 640 (2m Dept 2008), rev?d on
other grounds 14 727 (2010), on remand at 82 1016 (2mi
Dept 2011), like Ease, involved false filings for the purpose of
financial gain (to deceive the Office of Court Administration as to
the origin of client referrals in civil actions). Similarly, in
People Sengupta, 121 575 Dept 2014), a defendant both
sought to receive a benefit and to defraud a governmental entity by
a false filing. Her conviction was upheld because the proof
established that she intended to seek admission to the British bar'
and falsified her New York Bar file to enhance her British Bar
application. See also People Niver, 41 961 (3ml Dept 2007)??
evidence established that defendant falsified her workers?
compensation benefits to secure public assistance; People 
Stumbrice, 194 931 (3m Dept 1993)??intent to defraud
established frtmI defendant?s omission (If husband an; household
member on application for public assistance. Based upon the above
cases, the court holds that to establish, prima facie, Defendant?s
intent to defraud, the People must allege that his actions couild
have resulted in a benefit to him. Here, there is neither evidence
of some concrete or provable harm upon some party, nor do the
factual allegations herein suggest that Defendant could somehow
obtain any benefit. Thus, there was insufficient factual support
before the Grand Jury of a ?fraud? within the meaning of ?intent to

defraud.?

Beyond the issue of whether the term ?defraud? reaches the
Defendant?s alleged conduct here in furtherance of the Falsifying
Business Records in the Second Degree and Issuing a False
Certificate counts, there also is the issue of whether the People
presented any evidence to the Grand Jury of Defendant?s intent to
defraud. ?Intent to defraud? is, of course, an element of the
above?listed crimes chargedd Thus, to support an indictment, there
must be reasonable cause to believe that Defendant had that
requisite intent. Kase, supra, at 537. A review of the evidence
demonstrates that no such evidence was presented.to the Grand Jury.
Indeed, the only evidence presented to the panel regarding
Defendant?s intent was his own testimony. Under a waiver of
immunity, Defendant testified that the acts alleged to form the
basis of the false filings were done solely in order to correct a
mis?classification of co?defendant Goldman?s residence as a one?

family house.

Notably, before the date of the first such change (from one-
to two-family) by Defendant, the property had been, for some time,
classified as a two?family structure. The Deputy Building
Inspector, upon his own initiative, attendant to a property
inspection on other grounds, unilaterally decided to change the
classification to one?family. Defendant testified that co?
defendant Goldman, in a manner common to other property owners,
then requested that Defendant review the property history, reverse

the alleged mis-classification, and restore the classification as

it had previously existed. Defendant further testified.that he did
so. While it is certainly within the purview of the Grand Jury to
reject this explanation by Defendant for his actions, the fact is
that, even had they done so, there is simply no other evidence

before the Grand Jury to suggest an intent to defraud.

To the extent that, despite not having so charged the panel,
the People expected the Grand Jury to find that there was
circumstantial evidence of Defendant?s intent to defraud or that
they should presume that Defendant intended the natural and
probable consequences of his actions Expanded Charge on
Intent; Prince, Richardson?s on Evidence, ?4?504; People 
MOlineux, 168 NY 264 [1901]), there was no evidence presented to
the panel to suggest that Defendant knew anything about any of co-
defendant Goldman?s several applications for real property tax
exemptions. Here too, the only evidence presented by the People to
the panel on this subject was Defendant?s statement that he had no
such knowledge. And here too, while the Grand Jury was within its
rights, if it so chose, to reject Defendant?s testimony on this
subject, there was no other evidence beyond Defendant?s testimony

for the panel to rely on.

The People have thus failed to identify any specific harm from
the allegedly false filings, both because they could not charge a
larceny from the Town, but also because the evidence before the
Grand Jury does not establish any other concrete or identifiable

damage flowing from the allegedly false filings herein. They also

presented no evidence to the Grand Jury that Defendant intended to
defraud anyone by his actions. In the absence of proof before the
Grand Jury that Defendant intended any specific harm by his actions
or that Defendant possessed the intent to defraud the Town of
Ramapo, a reduction to Falsifying Business Records in the Second
Degree is also improper and thus the Falsifying Business Records in
the First Degree and Issuing a False Certificate counts must also

be dismissed.

With respect to Official Misconduct, the statute requires that
the defendant have acted with intent to obtain a benefit or deprive
another person of a benefit. While this mens rea element differs
from that of Falsifying Business Records in the Second Degree and
Issuing a False Certificate, the problem for the People is even
more apparent. First, there was no evidence before the Grand Jury
whatsoever that Defendant acquired any benefit from the actions
with which he is charged. Further, if, as held in Nappo, supra, a
real property tax exemption is not property and thus cannot be
wrongfully acquired, the court is constrained to find that the
exemption at issue herein is likewise not a benefit that can be
obtained for, or deprived from, another person, and that no harm
was caused by the Defendant?s acts. Golb, supra. Thus, these
counts, too, must fall. Accordingly, Defendant's motion to dismiss

or reduce all counts in the Indictment is granted.
Based upon the foregoing, it is hereby

ORDERED, that the instant Indictment is dismissed, with leave

to the People to re?present to another Grand Jury; and it is

further

ORDERED, that all other motions are denied as mooted by the

instant Decision and Order.

Dated: New City, New York
December 20, 2016

 

 

HON. THOMAS P. ZUGIBE

District Attorney, Rockland County
One South Main Street, Suite 500
New City, New York 10956

BY: Richard K. Moran, Esq.

Executive Assistant District Attorney

WILLIAM A. GERARD, ESQ.
Attorney for Defendant
71 Woods Road

PO Box 717

Palisades, NY 10964