COUNTY COURT OF THE STATE OF NEW YORK COUNTY OF ROCKLAND THE PEOPLE OF THE STATE OF NEW YORK - against - VILAIR FONVIL and JERMIKA DEPAS, Defendants. MEMORANDUM OF LAW Respectfully submitted: CHARLES E. HOLSTER HI, ESQ. Attorney for Defendant Vilaz'r anvil 666 Old Country Road,, Suite 600 Garden City, New York 11530 Tel. (516) 747-2330 Fax (516) 877-0476 E-mail: cholster@opton1ine.net at"! 1 (Bl Ag? 9" traygr?g J. 5* 3 133 Rockland County Indictment No. 2017-127 Preliminary Statement On June 28, 2016, a Resolution was passed by the Board of Trustees of the Village of Spring Valley which included a provision that the Village would enter into a contract with Defendant ermika Depas to act as Summer Programming Coordinator. (People?s green tab). It provided for the children of the Village, for the ?rst time, the option of attending a 6-week day camp at Ramapo; and it made provision for the children to be transported to the Ramapo Camp each day from the Civic Center in Spring Valley. The Agreement was signed on June 29, 2016. (People?s blue tab). The Agreement states that Ms. Depas? fee would be $10, 305; and that six ?monitors? would be hired at a cost of $13,920. (People?s blue tab; People?s For unrelated reasons, those funds were held back by the Mayor; and in an article 78 proceeding, Justice Eisenpress ordered the funds released. People?s black tab). Depas received the agreed upon sum of $24,225 on July 8, 2016, and deposited it into her account. (People?s By the time those funds were received, the Student Bus Company that Fonvil had previously arranged for stated that it was too late to hire them. (T587). Mr. Fonvil then hired another bus company, but the buses were ?lthy. (T.167, 172, 588, 602, 814). In addition, EMES closed early on Fridays, because they observed the sabbath, and that was a problem because on Fridays the children had trips planned from which they would be returning late in the day. (T.742). So, after just 4 days, an alternative plan was decided upon, whereby transportation would be provided using the Village Vans, to be driven by Depas, Fonvil, and one of monitors, Micane Mede. For the extra work of driving the vans, an additional $3,750 was requested from the Village, which they planned to use to pay Mr. Mede. On July 20, 2016, the Village paid Depas an additional $3,750 for ?transportation services.? (People?s tab 5). That check was also deposited into Depas? account. (People?s When the Programming Coordinator Agreement was made, it provided that Depas would supervise the transportation of 50 children from the Civic Center in Spring Valley to the Ramapo Camp (People?s blue tab, paragraphs and but, as it turned out, some of the children did not need transportation to the Camp; and, on any given day, only 30-40 children had to be transported and monitored during the round trip between the Civic Center and the Camp. (T.601- 603). So, they had more than 10 fewer children to monitor than the maximum of 50 that had been expected. Four monitors were hired by Depas (Micane Mede, Sabine Agnant, Lucius Street, and Christopher Poole), but after one week, Christopher Poole resigned to take a different position. (T552, 737). Depas acted as a fourth monitor/driver (T.603, 619, 737), in addition to attending to her administrative responsibilities; and Mr. Fonvil acted as a fifth monitor and bus driver, on a daily, volunteer basis. (GJ, 50; T.603). Thus, there was one (1) less monitor than the Agreement said Depas would hire. Having those ?ve (5) monitors more than met the goal that was stated in paragraph of the Agreement, of having ?1 monitor to 10 children.? The number ofpaid monitors, however, was three (3) fewer than the Agreement budgeted for; and, as a result, the Programming Coordinator?s operating costs were lower than had been projected. At trial, the prosecutor would contend that Depas an Fonvil had reduced the costs in order to create a ?surplus.? (T338, lines 15-20; People?s blue tab). Previously, the prosecutor had taken the position, in his August 17, 2017 opposition to the Defendants3 Omnibus motion, that the monies that Ms. Depas received from the Village continued to be ?Village of Spring Valley Funds,? even after they were deposited into Depas? account. It was asserted that those funds were ?stolen? when they were ?diverted? to Fonvil, pursuant to a ?scheme? whereby Depas issued checks to third parties, who cashed the checks, and gave all or part of the cash to Fonvil. (Motion Exhibit third unnumbered page). In the defense attorneys? August 24, 2017 joint Reply Af?rmation on the Omnibus motion, they argued that the funds in Ms. Depas? bank account belonged to her, not to the Village; and thus, she had every right to use the funds as she saw (Motion Exhibit In the prosecutor?s closing statement at the trial, he argued that the ?scheme? had involved three checks: two on July 27, 2016, and one on August 5, 2016. He argued that on July 27, 2016, Depas ?split? the ?surplus? funds with Fonvil; and that this was when ?the crime? was committed: There's now a surplus of $11,870 of Spring Valley funds in the account of errnika Depas. Is that a crime? No, not yet. And that's what I keep hearing. I hear defense counsel talking about well, they're making a big deal about the cash, the W?2s. Judge, the crime comes when Mr. anvil gets the money and Ms. Depas helps him do there.1 Because we can agree Ms. Depas is the only person with access to this account. He can't get it without her. 31? 51? So on July 27th, 20] 7 (sic), 2 Judge, this is a busy, busy day at the TD Bank in Nanuet, New York, for these defendants. This is where they split the money, Judge. (emphasis supplied) (T.830, line 17 - T.831, line 2; T.831, lines 17-20). Ms. Depas did not testify. Mr. Fonvil did testify, and he denied receiving any part of the check issued by Depas on August 5, 2016,0rkn0wing anything about it until it was disclosed in the course of this proceeding. He acknowledged receiving part of the proceeds of the two checks that were cashed on July 27, 2016, and provided an explanation for each of them. When this Court considers the explanations, it is respectfully requested that the Court keep in mind that Fonvil and Depas believed that funds belonged to Depas by that point, and so their was no reason why either of them would have expected that an explanation would late be required. They did not believe that in order for Ms. Depas to earn the amount received, it was required six monitors be hired. Mr. Fonvil had explained this in the Grand Jury: A: You kept saying six monitors. She has a contract for $24,225. That?s her contract. These numbers are not binding, it's just a calculation. Her contract is for 50 kids, 24,225. That's what it is. That?s what's binding to her, not the calculation. The word ?there? should be ?that.? This error was previously overlooked. 2 This date should be July 27, 2016. (GJ, 98-99). A: She had a contract for a certain amount, for an amount of money. She had it for 50 kids.That's what her understanding was. That?s what my understanding was. The computation is not she's not bound by the computation, she is bound by the fact that she had $24,000 to service 50 kids. (GJ, 104). As can be seen from People?s Exhibit ?3 Ms. Depas bank account was a savings account. Each time she issued a check, she purchased a bank check with the funds in the savings account. The ?rst bank check cashed on July 27, 2016 was payable to Mercedes Rodriguez, in the amount of $3,500. (People?s Trial Exhibit ?3 behind the ?rst blue page). Ms. Rodriguez had reached out to Mr. Fonvil to see if he could provide any ?nancial assistance, because she was several months behind in her rent, and an eviction proceeding had been brought against her. (T610-611). She asked for cash, because she had ?zeroed out? her account at te bank. (T612). Fonvil was also friends with Rodriguez? roommate, Marnie Bernstein, who worked for the Village in the Section 8 Of?ce. (T610). He was frequently in that of?ce because he was the liaison to the Section 8 Program. (T610). Rodriguez showed Fonvil the applications for ?nancial assistance that she had made to both DSS and Catholic Charities; and Fonvil believed that when that assistance came through, Rodriguez would be able to repay him. (T611). Just eight months earlier, Ms. Depas had been in the same position, and she had averted eviction only as a result of a $3,000 loan that was made to her by Mr. Fonvil, which she had as yet not repaid. (T612, 614). So, Fonvil asked Depas if she would be willing to write Rodriguez a check, and Depas wrote a check to Rodriguez for $3,500 . People?s after ?rst blue page). When the check was made out to Ms. Rodriguez on July 27, 2016, for the sum of $3,500, it was with the intention that she would receive that entire amount. However, before Mr. Fonvil met Ms. Mercedes at the Bank that day, he was told by her roommate Marnie Bernstein?s co- workers at the Section 8 of?ce that Marnie had decided to stop ?ghting the eviction and move back in with her mother. (T613) . In view of that information, it no longer made sense to loan Rodriguez the entire $3,500, which he might never be repaid. (T613-614). Instead, Fonvil decided to give Rodriguez $5 00 from the cashed check. (T614). He decided to apply the remaining $3,000 toward repayment of the loan that he had made to Depas. (T614). During Rodriguez? testimony, she corroborated the fact she was the one who had initiated contact with Fonvil, reaching out to him for help with her rent, so that she would not be evicted (T.191, 184, 193); that she had asked for cash because her account was overdrawn (T. 1 98-201); that he had helped her in another way on a prior occasion (T.192, 202); she had 3 children at the time and had just learned that she was pregnant. (T. 1 90, 194-195); that Marnie Bernstein was her roommate that there were pending requests for assistance from DSS and Catholic Charities, but her landlord had refused to ?ll out the W-9 form; that she received $500, which she offered to repay, but he told he would not accept it. (T187, 205); that the $500 was not a payment for cashing the check (T209). Marnie Bernstein also corroborated the fact that it was Rodriguez who had reached out to Fonvil for help with the rent which wad in arrears by about $3,000 or $4,000 and that she had told her co-workers in the Section 8 of?ce that she may not ?ght the eviction but instead look for another place to live (T224). Ms. Depas? cousin, Christian Poole, testi?ed that he observed Mr. Fonvil giving Ms. Depas money in December of 2015 or early January 2016, because she was behind with the rent. 561). He was staying with Jermika at that time, but still used his mother?s house as his mailing address, and sometimes stayed there also. (T562). The second bank from Ms. Depas on July 27, 2016 was payable to Micane Mede in the amount of $7,500. (People?s behind the second blue page). That check represented Mr. Mede?s compensation for his work as both a monitor and a driver forte entire 6-week program. (T607-608). It was Mr. Fonvil?s suggestion that Ms. Depas write that one check to Mr. Mede so that she would have it for tax purposes as proof of what she paid him during the program. (T.615). Up to that point in time, Mede was being paid in cash, by Mr. onvil because Ms. Depas had refused to pay Mede after he had refused to ?ll out the required tax documents. As of July 27, 2016, Fonvil had used $1,000 of his own funds to pay Mr. Mede?s weekly salary. (T607, 609). Accordingly, an understanding was reached between Fonvil and Depas that Fonvil would be reimbursed $1,000 out of Mr. Mede?s check. (T.607). Mr. Mede was to receive the remaining $6,500 from that cashed check. However, he asked Mr. Fonvil to hold $2,000 for him, which he would need back when he travels to Haiti at the end of August. (T.609). The very next day, however, Mede told Fonvil that he needed to have back $500. Fonvil only had in his possession at that time $460, which he gave to Mede. (T609, 617). After that, Fonvil was holding $1,540 for Mede. (T.609). While the prosecutor would argue that the foregoing explanations regarding the two checks cashed on July 27, 2016 are so convoluted as not to be believed, an equally reasonable inference could be drawn that ?you can?t make this stuff up.? In any event, as stated above, Fonvil and Depas believed at that time that the funds that Depas had been paid by the Village had been earned, and that the funds were hers to do with as she saw fit. As asserted in defense counsel?s August 24, 2017 joint Reply Af?rmation, Ms. Depas could not ?steal from herself.? (Motion Exhibit The Coordinator Agreement does not contain any provision that the contract amount must be held in trust or that it must be held in escrow for any period of time, or until some future event. The prosecutor cited no legal authority for the proposition that those funds, after being deposited in Depas? account, continued to belong to the Village. The Coordinator?s Agreement does not provide that if less monitors are fired, the funds that were not used for that purpose must be refunded to the Village. The Agreement is silent regarding such a situation. It does not state that it is a ?condition? of the contract that six monitors are hired. Nor does it state that Depas ?represents? to the Village that six monitors would be hired. No proof was presented that the Village has ever demanded that Depas and/or onvil refund any part of the money that Depas was paid to Depas pursuant to the Programming Coordinator contract, or that an accounting of the funds was requested by the Village. Nor has the Village ever attempted to achieve either of those objectives by bringing a civil lawsuit against Depas and/or against Fonvil. (T430). The Court may also recall that Trustee Grossman testi?ed that it had been his experience during his years as a Trustee that, so long as a contractor did the job they were hired for, the court usually sides with them, and that they usually get paid. (T474). By parity of reasoning, where as in this instance, the contractor did the job she was hired to do, and the contract amount was paid up front, the court may not have found any obligation that any of the payment be refunded. In any event, the Village never pursued such a remedy. The issue before this Court is not whether any mistakes were made, but whether any crime was committed in this case, to which the answer must be no. What has been lost sign of, moreover, is the fact that despite many obstacles, and their relative inexperience, Ms. Depas and Mr. Fonvil managed to make this new Ramapo Camp Program a success for the children of the Village (T.500-503, 536-539, 547-550), and this took a degree of dogged determination that could fairly be described as heroic. Mr. Fonvil served as afulZ-tz'me volunteer for the entire six week Program, in addition to all of the time he had spent beforehand. Point I. THE INDICTMENT SHOULD HAVE BEEN DISMISSED ON THE GROUND THAT THE PRESENTMENT TO THE GRAND JURY WAS DEFECTIVE In the Defendants? jointly ?led August 7, 2017 Omnibus Motion, it was requested that the Indictment be dismissed on the ground that the presentment to the grand jury was defective. (CPL 210.35). (Afm., p.10, 1112). A. Instructions to Grand Jury? A Grand Jury need not be instructed with the same precision required in charging a trial jury. (People Valles, 62 36 [1984]; People Cannon, 210 764 [3d Dept 1994]). However, the prosecutor must provide adequate guidance to permit the Grand Jury to carry out its function of intelligently determining whether a crime has been committed and if the elements of that crime have been established by legally suf?cient evidence. (People Valles, 62 at 38; People Wade, 260 946, 947 [3d Dept 1999]; People Mujahz'd, 45 1184 [3d Dept 2007]). 1. Defendant Fonvil was charged in the Indictment with Grand Larceny, 3rd degree (Count Three); Corrupting the Government, 3rd degree (Count One); Money Laundering, 4th degree (Count Five); and Receiving a Reward for Of?cial Misconduct (Count Six). (Exhibit The allegation underlying and connecting all of these charges is that Mr. Fonvil ?stole? from the Village of Spring Valley, New York. (T.l9, 29, 32, 39, 827-828). Thus, the legal theory upon which the People?s entire case depends is larceny. Therefore, if the prosecutor?s instructions to the Grand Jury regarding larceny were inadequate, each of Defendant Fonvil?s four convictions will have to be vacated, and the Indictment will have to be dismissed. As will be discussed in more detail below, the Indictment does not contain facts supporting each element of each of these charges; nor does the ?Bill of Particulars? (on page ?1 of the April 25, 2017 Voluntary Disclosure Form) (Exhibit or the ?Amended Bill Of Particulars? (a September 7 2017 letter from the prosecutor to defense counsel) (Exhibit The September 7, 2017 letter contained a chronological narrative, which provided additional details, but it did not mention any of the four Counts in the Indictment or it address each Count separately, but instead alleged facts pertaining to the Indictment as a whole. On or about and between June 1, 2016 and July 11, 2016, Vilair Fonvil, a public servant, caused a cheek in the amount of $24,225.00 to be issued by the Village of Spring Valley payable to ermika Depas. On or about July 27, 2016, ermika Depas caused an of?cial bank check in the amount of $3,500.00 to be issued to Mercedes Rodriguez. The bank account upon which the check was drawn was funded almost entirely with money transferred to Ms. Depas by the Village of Spring Valley. This check was then given to Vilair Fonvil, whom thereafter enlisted Mercedes Rodriguez to cash the check and give him $3,000.00. Mercedes Rodriguez did so. Vilair Fonvil told Mercedes Rodriguez to keep the remaining $500.00, which she did. On or about July 27, 2016, Jennika Depas caused an of?cial bank check in the amount of $7,5 00.00 to be issued to Mime Mede. The bank account upon which the check was drawn was funded almost entirely with money transferred to Ms. Depas by the Village of Spring Valley. This check was then given to Vilair Fonvil, whom thereafter enlisted Micane Mode to cash the check and give Vilair Fonvil the entire amount. Micane Mede did so. On or about and between July 11, 2016 and August 5, 2016, Vilair Fonvil, a public servant, caused a check in the amount of $3,750.00 to be issued by the Village of Spring Valley payable to ermika Depas. On or about August 5, 2016, ermika Depas caused an of?cial bank check in the amount of $5,700.00 to be issued to Lucius Street. The bank account upon which the check was drawn was funded almost entirely with money transferred to Ms. Depas by the Village of Spring Valley. Ms. Depas then enlisted Lucius Street to cash the check, which he did. Funds from this 10 transaction were thereafter given to Vilair Fonvil. Had each Count been addressed individually, it might have been more readily apparent that the facts alleged did not establish each of the requisite elements. In any event, because of the vagueness of the Bill of Particulars and the Amended Bill of Particulars, the Defendant?s suspicion that the prosecutor?s instructions to the Grand Jury were inadequate is based upon the questioning by the prosecutor during the Grand Jury presentment, and the questioning and arguments by the prosecutor during the trial. The apparent theory of the prosecution is that Village of Spring Valley Trustee Vilair Fonvil made a ?representation,? in a June 28, 2016 letter from himself to the Mayor (T.824-825) (People?s ?1 tab and in a proposed Summer Programming Coordinator Agreement, which he drafted (T.825-826) (People?s ?1 blue tab); that six (6) ?monitors? would be hired by the Coordinator, at a cost of $13,920 (T829, 838); but that only three (3) monitors were subsequently employed by Depas, at a substantially lower total cost, resulting in a ?surplus? of approximately $8,000 (T30, 36, 830), which was then ?stolen? by Fonvil and Depas (T.19, 32, 827-828); and that they attempted to conceal this fact by paying the monitors in cash, and having Ms. Depas issue a series of three checks payable to persons who did not actually receive the funds, or who only received part of the funds (T828) (People?s [8/5/16 $5,700 to L. Street]; Peopleis tab and People?s [7/27/ 16 $7,500 to M. Mede]; People?s tab and People?s [7/27/ 16 $7,500 to M. Rodriguez]). 3 Count Three of the Indictment is Grand Larceny, 3rd degree (Penal Law ?155.3 5), A Crime of Public Corruption (Penal Law 496.06). Under Penal Law 496.06, Grand Larceny, 3rd degree is one of the ?speci?ed offenses? which constitutes the crime of ?public corruption? if committed by a ?public servant,? or a person ?acting in concert wit a public servant. person steals property and commits larceny when, with intent to deprive another of property or to 3 For ease of reference on this motion, a blue page has been inserted immediately before each of these three checks in People?s Trial Exhibit 11 appropriate the same to himself or to a third person, he wrongfully takes, obtains or withholds such property from an owner thereof.? (Penal Law The de?nition of?property? in the statute includes money. (?15 5.00). The theories of how larceny can occur are speci?ed in 155.05, (People Foster, 73 596 [1989]). ?Those theories are imbedded in the de?nition of the statute? 3 terms ?wrongfully take, obtain, or withhold.? Penal Law In the present case, the People have not explicitly stated the theory of larceny that they are relying upon. However, it appears that the only theory that the could be relying upon is ?false promise? which involves a false representation as to what will be done in the future.4 (see People Norman, 85 609, 619 [1995]). The prosecutor argued at trial that Defendant Fonvil made a ?representation? as to what would be done in the future, that six (6) monitors would be hired by Depas; and that this was not done. However, that describes a broken promise, or an un?tlfilled promise - not a ?false promise.? Penal Law de?nes larceny ?by false promise,? as making a promise while having no intention to fulfill it: A person obtains property by false promise when, pursuant to a scheme to defraud, he obtains property of another by means of a representation, express or implied, that he or a third person will in the future engage in particular conduct, and when he does not intend to engage in such conduct or, as the case may be, does not believe that the third person intends to engage in such conduct. In any prosecution for larceny based upon a false promise, the defendant ?s intention or belief that the promise would not be performed may not be established by or inferred ?om the fact alone that such promise was not performed. Such a ?nding may be based only upon evidence establishing that the facts and circumstances of the case are wholly consistent with guilty intent or belief and wholly inconsistent with innocent intent or belief, and excluding to a moral certainty every hypothesis except that of the defendant? intention or belief that the promise would not be performed; (emphasis supplied) A historical perspective was provided by the Court of Appeals in People Norman, 4 Larceny by ?false pretenses? on the other hand, involves a false representation as to a past or present fact. (Norman, 85 at 619). 12 supra: It was not until 1965, when the present Penal Law was adopted, that this State recognized the making of a dishonest promise as a crime (Penal Law 15 5.05 see, Third Interim Rep, Temporary State Commn on Revision of Penal Law and Criminal Code, Feb. 1, 1964, at 25). Since that time, the statute de?ning the crime of larceny has criminalized both wrongful takings by "false promises" and wrongful takings by "false pretenses" (Penal Law ?'155.05 With regard to larceny by false pretenses, the Penal Law incorporates the historical elements that were applied at common law, a false material statement about a past or presently existing fact (Penal Law 155.05 see, People Churchill, supra). With regard to larceny by false promises, Penal Law 155.05 (2) provides that the crime occurs ?when, pursuant to a scheme to defraud, [a person] obtains property of another by means of a representation, express or implied, that he will in the future engage in particular conduct, and when he does not intend to engage in such conduct. Thus, as adopted in New York, the crime of larceny by false promise is limited to situations in which an individual has made a promise while harboring a present intention not to perform. (emphasis supplied) While the two crimes have considerable overlap (see, 2 ave Scott, op. cit., at 387), it is important not to lose sight of the distinction between them, particularly in light of the special burden of proof that the Legislature has imposed in prosecutions for larceny by false promise. Because of continuing concerns about the need to avoid prosecution for conduct constituting only civil breach of contract, the Legislature has speci?cally provided that the inference of guilty intent may not be drawn solely from the fact that the de?ndant?s promise was not performed (Penal Law 155 .05 see, People Churchill, supra; People 12 Ryan, 41 634, 640) (85 at 619). failure to perform promises of future acts is merely a breach of contract to be enforced by an action on the contract. A cause of action for fraud does not arise when the only fraud charged relates to a breach of Dairylea C00p., 50 108, 113 lv dismissed 38 918). In the present case, the prosecution did not allege in the indictment or the Bill of Particulars that Fonvil did not intend to hire six (6) monitors, or that he did not believe that 13 Depas intended to hire six (6) monitors. Nor was this established by the Grand Jury testimony (see Court Exhibit and People?s Exhibit or by the testimony at trial. The only witness who testi?ed with regard to this point was Mr. Fonvil. First, he testi?ed in the Grand Jury that it was only Ms. Depas who had the authority to hire monitors (GJ, 40, 50, 59), a position with which Trustee White concurred. He also testi?ed that he did not believe that the Agreement required Depas to hire six monitors; what it required was that she would service 50 children. (GJ, 70-71, 85, 92). Accordingly, the evidence presented to the jury did not establish each of the requisite elements of Grand Larceny, 3rd degree; and there is reason to believe that the instructions given to the Grand Jury regarding Count Three were defective. It is apparent from the prosecutor?s questions and arguments during the trial of this matter that the People?s theory that a larceny occurred in this case is based upon the following assumptions, for which the prosecution has shown no legal basis: (1) that after the contract amounts were paid to the Summer Programming Coordinator, ermika Depas, and deposited into her own bank account, the funds continued to belong to the Village of Spring Valley; (2) that ermika Depas was legally obligated to refund to the Village any funds that were not expended in meeting the costs of operating the program; and (3) that Vilair Fonvil had a duty, as a Village Trustee, and as the liaison to the Ramapo Summer Camp Program, to cause those funds to be refunded. Count One (Corrupting the Government, 3rd degree), only became effective on April 30, 2014. It has no legislative history. Nor was the Bill accompanied by a supporting memorandum when it was introduced by the Governor. The language of the statute includes some of the same terms that are in the larceny statute, including ?scheme,? ?defraud,? ?representation,? and ?wrongfully obtain.? The core elements of Corrupting the Government, 3rd degree are the same as the core elements of the crime of Scheme to De?aud, degree, 14 ?engages in a scheme constituting a systematic ongoing course of conduct with intent to defraud *by false or fraudulent pretenses, representatlon or promlses.? The differences between the two offenses are: (1) the victim of Scheme to De?aud is a ?person? (or ?persons?); Whereas, the victim of Corrupting the Government is ?the state, or any political subdivision or governmental instrumentality of the state,? and (2) Scheme to De?aud involves the wrongful acquisition of ?property;? whereas Corrupting the Government can involve the wrong?ll acquisition of ?property, actual services or other resources.? Scheme to De?aud has some of the same elements as Larceny by False Promise, ?scheme,? ?defraud,? ?representation,? and ?wrongfully obtain.? Count z've (Money Laundering, 4th degree), according to the prosecution?s apparent theory of the case, involves the Defendants? attempt to conceal their alleged theft of funds from the Village of Spring Valley. Count Six (Receiving a Reward for Of?cial Misconduct, 2d degree), is presumably based upon the argument in the prosecutor?s summation at trial, that, ?Villair Fonvil arranged for every last dime that was allocated for this project within his control to wind up in the account of ermika Depas. And in so doing, he violated his duty as a public servant.? (T345). However, no evidence was presented during the Grand Jury proceeding that it is a violation of a legislator?s duty to see that all ?mds allocated for a project reach the provider of the service with whom the Village has contracted. Moreover, such a theory, is inconsistent with the prosecutor? 5 other closing argument at trial that ?the crime? was not committed until weeks after Depas had already received payment from the Village, when the funds were ?diverted? to Fonvil. That was consistent with the argument that the prosecutor previously made in opposition to Defendants? Omnibus motion, that the conduct that gave rise to this prosecution occurred a?er the funds were obtained from the Village, when a portion of the funds was diverted to Depas and Fonvil. (Exhibit 15 In the Defendants? Omnibus motion, it was argued that: ?The People failed to present any legally suf?cient evidence of a "scheme constituting a systematic ongoing course of conduct with intent to defraud" the Village of Spring Valley. A review of Mr. onvil's Grand Jury transcript reveals that not one question asked, or testimony provided, suggests any scheme, plot or plan existed. There is no legally sufficient evidence that supports the allegation that a scheme existed prior to the passage of the resolution authorizing the hiring of Ms. Depas as the Camp Coordinator. Further, no legally suf?cient evidence or testimony was elicited by the People that proves the existence, prior to the execution of the contract, of a scheme, plot or plan to defraud theVillage of Spring Valley. In fact, Ms. Depas received the funds pursuant to the duly executed contract after an Order from Supreme Court Justice Sherri Eisenpress directed the Village Treasurer to release a $24,225 check to Ms. Depas.? (Exhibit The prosecutor responded as follows: ?With respect to defendant's motion to dismiss counts I and H, defendant's motion is without merit Defendant's argument presupposes a legal requirement that inexplicably places a burden upon the People to prove that an agreement existed prior to the passage of the resolution authorizing the disbursement of funds to defendant Depas. This is not an element of this charge that the People arerequired to prove. Further, the Grand Jury presentation is replete with evidence that the defendants engaged in a systematic ongoing course of conduct. Specifically, the evidence supported the conclusion that the defendants, on several occasions, caused bank checks to be issued in the names of third parties and thereafter cashed them, via these third parties, and retained the money. On at least two of those occasions the money was thereafter given to defendant Fonvil. The evidence further established that Mr.Fonvil procured the contract for defendant Depas and was instrumental in causing Village of Spring Valley Funds to be delivered to her possession. These funds, the evidence before the Grand Jury established, were then diverted to Mr. Fonvil.? (Exhibit p3). Although the prosecutor mentioned that ?Fonvil procured the contract for defendant Depas, and was instrumental in causing Village of Spring Valley Funds delivered to her possession,? he did not state how those actions were in anyway wrongful, or how they demonstrated an intent to defraud. The offense of Corrupting the Government is not committed unless the perpetrator ?wrongfully obtains? property, actual services or other resources. (P.L. 16 496.03). The crux of the prosecutor?s response was that the wrongful course of conduct consisted of diverting the funds a?er the ?lnds were obtained. As was correctly argued in the Defendants? Reply Af?rmation, the actions taken after the funds were obtained could not retroactively make obtaining the funds wrongful: 3. The Defendants are unaware of a scenario where a scheme can be retroactively planned, this would amount to Nunc Pro Tune conspiracy. The People's argument that a conspiracy can exist after the execution of the subject camp coordinator contract is illogical. Notwithstanding the fallacy of the People's arguments, the naked assertion that the "Grand Jury presentation is replete with evidence? is insufficient to survive Defendants' motion. The Village of Spring Valley negotiated at arms?length with Ms. Depas, as a result a contract to provide camp coordination services was executed. The compensation under the terms of this contract ere ordered released by Judge Sheni Eisenpress. Accordingly, once the check was issued to Ms. Depas the lawful transaction was complete subject to her performance 1; Ms. Depas performed completely. 4. The attempt to criminalize the issuance of bank checks to third parties is misguided and misinterprets the standard set forth in CPL ?496.03. Ms. Depas was the rightful owner of the funds paid to her by the Village, therefore she was free to write/issue checks to any third party. Further, the checks were issued either to individuals she hired in order to perform the coordinator duties under her contract or to pay personal debts, all transactions were permissible. The Court must not lose sight of the fact that the money once deposited in her account belonged to Ms. Depas, it was not being held in trust for the Village. Ms. Depas cannot steal money from herself. (Exhibit W34). There was no factual allegation in the Indictment, the Bill of Particulars, or the Amended Bill of Particulars that the ?representations? that were allegedly made by Fonvil in June of 2016, as to how many monitors would be hired, were false, and that he knew they were false when he made them. Nor was any evidence of that adduced at trial. A larceny by ?false promise? cannot have been committed unless there was a false promise. Nor can a scheme to de?aud have been committed unless there was a scheme However, the prosecution, which had the burden of proof, has not provided any legal 17 authority to support any of these assumptions. The People have cited no statute, regulation, or case law which required any money to be refund under the facts of this case. If a legal obligation to re?ind unexpended funds existed, it could only have derived from the Camp Coordinator Agreement between the Village and co?defendant ermika Depas, to which the law of contracts applies. No legal authority has ever been cited by the prosecution for the proposition that, under the terms of that Agreement, Depas was contractually obligated to refund any money to the Village, much less that Defendant Fonvil, who was not a party to the Contract, was obligated to do so. In the prosecutor?s closing argument, he made the statement that he is not a contract attorney, and he conceded that he does not know if there is any civil liability. (T325). In so far as concerns Fonvil?s duty as a public of?cial, if Depas was not under any obligation to refund money to the Village, Fonvil did not violate any duty by not insisting that Depas do so. The Coordinator?s Contract Contained No Representations? In the Grand Jury, the prosecutor asked Fonvil if the Agreement ?represented? that six monitors would be hire; and he responded in the negative, stating that he did not think that ?computation? was binding. (GI, 79 In the People?s opening statement at trial, the argument was that ?Vilair Fonvil, the evidence will show, actually drew up the contract; wherein he represented that they would hire six bus monitors, totalling over $13,000, and that ermika Depas would get a little over $10,000.? (T33). The prosecutor concluded his direct examination of Trustee White with this question: Did he have the permission or authority of the board to hire less monitors than was represented in the contract? A: No. (emphasis supplied) (T64). 1 8 As was true of many of the prosecutor?s questions, the above question about Mr. Fonvil assumed facts not in evidence. First, it assumed that Fonvil had authority to hire monitors. He clearly did not. (GJ, 110). Second, the question assumed that the Coordinator?s Agreement (People?s under blue tab) contained a ?representation? as to the number of monitors that would be hired and the cost. It did not. (T435-436). This point was directly addressed during the testimony of attorney Dennis of the law ?rm of Feerick, MacCartney Nugent, who were Village Special Counsel in 2016. (T424-426, 430), and presumably still are. Mr. testi?ed that he has been practicing municipal law for over 30 years and that his regular duties for the Village of Spring Valley included reviewing contracts. (T424-428). He did not prepare or review the Coordinator Agreement in this case before it was signed in 2016; but he did review it prior to his testimony at trial. (T427-429, 434). stated the document was inartfully prepared and that it was not clear that it was actually a contract. (T428-429). He drew a distinction between what each party may have (subjectively) ?expected,? which he said he could not answer (T435, line 23 -T. 436, line 3; T436, lines 14-16, 19-22); what (objectively) appears from the Agreement to have been was ?anticipated? (T429, 432, 435? 436); and what was ?represented,? stating that ?there ?5 no representation in the contract. (T435, line14-15). With regard to the number of monitors to be hired and the cost that is stated in the Agreement, testified that that ?would seem that?s what anticipated by the parties? (T429, lines 22-23); ?that?s what would be anticipated by someone looking at the contract? (T432, lines 9-10); ?it was anticipated to be done That would be one interpretation? (T435, lines think an objective person would conclude there?s six monitors budgeted.? (T436, lines 17-19); but that ?s not clear ifthat is something that is a requirement or ifirs simply a computation. (T429, lines 19-21). ?Well again, there ?3 no representation in the 19 contract. If I may just say, its not an artfully drafted agreement. But usually if you make a representation, it says the nartes represent.? (emphasis supplied) (T.435, lines 14-17). Not content with this response, the prosecutor tried to get Special Counsel to change his testimony, by asking him a question that assumed a fact not in evidence that there was a ?representation? in the Agreement regarding ?monitors?). But, Mr. was not taken in: Q: And, Mr. based upon your experience, would that indicate to you that those the representation as to how many monitors was utilized when coming up with the contract price? A: Well, again, I don ?t think it?s a representation. (emphasis supplied). (T.435, line 25 - T.436, line 4). The subsequent cross-examination by Mr. Coe left no doubt as to the opinion of the Village Special Counsel that the statement in the Programming Coordinator Agreement as to the number of monitors that would be hired was not a ?representation,? and that accordingly, it was ?not binding?: Q. Just a few quick questions. You mentioned that the salary computations and the number of monitors on that contract looked as though that was anticipated by the parties? A. Correct. It's not a representation, but I think it's a fair reasonable rule that that was what was anticipated. Q. And you mentioned that the contract, in your opinion, it was inartfully drawn? A. Very inartfully. So, is it fair to say -- A. It's like asking your hair -- your barber who gave you the last haircut. And I get paid to draft contracts. Q. So, is it fair to say that it's not clear whether or not those calculations and number of monitors and things of that nature were binding on the parties? A. Well, the calculations are clear. The issue of the monitors is, again, not a representation. It?s what's anticipated. 20 Q. It's fair to say it's not clear whether or not that's binding or not? A. On the monitors being binding? Q. Sure. A. If it's not a representation, it would not be binding. (emphasis supplied) Notwithstanding Mr. unequivocal testimony that the Agreement did not contain a ?representation? concerning the number of monitors that would be hired, and the fact that no other witness had testified to the contrary, the prosecutor would ask Mr. Fonvil the following question which assumed that there was a ?representation? in the Agreement - a fact that was not in evidence: A: I was aware that she had a contract for $24,225. Q: You were aware that $13,920 of that was representative of what was to be paid to the six monitors, correct? A: That was my expectation. (emphasis supplied) (T684). In addition to the fact that the prosecutor implicitly rejected the testimony of the Village?s own Special Counsel regarding the Agreement, without articulating any legal basis for doing so, the prosecutor attempted, through his questions and closing statement, to cause this Court to View the ?representation? in the Agreement that Mr. Fonvil prepared, as being separate from, and in addition to, the ?representation? in the letter that Fonvil wrote to the Mayor, despite the fact that they were both apparently prepared and presented on the same date. Mr. Fonvil?s letter to the Mayor (People?s tab is dated June 28, 2016; and it refers to the vote that would take place that night. The proposed Summer Programming Coordinator Agreement was attached to the June 28, 2016 Resolution that was approved by the Board at the 7:00 P.M. Meeting on that date. People?s green tab). Q: And that resolution was passed based upon your representations as to the monitors and Ms. Depas? compensation, correct? 21 A: Based upon the calculation that I had just testi?ed to, yes. (emphasis supplied) Thereafter, in the People?s closing, the prosecutor would argue that, in Fonvil?s June 28, 2016 letter to the Mayor, ?he represented that they?ll be using six monitors at $13,920.? (T.824- 825). (emphasis supplied). ?But not only did he represent that, judge, the exact wording is to make the whole summer camp effort a success, this is what it?s going to take. Not this is what it might take.? (T.825). ?He then drafted the contract. And in the contract, six monitors, $13,920. Now, Judge, is that civilly binding? I?m not a civil lawyer and we?re not in a civil proceeding. What it is, Judge, is a village trustee representing to the board that six monitors will be hired for this endeavor. $13,920.? (T.825). ?This is not an estimate, your Honor. This is not an ?So, Judge, as you're already aware, it was represented that they would hire monitors, six of them, for $13,920. This is what it's going to take.? (T.829). represented that there would be six monitors.? (T.83 8). Clearly, the prosecutor acted as an unsworri witness on this critical point. It must be assumed that the prosecutor espoused that same erroneous position when he instructed the Grand Jury. It was evident from the questions that were asked of the witnesses by the individual Grand Jurors that they understood that the theory underlying the People?s case was that, Trustee Fonvil had projected that the Program Coordinator would need 6 monitors, but that there were actually only four (4), including the Coordinator herself (Mede, pp.46-47) (juror asking how many monitors there were altogether). Mede (and not counting Mr. Fonvil, a volunteer), as a result of which the costs were also lower, so that there was a ?surplus? (GJ, p.110 - juror asking Fonvil where is the ?missing? $8,000 right now). Thus, if there was no legal obligation to return such funds, the jury was misled, and the presentment was defective. The prosecutor asserted that ?[t]his case is not about a contract dispute.? (T.820, lines 17-18). However, if the prosecutor is implying that the term ?representation? has a different 22 meaning in criminal law than it does in civil law, he has provided no legal support for that position. As Mr. testi?ed, ?usually if you make a representation, it says the partes represent.? (emphasis supplied). (T.435, lines 14-17). This is because a ?representation? is a statement that both sides understand will be relied upon. See, Bitcnti v. 0 Healthcare Grp., LP, 37 Misc 3d 1223, 2012 NY. Slip Op. 52139 *8 (Sup. Ct., Suffolk County 2012). (?Contrary to the plaintiffs contentions in opposition, there are no speci?c allegations of fraud, as otherwise required by CPLR 3013, and there is no claim that there was a representation made as an inducement to entering into a contract (Ventur Group, LLC v. innerty, 68 638 [1st Dept 2009] See, Olympia Mtge. Corp. v. Certain Underwriters at Lloyd's, London, Select Ins. Co., 2009 NY Slip Op *12-13 [Sup Ct, Kings County 2009]: Insurance Law 3105 de?nes a representation as a "statement as to past or present fact, made to the insurer .. . at or before the making of the insurance contract as an inducement to the making thereof," and "a misrepresentation is a false representation, and the facts misrepresented are those facts which make the representation false." aterial misrepresentations if proven, would void the insurance policy ab initio" (Tyros 12 Mount Vernon Fire Ins. Co., 36 609, 610 [2d Dept 2007] [internal citation omitted]). Rescission is available even if the material misrepresentation was innocently or unintentionally made, and whether or not the insured intended to provide inaccurate statements or misrepresentations is irrelevant (see Curanovic New York Cent. Mitt. Fire Ins. Co., 307 435, 436 [3d Dept 2003]; Kulikowski Roslyn Sav. Bank, 121 603, 605 [2d Dept 1986], appeal dismissed 69 705 [1986], rearg denied 69 900 [1987]). ?Entire Understanding? The Coordinator?s Agreement in this case includes a paragraph indicating that the agreement represents the ?Entire Understanding? of the parties, which is a standard contract provision. Speci?cally, paragraph of the Agreement sates that it ?supersedes all prior agreements, understandings, or representations concerning the coordinating of the Summer Camp program, whether oral or written, by any party.? (See People?s blue tab, Agreement, 23 Thus, in addition to the fact that Mr. Fonvil was not a party to the Agreement; and that, in his view, he did not make any ?representations,? but merely stated his ?expectations?; any ?representation? that may have previously made by him or by Depas was ?superseded? by the written Agreement. That means that no previous ?representation? in a letter to the Mayor can be the basis for a legal obligation to refund money that was not so expended. Since any promises in the letter were superseded by the Agreement, and the Agreement contained no representations concerning the monitors, there was no breach of contract or violation or the penal statutes in question. a. Applicable Defense: Claim of Right A court reviewing grand jury minutes must ensure that a district attorney instructed the panel as to an appropriate defense that was ?complete and exculpatory" such that if a grand jury could have found the defense to be applicable, ?no indictment would have been returned and an unwarranted prosecution would have been avoided.? (People Cramp, 150 Misc 2d 566, 567 Ct, New York County 1992) quoting People Valles, 62 36, at 38-39 [1984]; People Fulkrod, 29 Misc 3d 1203 (A), 2010 NY Slip Op *2 [Co Ct, Yates County 2010]). With regard to the question of defenses, not every plea defense suggested by the evidence must be charged to the Grand Jury. Rather, whether a particular defense needs to be charged depends upon its potential for eliminating a needless or unfounded prosecution. (People Lancaster, 69 20, 27; People Valles, 62 36, 38; People Fulleod, In the present case, the legally erroneous premise underlying all of the charges in the Indictment is that the unexpended funds in Depas? account belonged to the Village of Spring Valley; and thus, she had no right to spend them. However, that was not what Depas or Fonvil believed. A. I'm going to say it one more time. She had a contract for a certain amount, for an amount of money . She had it for 50 kids. That's what her understanding was. That's what my understanding was. The computation is not she' not bound by the computation, she is bound by the fact that she had $24,000 to service 50 kids. 24 (GJ, 104). (See also, GJ, 79, 98-99) In People Zone, 14 488 [2010], the Court of Appeals considered the question as to the prOpriety of giving an instruction to a petit jury regarding a good faith claim of right to property accused of being removed. It found that this defense, contained within Penal Law ?155.15 is a defense, not an af?rrnative defense, and thus the People have the burden of disproving such defense beyond a reasonable doubt. (Penal Law ?25.00 It further held that "a defendant is entitled to an instruction as to any recognized defense for which there exists evidence suf?cient for a reasonable jury to ?nd in his favor? and a failure to do so constitutes reversible error. (People Zena, supra, at 492-493). The pattern jury instruction for claim of right defense contained in Penal Law ?155.15 reads as follows: It is a defense to the charge of larceny that the property was taken, withheld, or obtained under a claim of right made in good faith. In other words, a defendant who takes, withholds or obtains property of another, believing in good faith, though perhaps mistaken, that he or she has a right to possess the property superior to that of the other person, does not have the intent necessary to be guilty of larceny. The Court of Appeals has held that this is not an af?rmative defense but rather an ordinary defense. (People Chesler, 50 203 [1980]). In People Zena, 14 488 (2010), involving a petit larceny charge against a sheriffs deputy, the Court of Appeals concluded that a claim of right charge should have been given to the petit jury because of the statement of the defendant to an investigator that his supervisor, the undersheriff of Seneca County ?told us that he was taking a canoe home and he told us we could take what we want." Id, at 490. Similarly here, the Grand Jury had before it Fonvil?s statements indicating that he 5 In any prosecution for larceny committed by trespassory taking or embezzlement, it is an af?rmative defense that the property was appropriated under a claim of right made in good faith.? (Penal Law 25 believed that Depas had earned the full amount that she was paid, which impliedly meant that the funds in her account belonged to her and that she had every right to open them as she saw It follows that Fonvil did not think he was doing anything wrong by accepting a payment from Depas that drew upon those funds. In People Zona, supra, the Court held that subjective good faith, not reasonableness, is the test. (14 at 493). If Fonvil?s statement was believed, it would be a complete defense for him. Thus, if the claim of right charge had been given to the Grand Jury, and if the Grand Jury believed Fonvil?s statement, no indictment would have been returned against him. If, after re-inspecting the Grand Jury minutes, the Court finds that the prosecution failed to properly instruct the Grand Jury as to the "claim of righ defense, the Indictment must be dismissed. Larcenous intent is one of the elements of Grand Larceny. While the grand jurors were properly instructed as to the pattern jury instruction de?nition of larceny, they had no opportunity to consider the element of intent, given the potential good faith claim of right claim asserted by the Defendant Fountain. Without such instruction, they could not know that they had the ability to either credit Fountain?s version of events, thus negating the element of intent, or disregard his testimony. The District Attorney is the primary source of information as to the law. People Valles, supra; CPL 190.25 This is not a mitigating defense for which there is an element of discretion, (see, for example, People 12 Lancaster, supra at 994) but is, if believed, a complete defense. People 12 Graham, 2017 Slip Op 02175 March 24, 2017 [4th Dept]. The failure to give such instruction impaired the integrity of the Grand Jury proceeding. 210.35. The proceeding is, therefore, defective, requiring dismissal. 210,35 (5), People Valles, supra at 38-3 9. Nor is dismissal of only the Petit Larceny counts the appropriate remedy here. Because the prosecution's theory surrounding the other counts, centers around Fonvil?s alleged to use of his public of?ces in illegal ways to commit the crime of Grand Larceny, absent legally adequate proof of larceny, the other charges cannot stand. Therefore, this Court should dismiss all charges 26 against Fonvil with leave to represent any appropriate charges to another Grand Jury. (9). Point II THE PRESENTMENT WAS MISLEADING TO THE GRAND IU RY AND SEVERELY PREIUDICIAL TO THE DEFENDANTS 27 At the time of the Omnibus Motion, Defendant Fonvil was in possession of only his own Grand Jury testimony. (8/7/17 Afm., That testimony would be admitted at Trial as People?s Exhibit and deemed to be part of Fonvil?s trial testimony. (T3 77). In the Omnibus motion, the Defendants expressly reserved the right to make further applications based upon the revelation of any additional information. (Afm., Additional information was revealed to the defense at the start of the trial, upon their receipt of the Rosario material. (Court Exhibit 2,for identy?ication only). (A separately bound copy of Court Exhibit is submitted as part of the supporting papers for this motion). That material included the Grand Jury testimony of prosecution witnesses Emilia White, Micane Mede and Lucius Street. Based upon the manner in which the prosecutor had conducted his examination of Village Trustee Emilia White, both defense attorneys argued that the Grand Jury presentment had been defective and prejudicial. The purpose of a Grand Jury proceeding is solely to determine whether there is sufficient evidence to justify further criminal proceedings against the Defendant. (People Calbud, Inc., 49 389 [1980]). The present issue at Bar is whether the prosecutorial improprieties, alleged by the Defendant in the People's presentation of defendant's case to the Grand Jury, rendered the resultant indictment fatally defective. As a foundation, the Grand Jury performs the essential function of investigating criminal activity to determine whether suf?cient evidence exists to accuse a citizen of a crime. (See People Lancaster, 69 NY 2d 20 [1986]; See also People Calbud, Inc., 49 389. C. P. 190.25 designates both the District Attorney and the Court as legal advisors to the Grand Jury. Though Grand Jury proceedings are conducted by the prosecutor alone; thus, the function confers upon the prosecutor broad powers and duties, as well as a wide discretion in presenting the People's case. (See People Dt'Falco, 44 487 [1978]). As legal advisor to the Grand Jury, the prosecutor performs dual functions: that of public officer and that of advocate. The prosecutor is thus ?charged with the duty not only to secure indictments but also to see that 28 justice is done". (People 12 Lancaster, 69 26). With this potent authority, moreover, comes responsibility, including ?the prosecutor?s duty of fair dealing?. (People Pelchat, 62 104 [1 984]). It is well settled that the exceptional remedy of dismissal of an indictment pursuant to CPL 210.35 (5) is warranted only where prosecutorial wrongdoing, fraudulent conduct, or errors potentially prejudice the ultimate decision reached by a Grand Jury. CPL 210.35 (5) provides that a Grand Jury proceeding is defective when "the integrity thereof is impaired and prejudice to the defendant may result". The remedy of dismissal is thus warranted only where a defect in the indictment created a possibility of prejudice. (See People DiFalco, 44 487). Dismissal of indictments under CPL ?210.35 should be limited to those instances where prosecutorial wrongdoing, fraudulent conduct or errors potentially prejudice the ultimate decision reached by the Grand Jury. (People Huston, 88 400 [1996]). The likelihood of prejudice turns on the particular facts of each case, including the weight and nature of the admissible proof adduced to support the indictment and the degree of inappropriate prosecutorial in?uence or bias. Isolated instances of misconduct will not necessarily impair the integrity of the Grand Jury proceedings or lead to the possibility of prejudice. (People Huston, at 409). Certainly, not every improper comment, elicitation of inadmissable testimony, impermissible question or mere mistake renders an indictment defective. 1. Based Upon the Fact That Trustee Emilia White Was the Only Trustee Called to Testify Before the Grand Jury, As Well As The Manner In Which Her Testimony Was Presented, the Grand Was Undoubtedly Misled To Believe That Ms. White Spoke For The Government of the Village of Spring Valley Ms. White?s l7-page Grand Jury testimony is included in the separately bound copy of Court Exhibit that us submitted in support of this motion. (For ease of reference, blue pages were inserted to separate the testimony and notes of the three witnesses, which appear in the Exhibit in the following order: Micane Mede Mercedes Rodriguez/ Emilia White; except that the notes that come after the last blue page appear to pertain to witness Micane Mede, whose 29 testimony appears at the beginning of Court Exhibit It was misleading to the Grand Jury, and prejudicial to the Defendants, that Trustee Emilia White, who was obviously not a fan of Trustee Vilair Fonvil, appeared to be speaking for not only the entire 5 -member Board of Trustees, but for the entire government of the Village of Spring Valley. The Grand Jury undoubtedly got that impression, due to the fact that Ms. White was the only Trustee that the Grand Jury heard from; and the manner in which her testimony was presented by the prosecutor. First, the prosecutor used Ms. White to purportedly authenticate each of the documents that he wanted the Grand Jury to consider. The documents included a Spring Valley Board of Trustees? Resolution (GJ (the date of which is not mentioned) (GJ, 6-11, 19); ?vouchers? for the amounts of money for the summer camp (GJ, 15-16) (GJ Exh. a letter that was purportedly sent by Trustee Fonvil to the Mayor (GJ Exh. and a ?related party qustionaire? that onvil purportedly completed and ?led (GJ, 16-18). (These documents, with the exception of the ?ethics form? would be admitted at trial as part of People?s Exhibit The Resolution and the voucher could have been admitted as ?business records? pursuant to CPLR 4518 or CPL if the prosecutor had simply obtained certi?ed copies directly from the Village, without anyone having to come to Court. (Prince - Richardson on Evidence, 8-306, ed, 1995, p.604). In fact, it appears that the Village did certify at least one of the documents that was shown to the witness. In handing the Program Coordinator Agreement to Ms. White, the prosecutor mentioned that it ?has a raised seal from the Village of Spring Valley and its an original.? (GJ, p.9, 12-14). The Meetings of the Board of Trustees are attended by the Village Clerk and thus, the Village Clerk was the Village of?cial with the requisite authority and personal knowledge to authenticate any documents relating to the Board. The Village Treasurer was the Village of?cial with the requisite authority and personal knowledge to authenticate the vouchers. 30 Criminal Procedure Law 190.30 (Grand jury; rules of evidence), as amended in 2008, provides in paragraph ?1 that ?[e]xcept as otherwise provided in this section, the provisions of article sixty, governing rules of evidence and related matters with respect to criminal proceedings in general, are, where appropriate, applicable to grand jury proceedings.? Criminal Procedure Law 60.10 (Rules of evidence; in general), provides that [u]nless otherwise provided by statute or by judicially established rules of evidence applicable to criminal cases, the rules of evidence applicable to civil cases are, where appropriate, also applicable to criminal proceedings.? Assuming that Criminal Procedure Law l90.30(8) applies to the ?nancial records of municzpalz'ties, as well as to businesses, it provides for the admission of ?business records,? of ??nancial transactions? (which presumably includes the vouchers in this case), so long as they are accompanied by the requisite attestation: 8. A business record may be received in such grand jury proceedings as evidence of the following facts and similar facts stated therein: a: a a: a: :14 (ii) ?nancial transactions, and a person?s ownership or possessory interest in any account, at a bank, insurance company, brokerage, exchange or banking organization as de?ned in section two of the banking law. Any business record offered for consideration by a grand jury pursuant to paragraph of this subdivision must be accompanied by a written statement, under oath, that (1) contains a list or description of the records it accompanies, (ii) attests in substance that the person making the statement is a duly authorized custodian of the records or other employee or agent of the business who is familiar with such records, and attests in substance that such records were made in the regular course of business and that it was the regular course of such business to make such records at the time of the recorded act, transaction, occurrence or event, or within a reasonable time thereafter. Such written statement may also include a statement identifying the name and job description of the person making the statement, specifying the matters set forth in subparagraph (ii) of this paragraph and attesting that the business has made a diligent search and does not possess a particular record or records addressing a matter set forth in paragraph of this subdivision, and such statement may be received at grand jury proceedings as evidence of the fact that the business does not possess such record or records. When records of a business are accompanied by more than one sworn written statement of its employees or agents, such statements may be considered together in determining the admissibility of the records under this subdivision. For the purpose of this subdivision, the term ?business records" does not 31 include any records prepared by law enforcement agencies or prepared by any entity in anticipation of litigation. In addition, Criminal Procedure Law 190.3 provides that ?[n]othing in this subdivision shall affect the admissibility of business records in the grand jury on any basis other than that set forth in this subdivision.? That provision, read in conjunction with Criminal Procedure Law 60.10, also permitted the prosecutor to admit business records pursuant to Civil Practice Law and Rules 4518. That statute is not limited to records of ?nancial transactions, but it requires that the business records be authenticated in the manner speci?ed: Generally. Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event, shall be admissible in evidence in proof of that act, transaction, occurrence or event, if the judge ?nds that it was made in the regular course of any business and that it was the regular course of such business to make it, at the time of the act, transaction, occurrence or event, or within a reasonable time thereafter. An electronic record, as de?ned in section three hundred two of the state technology law used or stored as such a memorandum or record, shall be admissible in a tangible exhibit that is a true and accurate representation of such electronic record. The court may consider the method or manner by which the electronic record was stored, maintained or retrieved in determining whether the exhibit is a true and accurate representation of such electronic record. All other circumstances of the making of the memorandum or record, including lack of personal knowledge by the maker, may be proved to affect its weight, but they shall not affect its admissibility. The term business includes a business, profession, occupation and calling of every kind. ?3 =3 =13 9% Other records. All records, writings and other things referred to in sections 2306 and 2307 are admissible in evidence under this rule and are prima facie evidence of the facts contained, provided they bear a certification or authentication by the head of the hospital, laboratory, department or bureau of a municipal corporation or of the state, or by an employee delegated for that purpose or by a quali?ed physician. Where a hospital record is in the custody of a warehouse, or ?warehouseman? as that term is de?ned by paragraph of subdivision one of section 7-102 of the uniform commercial code pursuant to a plan approved in writing by the state commissioner of health, admissibility under this subdivision may be established by a certi?cation made by the manager of the warehouse that sets forth (I) the authority by which the record is held, including but not limited to a court order, order 32 of the commissioner, or order or resolution of the governing body or of?cial of the hospital, and (ii) that the record has been in the exclusive custody of such warehouse or warehousemen since its receipt from the hospital or, if another has had access to it, the name and address of such person and the date on which and the circumstances under which such access was had. Any warehouseman providing a certi?cation as required by this subdivision shall have no liability for acts or omissions relating thereto, except for intentional misconduct, and the warehouseman is authorized to assess and collect a reasonable charge for providing the certi?cation described by this subdivision. (emphasis supplied) (CPLR 4518 and The documents that were purportedly authenticated by Ms. White did not ?bear a certi?cation or authentication by the head of the department or bureau of a municipal corporation or of the state, or by an employee delegated for that purpose.? Accordingly, they were not properly admitted, and the Grand Jury was not permitted to consider them; and since they were not properly admitted, White?s testimony concerning same was also improper and it should not be considered. (GJ, 6?19) (14 pages of White?s 17-page testimony). It should also be noted that, while the Resolution and the voucher met the criteria of CPLR 4518(3), in that it was ?made as a memorandum or record of any act, transaction, occurrence or event? the approval of the measure as a result of the votes that were cast), that cannot be said of either the letter to the Mayor or the ethics form. Nor did the prosecutor introduce the letter or the ethics form as ?evidence of the facts contained? so as to meet the criteria in CPLR 4518(c). On the contrary, it would become evident at trial that the letter was offered because it stated that, in order to make the summer camp effort a success, it would take 6 monitors; but Depas did not subsequently hire that many. (People?s Trial Exhibit under tab At trial, it would be implied by the prosecutor?s questions that the ethics form that Mr. Fonvil completed (Grand Jury Exhibit - ?Related Party Questionnaire)) should have disclosed that he was owed money by Ms. Depas, but that it did not 33 6 but the ethics form itself was not admitted at trial, or even marked for identi?cation. Based upon all of the foregoing, not one of these documents was properly admitted during the testimony of witness Emilia White. Therefore, the Grand Jury was not permitted to consider any of them, or Ms. White? testimony about them. Consequently, only the ?rst three pages of her testimony may be considered. (GJ, 3-5). In so far as the Resolution and vouchers were concerned, those documents ?spoke for themselves,? and therefore, it was not necessary for Ms. White to explain them. The Resolution was objective, documentary evidence of the action taken by the Board, and the votes that were cast by each Member; and the vouchers provided objective, documentary evidence of the amounts paid for the summer program, etc. Yet, White was asked the following types questions: She was asked, for example, if Fonvil? proposal state how many monitors there would be (GT, 15). Q: And did the Village Board give Mr. Fonvil permission or authority to hire or direct to be hired less monitors than were supposed to be hired for this projectmember of the Village Board, was Mr. Fonvil permitted to be involved in the daily activities of the project to the point of paying the employees and things of that nature? A. Mr . Fonvil -- he actually said this is what in the resolution that was the understanding that he was in charge of everything that 's how he made his resolution votes for his own resolution. (GJ, 10) Ms. White appeared to be reading from these documents in answering most of the prosecutor?s questions; but intermingled with those factual responses were gratuitous comment, and her own skewed narrative of the surrounding circumstances. (GJ, 6-11, 19; 6 These questions of Ms. White were improper, because the questions assumed two facts which were not in evidence: (1) that Fonvil was owed money by Depas (there would be no testimony to that effect until Fonvil took the stand during the defense case) (T614, 616); and (2) that Fonvil was required to disclose the loan on the ?ethics form? (there would be no testimony to that effect until Special Counsel Dennis took the stand during the defense case). 34 Having Ms. White purport to authenticate all these documents, as though she of?cially represented the Village, and then proceed to read from them, and/0r answer questions about them, undoubtedly gave the Grand Jury the false impression that her unfavorable views of Mr. Fonvil were the views of the government of Spring Valley. The Grand Jury was not told that Ms. White was only one of five Trustees on the Board, and that her opinions are strictly her own. She was asked leading questions in the Grand Jury, and read from the documents, which gave the impression that she was fully knowledgeable of, and engaged in, the 2016 process of hiring the Summer Camp Coordinator; whereas, she would concede at trial that she did not actually read the documents, and had no knowledge of what the contract said, except that Depas would be the coordinator, she never asked Depas any questions, and she did not know what actually happened after the resolution was passed and the contract was signed. (T.76-78, 88, 104- The prosecutor, using a leading question, elicited from White that she had certain concerns about whether the staff who would be working with the children would be properly vetted. (GJ, 63-64, 88-89, 97-100). Those concerns might have some relevance if one of the charges in this case was Endangering the Welfare of a Child, but its not. Her alleged concerns no probative value whatsoever with regard to the larceny-related crimes that the grand jurors were to consider charging. But they very prejudicial, evoking a reaction against Fonvil from some of the grand jurors, which would be voiced when Fonvil testified. (T.89-91) . Meanwhile, the prosecutor did not introduce any Minutes of the Meetings regarding the Summer programming as documentation of the fact that White?s alleged concerns were ever actually expressed. Nor was White? alleged concern re?ected in a vote in opposition to the proposal. She had abstained from the vote, claiming only a lack of information. (T.76, 89.). White also took no action to see that her alleged concern was addressed - she apparently never spoke to Ms. Depas, even though Ms. Depas made herself available at the Board of Trustees Meetings. (T.88-89, 112). White admittedly never went to the Ramapo Camp or to the Civic 35 Center, to see how Depas was running the Program or how many monitor were hired, and did not know if it was run successfully. (T. 1 07, 111-112). 1. The prosecutor?s failure to disclose Ms. White?s interest in the outcome of this criminal case and her motives to lie - Ms. White already had plans to run against Mr. Fonvil in the 2017 Democratic primary for Mayor of Spring Valley, the formal announcement of which came six weeks later. If Fonvil were to be indicted, he would be eliminated from the race, which would obviously inure to the bene?t of Ms. White. Thus, White clearly had an interest in seeing Fonvil indicted; - White, for the two years preceding the indictment (2015-2017), had been a political opponent of Fonvil on the Village Board of Trustees (he headed the 3-Trustee majority); and she had been an ally of the Mayor, who headed the 2-member minority on the Board. In fact, in 2015, the Mayor had appointed Trustee White as his Deputy (presumably to ensure her support). (T.91, 94-95). Since then, she had voted in favor of the proposals by the Mayor, and she had voted in opposition to the proposals made by the other three Trustees (McGill, Grossman, and Fonvil). These factions not only differed in their ideas, the in?ghting was intense and bitter. This Court also heard testimony of vindictive actions taken by Mayor, which included withholding funds, ?ring employees, and rescinding appointments. In fact, by the time of the trial of this matter, White was no longer the Deputy Mayor - her appointment had been rescinded. (T5 9, 93). She had an incentive to Show her loyalty to the Mayor by testifying unfavorably about Fonvil. - Ms. White also appeared to have some resentment toward Mr. Fonvil, based upon the fact that, when she took of?ce, the Mayor assigned her to the area of youth and recreation but Mr. Fonvil continued to propose programs and events for the children, including, but not limited to the Ramapo Summer Camp Program for 2016. Rather than acknowledging that this ?friction? between them was a circumstance that the Grand Jury was entitled to take into consideration when assessing the credibility of White?s testimony, the prosecutor intentionally 36 elicited testimony from White which implied that Fonvil had usurped White? role, and that he had done so because he expected the approval of the proposal for the Summer Camp Coordinator to enrich him personally. If these circumstances had been disclosed to the Grand Jurors, they would have been able to make up their own minds as to the extent to which they had skewed White? testimony, and they could then determine how much weight to give to White?s testimony, ifany. There was good reason why jurors might have rejected her testimony in toto. But, because they were misled, and these circumstances were not disclosed, the Grand Jury had no opportunity to make that determination. This was severely prejudicial to the Defendants because Trustee White was the only Trustee that the Grand Jury heard from. Another undisclosed circumstance that could have provided a motive for White to lie about Fonvil was that White?s husband sat on the Board of Directors of the Martin Luther King Center, which had been receiving 100% of the funding for summer camp programming, and which was seeking a very large increase in such flmding; and that as a result of the proposal by Fonvil, to also fund the Ramapo Camp, the MLK did not receive the amount it requested, and it had to share the funding on an equal basis with the Ramapo Camp program. (T.89-90, 95-96). In a 2015 lawsuit brought by Fonvil about the MILK Center, he had named White as a defendant. (T.84). (It was brought as a means of obtaining funding for the Ramapo Camp, so the children would have a choice). (T.84). White would not concede that the MILK Center was in a bad neighborhood, where drugs and alcohol use had been observed. (T.7l-73) As defense counsel correctly argued to this Court at the time of trial, in renewing his motion to dismiss, the following questions that were asked of Ms. White at the Grand Jury presentment were patently improper: Q. Now did the Village Board give Vilair Fonvil permission or authority to in any way in?ate the contract number and, therefore, the amount of money going to ermika Depas for the purposes of running this program? A: Absolutely not. 37 Q: And did the Village Board give Mr. Fonvil permission or authority to take or misappropriate any funds that were designated for the purpose of this program A: No. (GI, 10). It cannot be seriously disputed that these questions were severely prejudicial to Mr. Fonvil. And as defense counsel pointed out, White was the ?rst witness. So it set the tenor for the rest of the presentment. There Was Also No Disclosure That Key Prosecution Witness Micane Made Had an Interest in the Outcome Of this Criminal Case and Had Several Motives to Lie MICANE Mede had motives to lie about Mr. Fonvil, which were both political and personal. These are matters that the Grand Jurors might have asked about if they had any inkling about them. They would be brought out during cross-examination of Mede at trial; but there might never have been a trial if such disclosures had been made to the Grand Jury. Common sense tells you that a person sitting on the grand jury would have wanted to know such things before they voted to indict Depas and Fonvil based upon Mede?s testimony. Although Mede would be only one of several witnesses to testify for the prosecution at trial, the Rosario material reveals that it was Mr. Mede who instigated the entire investigation. In a 3-page Informant? report, Mede tells police that he had Fonvil had a ?falling out.? That is about the only thing that he told police that is not in dispute. The fact that Mede and Fonvil were close and then had a ?falling out? was important for the Grand Jury to know, because Mede could have made his accusations out of hurt feelings or spite. Yet, the prosecutor did not have Mede mention the falling out just like he did not have Mede mention the fact that he had been ?red from the Camp bus driving job at Fonvil?s insistence. In the absence of any of this ?background? information, it undoubtedly appeared that Mede was motivated solely by a sense of civic duty. At the time of Mr. Mede?s testimony the 2016 Summer Camp was already over, and the 38 prosecutor undoubtedly knew that Mede had been ?red as a bus driver for the Program, at Mr. Fonvil?s insistence, as soon as it was learned that Mr. Mede had a suspended driver?s license. The fact that he had been picked up by the police for driving with a suspended license was memorialized in a letter from the Mayor on August 1, 2016. (People?s under tab Mede testi?ed about driving a bus for one month during the six week program; yet he was not asked about the circumstances under which such employment ended. The prosecutor was also undoubtedly aware that, once Mr. Mede had fallen from Mr. Fonvil?s good graces, he re-aligned himself with the Mayor, who was at that time running for reelection, and was being challenged by Mr. Fonvil in the Democratic Primary Election. Improper, Prejudicial and Misleading Questions Concerning Mr. Fonvil?s Residency It was the task of the Grand Jury in this case to decide whether there was suf?cient evidence to charge Mr. Fonvil with the crimes which subsequently became Counts l, 3, 5 and 6 in the Indictment. When the prosecutor cross-examined Mr. Fonvil, members of the Grand Jury undoubtedly expected that the questions would pertain to the crimes that the Defendant allegedly committed. However, the prosecutor?s ?rst line of questioning was about Mr. Fonvil?s residency (GJ, 48-50), although his residency in Spring Valley (or lack thereof) is not an element of any of those crimes. Speci?cally, the prosecutor?s questions suggested that Fonvil, who at the time of the Grand Jury presentment, still held the elective of?ce of Village Trustee, in the Village of Spring Valley, New York, actually resided in New Jersey. As will be discussed below, this avenue of inquiry was highly improper, for several many reasons. It was suf?ciently egregious, standing alone, to render the Grand Jury presentment defective. Pursuant to CPL 190.30, unless otherwise provided in that section, the provisions of article sixty governing the rules of evidence with respect to criminal proceedings in general, are, where appropriate, applicable to grand jury proceedings. (People Fire, 112 Misc 2d 45 [Sup Ct, Nassau County 1981]). 39 This line of questioning lacked any relevance to the alleged offenses, and it could only have served to distract the grand jurors from the lack of evidentiary support for those offenses. They were also improper because they involved an alleged prior bad act that required notice pursuant to Sandoval. Compare, People Montoya, 63 961 [2d Dept 2009] (improper to question defendant at trial as to whether he was a US. citizen and Whether he had evaded paying income taxes, which was a prior bad act that required notice pursuant to Sandoval). As the prosecutor elicited from Mr. Fonvil in front of the Grand Jury, residency is a legal requirement to hold the of?ce of village trustee. (Public Of?cers Law, ?3 The Public Officers Law does not provide that it would be a criminal offense to hold such of?ce if not a resident. There is no question, however, that it would be deceptive to do so. Moreover, there are related provisions of the Elections Law which do provide for penal sanctions. Before the general election in 2013, Mr. Fonvil had to run in a primary election. No person who is not resident of a village may participate in a primary election. (Election Law 6- When Mr. Fonvil was seeking the nomination of his Party to be a candidate for the office of trustee, he had to attest, on his designating petitions, to being a registered voter in the Village, both in his capacity as a candidate, and in his capacity as a witness to the signatures on the petitions. (Election Law 6?204 or ?15-108). Filing any false af?davit with the Board of Elections is a misdemeanor (Election Law 17-108 In order to register to vote in the Village, Mr. Fonvil had to attest that he was a resident of the State of New York and of the Village of Spring Valley. (Election Law The voter registration form requires the registrant to attest to his residency (Election Law 5-210[5] and on that form, there is an acknowledgment that procuring fraudulent documents in order to vote is a felony. (Election Law 5-210[5] A willful, material false statement in any application for registration and enrollment and/or transfer is a class felony. (Election Law It is also a felony to ?[p]rocur[e] fraudulent documents in order to vote.? (Election Law If Mr. Fonvil falsely stated his residence when he registered to vote, then each time that he voted thereafter, he 40 committed a crime. (Election Law 17-132 (?Illegal Voting?) [a felony]). The Public Officers Law incorporates by reference the de?nition of ?residence? in the Election Law ?l?104, which states that ?[t]he term residence shall be deemed to mean that place where a person maintains a ?xed, permanent and principal home and to which he, wherever temporarily located, always intends to return.? The application of these criteria by no means clear cut. (HosZey 1) Curry, supra, 85 447). It presents a mixed question of law and fact, to be decided by the Board of Elections upon consideration of the factors set forth in Election Law, 2. In determining a voter's quali?cation to register and vote, the board to which such application is made shall consider, in addition to the applicant's expressed intent, his conduct and all attendant surrounding circumstances relating thereto. The board taking such registration may consider the applicant?s ?nancial independence, business pursuits, employment, income sources, residence for income tax purposes, age, marital status, residence of parents, spouse and children, if any, leaseholds, sites of personal and real property owned by the applicant, motor vehicle and other personal property registration, and other such factors that it may reasonably deem necessary to determine the quali?cation of an applicant to vote in an election district within its jurisdiction. The decision of a board to which such application is made shall be presumptive evidence of a person's residence for voting purposes. There is a procedure under the Election Law whereby the eligibility of any individual to vote can be challenged; and if after investigation, it is determined that he is not a resident, his registration can be cancelled by the Board of Elections. (Election Law, 5- 702; The Board?s ruling can be challenged in an article 78 proceeding. (See, Hasley Curry, 85 447 [1995]). A party ?alleging a change in domicile has the burden to prove the change by clear and convincing evidence.? (id, at 451). The prosecutor did not Show that Mr. Fonvil?s residency within the Village has ever been challenged, much less challenged successfully. One question that the prosecutor asked was whether it wasn?t true that Mr. Fonvil was maintaining a connection to Spring Valley simply so that he could be a Trustee. (GJ, 50). 41 (T.648). That argument was also made in Hasley, and the inference drawn by the Court of Appeals was exactly the opposite of what was implied by the prosecutor in the case at bar: Indeed, even if petitioner is correct in asserting that respondent's motive is to maintain his connection with Hamilton County for political purposes, that fact would support rather than detract from his professed intention to retain his Hamilton County domicile (see, Matter of Newcomb, supra, at 251; Matter ofLarkin v. Herbert, supra, at 608). (85 452). Thus, the questions that the prosecutor propounded before the Grand Jury regarding the Defendant?s residency were not only irrelevant, and highly prejudicial, they also had no legal basis. (GJ, 50-51). The sole purpose of such questions was to denigrate Mr. Fonvil in the eyes of the grand jurors, so that they would be more inclined to indict him. The implication that Mr. Fonvil had attained public of?ce through an ongoing deception regarding his residence (GJ, 50) was severely prejudicial. Members of the Grand Jury may have reasonably believed that this apparently factual information was provided by the prosecutor as evidence of Mr. onvil?s dishonest propensities; and that those same propensities had led him to engage in acts of public corruption after he took of?ce. It cannot be said that there is no signi?cant probability that the outcome of the Grand Jury presentment in this case would have been different if not for these improper questions. 42 Point IT WAS ERROR TO ALLOW THE FATALLY DEFECTIVE FIRST COUNT OF THE INDICTMENT TO BE AMENDED BYADDING A REQUISITE ELEMENT THAT HAD INITIALLY BEEN OMITTED A. Corrupting the Government: An Untested Theory of Prosecution The accusatory portion of Count One of the Indictment states that Defendant Fonvil is charged with Corrupting the Government in the Third Degree. (Penal Law This is one of the crimes that was created by the 2014 ?Public Trust Act? (effective April 30, 2014), which added a new Title Y-2 to the Penal Law (Article 496), entitled "Corrupting the Government. It includes the crimes of "corrupting the government" in the fourth, third, second, and first degree (Penal Law 496.02, 496.03, 496.04, and 496.05, respectively), and "public corruption" (Penal Law 496.06). This attorney has not uncovered a single, reported case which even mentions the offense of ?Corrupting the Government.? I found two decisions which mention ?Public Corruption? (Penal Law 496.06) as being one of the charges, but it is not substantively discussed in either of them. (People Fountain, 2016 NY Slip Op 26432, 42 772, 775, 779 Ct, Rensselaer County 2016]; People Fountain, 2017 NY Slip Op 30674 (U) [Co Ct, Rensselaer County 2017]). When these Defendants were charged under Penal Law Article 496 in 2017, it was an untested theory of prosecution. The core elements of the crime of Corrupting the Government are the same as the core elements of the crime of Scheme to De?and (P.L. 190.60 [2d degree] and P.L. 190.65 [1st degree]), with two exceptions. The victim of Scheme to De?aud is a ?person? (or ?persons?), whereas, the victim of Corrupting the Government is ?the state, or any political subdivision or governmental instrumentality of the state;? and Scheme to Defraud involves the wrongful acquisition of ?property;? whereas Corrupting the Government can involve the wrongful acquisition of ?property, actual services or other resources.? The crime of Public Corruption is committed when ?a public servant through the use 43 of his or her public office? commits Larceny or Scheme to De?aud (P.L. and ?the owner of the property? that is stolen is ?the state, or any political subdivision thereof.? The ?De?nitions? section of the new Article 496 provides that ?[f]or the purposes of this article, ?scheme? means any plan, pattern, device, contrivance, or course of action.? (Penal Law 496.01). B. Count One of the Indictment Was Fatally Defective In That It Omitted The Requisite Element That The Value Exceeded $1.000 Count One of the Indictment purportedly charges Defendant FONVIL with the crime of Corrupting the Government in the hird Degree. That offense is de?ned by Penal Law 496.03 as follows: 496.03 Corrupting the government in the third degree. A person is guilty of corruptng the government in the third degree when, being a public servant, or acting in concert with a public servant, he or she engages in a scheme constituting a systematic ongoing course of conduct with intent to defraud the state or one or more political subdivisions of the state or one or more governmental instrumentalities within the state to obtain property, actual services or other resources, or obtain property, actual services or other resources from the state, or any political subdivision or governmental instrumentality of the state by false or fraudulent pretenses, representations or promises, and thereby wrongfully obtains such property, actual services or other resources with a value in excess of one thousand dollars. Corrupting the government in the third degree is a class felony. (emphasis supplied). Count One of the Indictment, however, omits the allegation that the wrongfully obtained property, actual services or other resources had ?a value in excess of one thousand dollars.? THE GRAND IU RY OF THE COUNTY OF ROCKLAND, by this indictment, accuses the defendant, VILAIR FONVIL, of the crime of CORRUPTING THE GOVERNMENT IN THE THIRD DEGREE (Sec. 496.03 Penal Law), committed as follows: The defendant, in the County of Rockland, in the State of New York, on or about and between the 1st day of June, 2016 and the 31st day of August, 2016, acting individually and in concert with another, being a public servant, engaged in a scheme 44 constituting a systematic course of conduct with intent to defraud the state and one or more political subdivisions of the state and one or more governmental instrumentalities within the state to obtain property, actual services, and other resources, and obtain property, actual services and other resources from the state, and any political subdivision and governmental instrumentality of the state by false or fraudulent pretenses, representations and promises, and thereby wrongfully obtained such property, actual services and other resources. (emphasis supplied). (Exhibit 7 ?An indictment must contain a factual allegation of every element of a crime charged (CPL (People Struts, 281 655, 656 [3d Dept 2001]). Since Count One did not include an allegation that the wrongfully obtained property, actual Services or other resources had ?a value in excess of one thousand dollars,? it was legally insuf?cient. There can be no doubt that it is a requisite element of the crime of Corrupting the Government in the Third Degree (P.L. 496.03) that the wrongfully obtained property, actual services or other resources has ?a value in excess of one thousand dollars,? because it is that allegation alone which distinguishes Corrupting the Government in the Third Degree (P.L. 496.03) from Corrupting the Government in the Fourth Degree (P.L. 496.02), which is set forth below:' ?496.02 Corrupting the government in the fourth degree. A person is guilty of corrupting the government in the fourth degree when, being a public servant, or acting in concert with a public servant, he or she engages in a scheme constituting a systematic ongoing course of conduct with intent to defraud the state or one or more political subdivisions of the state or one or more governmental instrumentalities within the state to obtain property, actual services or other resources, or obtain property, actual services or other resources from the state, or any political subdivision or governmental instrumentality of the state by false or fraudulent pretenses, representations or promises, and thereby wrongfully obtains such property, actual services or other resources. Corrupting the government in the fourth degree is a class felony. 7 The Motion Exhibits are designated in this manner (AA, BB, etc.) in order to distinguish them from Defendant?s Trial Exhibits. 45 Only the elements of Corrupting the Government in the ourtlz Degree were alleged in the factual part of Count One of the Indictment, while the accusatory part charged Defendant FONVIL with Corrupting the Government in the Third Degree. The omission of a requisite element from Count One was ?a fatal defect of the charging document.? (People Struts, supra, 281 at 656). C. The Court Was Without Authority to Permit Count One of the Indictment To Be Amended As the Court of Appeals observed in People Perez, 83 269, 276 [1994], the ?common law admitted no power to amend an indictment.? The ?narrow question? is whether the amendment was authorized by CPL 200.70, or whether the omission had to be cured by superseding indictment or re-presentment. (83 at 276). A re-presentment to the Grand Jury would undoubtedly consume additional prosecutorial resources in this case, and result in inconvenience to witnesses; but as the Court of Appeals made clear in Perez, those considerations are to play no part in the Court?s legal determination of whether a proposed amendment is permitted by the statute: The People note the waste of prosecutorial resources that will result from requiring a superseding indictment to bring a count which the records indicate the Grand Jury clearly intended. They also point to the added inconvenience to witnesses if the Grand Jury has disbanded and re?presentment is necessary. The obvious merit to those policy considerations must be addressed by the Legislature, however, not the courts (see, People Jackson, 153 Misc 2d 270, 276, supra [Donnino, The issue that this Court was called upon to decide was whether amendment was permissible under th (sic) governing statute. (Crim Proc 200.70). (83 at 276). As set forth above, the accusatory part of Count One of the Indictment charges Defendant FONVIL with the crime of Corrupting the Government in the Third Degree (P.L. 496.03), a requisite element of which is that the wrongfully obtained property, actual services or other resources ?has a value in excess of one thousand dollars.? In order to cure the fatal defect, the 46 People sought permission to add such an allegation at the start of the trial. (T. 1 Both Defendants opposed the application. (T.780). This Court granted permission to amend, reasoning that ?the theory of the case has not changed.? (T. 22). It is respectfully submitted, however, that the theory of the case did, in fact, change with the addition of such allegation. One of the cases cited by the Court of Appeals in People Perez, supra, 83 at 276, is, in some respects, a mirror image of the case at bar. (People Ercole, 308 NY 425 [1955]). The ?rst count of the indictment in Ercole alleged only the amount that was stolen and it was held to be error to allow the prosecution to add the allegation that the larceny had taken place by false representation. (308 NY at 428). In Perez, the Court of Appeals stated that ?in People Ercole (supra), we barred an additional allegation that the larceny had taken place by false representation, even though larceny had been charged and the alternative theory stated in the proposed amendment had been voted upon and ?led by the Grand Jury.? (83 at 274). Likewise, in the present case, where Count One alleged ?false or fraudulent pretenses, representations and promises,? the prosecution was barred from adding the allegation that what was wrongfully obtained has ?a value in excess of one thousand dollars,? even though that allegation had been included in the charge of Corrupting the Government in the Degree that had been voted upon and filed by the Grand Jury. Moreover, even if it ?did not change the theory? of Count One to add the allegation that the wrongfully obtained property, services or resources has ?a value in excess of one thousand dollars,? that ?is only one of the tests for what constitutes a permissible amendment under the terms of the statute.? (People Perez, 83 at 276). The other criteria in CPL 200.70[1] must also be satis?ed, that the amendment of the indictment merely relates to ?matters of form, time, place, names of persons and the like.? (People Struts, 281 655 [3d Dept 2001]). Those criteria were not met by the amendment to Count One in this case, because the change that was effected was clearly substantive in nature. Indeed, the allegation that the wrongfully obtained property, services, or resources, have a value in excess of $1,000, is what 47 distinguishes Corrupting the Government in the Third Degree (P.L. 496.03) from Corrupting the Government in the Fourth Degree. (P.L. 496.02). Furthermore, paragraph (2) of Section 200.70 of the Criminal Procedure Law expressly states that indictment may not be amended the purpose of curing Legal insuf?ciency of the factual allegations.? 2. An indictment may not be amended in any respect which changes the theory or theories of the prosecution as re?ected in the evidence before the grand jury which ?led it; nor may an indictment or superior court information be amended for the purpose of curing: A failure thereof to charge or state an offense; or Legal insu?iciency of the factual allegations; or A misjoinder of offenses; or A misj oinder of defendants. (emphasis supplied). There can be no dispute that the purpose of the prosecution?s amendment of Count One of the Indictment was to cure the legal insuf?ciency of the factual allegations. Due to the omission of the allegation of value in excess of $1,000, Count One was legally insuf?cient, as initially pled. Accordingly, the provisions of CPL 200.70(2) required that the amendment be denied. (Perez, 84 at 276-277; People Struts, 281 655 [3d Dept 2001]). Where, as in the present case, the purpose of the proposed amendment was to add a substantive factual allegation, in order to cure a ?critical omission in the indictment, denial of the amendment is required by both paragraph (1) and paragraph (2) of CPL 200.70: We are similarly unpersuaded by the People's argument that they should have been allowed to amend the indictment to include the fact that "the actor was not married to the victim" since such an amendment would be one of "form, time, place, names of persons and the like" as permitted by CPL 200.70 (1). In our view, such an amendment, even if properly requested before County Court in this case, would be barred by statute, since it would be "for the purpose of curing failure thereof to charge or state an offense" (CPL 200.70 see, People Bingham, supra). Thus, dismissal of both counts of the indictment was proper. (Struts, 281 at 656-657) 43 When this Court ruled that it would allow the amendment of Count One, it cited three cases in support of that decision. (People Shapiro, 227 506 [2d Dept 1996]; People Luna, 270 501 [2d Dept 2000]; People Peiierson, 103 811 [2d Dept 1984] (T22). Each of those cases is distinguishable from the case at bar. In People Shapiro, 227 506 [2d Dept 1996], it was held that ?[t]he pretrial amendment of the indictment to conform it to the evidence before the Grand Jury did not change the theory of the case, nor did it tend to prejudice the defendant on the merits (see, CPL 200.70; People Petterson, 103 811, 812; People 12 Murray, 92 617, 618).? (No facts are stated in the opinion). As discussed above, the amendment of Count One in the case at bar did ?change the theory of the ease.? People Luna, 270 501 [2d Dept 2000] is distinguishable for the same reason, it held (without stating any facts), that the amendments in that case did not change the theory of the case. (270 at 502). Luna is also distinguishable in that the amendments in that case were not made "for the purpose of curing failure thereof to charge or state an offense." (CPL 200.70 The Second Department expressly stated that ?[t]he original indictment, as well as the court's amendment of the indictment, were proper.? (emphasis supplied). (270 at 502). In the present case, unlike Luna, the original indictment was fatally defective, due to the omission of a requisite element, and the purpose of the amendment was to cure that defect. People Peiterson, 103 811 [2d Dept 1984] involved a prosecution under VTL 600[2]. Under that statute, if a motorist?s vehicle is involved in an incident that results in an injury to any person, he is required to report it, and not to leave the scene. In the Appellate Division?s opinion in Peiterson, it is stated no less than three times that it is not an element of VTL 600(2) that the driver must have been at fault in causing the accident. Thus, when that fact was clari?ed by an amendment to the indictment, which merely added the words ?or due to accident,? the theory of the case was not changed. It appears from the opinion in Petterson that those words (?or due to accident?) may have been in VTL 600(2) as it existed in 1984, and that 49 they had been inadvertently omitted from the indictment in that case, which (according to the opinion) tracked the language of the statute. However, it also appears from the opinion in Petterson that any such omission would not have been a fatal defect, since the motorist ?s culpability for the accident (or Zack thereo? had no bearing on the duty imposed by that statute. Thus, Petterson is distinguishable from the case at bar because the indictment in that case was not defective to begin with, and because the amendment changed the theory of the case. Since the amendment of Count One of the Indictment in th present case was not authorized by CPL 200.70, and that Count was fatally defective as it was originally pled, Defendant conviction under that Count cannot stand. The conviction must be vacated, and Count One must be dismissed. (Perez, 84 at 276-277). 50 Point IV. THE INDICTMENT SHOULD HAVE BEEN DISMISSED ON THE GROUND THAT THE EVIDENCE INTRODUCED TO THE GRAND JURY WAS LEGALLY INSUFFICIENT TO SUPPORT THE CHARGES In the third branch of Defendants? jointly ?led August 7, 2017 Omnibus Motion, they also demanded dismissal of the Indictment based upon the insuf?ciency of the evidence introduced to the grand jury (CPL 210.30) (Afm., p.2, 74). In deciding whether the evidence introduced before the Grand Jury is suf?cient to support charges, a Court must determine whether the People have made out a prima facie case that the Defendant committed the crimes charged. People Jennings, 69 103, 1 14-1 15. In the context of the Grand Jury proceeding, legally suf?cient means prima facie, not proof beyond a reasonable doubt. People 12 Mayo, 36 1002, 1004 (1975). In assessing whether the People presented a prima facie case, the Court inquires whether the evidence viewed in the light most favorable to the People, if unexplained and uncontradicted, would warrant conviction by a petit jury. People Jennings, supra at 114; People Woodmf? 4 770, 772 [4th Dept 2004]; People Smaragdas, 27 769 [2d Dept 2006]. A Court reviewing the Grand Jury presentation must limit its inquiry to the legal suf?ciency of the evidence and may not weigh the proof or examine its quality or adequacy. (People Galarto, 84 160, 164 [1994]). For the most part, the Indictment in this case merely tracks the language of the sections of the Penal law that pertain to each of the six Counts. (Exhibit (Four different crimes are alleged against each Defendant). However, the Indictment does provide dates, and those dates are very signi?cant in relation to the theory of the People?s case, which Defendant contends is fatally ?awed. It is alleged in the Indictment, with respect to every one of the six (6) Counts, that the crime was committed between June I, 2016 and August 2016. (See annexed Exhibits and That same three-month time frame was alleged in what was purported to be a ?Bill of Particulars? on the ?rst page of the People?s April 25, 2017 Voluntary Disclosure Form. (See 51 annexed Exhibit The only information that was added was a street address for each Count. After Defendant counsel submitted an August 24, 2016 Reply Af?rmation in further support of on the Omnibus motion (Motion Exhibit and Justice Zuckerman issued an August 28, 2017 Order denying dismissal (Motion Exhibit a September 7, 2017 letter was sent by the District Attorney?s Of?ce to defense counsel which set forth ?additional facts which the People intend to prove at the defendant?s (See annexed Defendant?s Motion Exhibit That letter stated that or about and between June 1, 2016 and July 31, 2016, Vilair Fonvil, a public servant, caused a check in the amount of $24,225.00 to be issued by the Village of Spring Valley payable to Jermika Depas.? It is implicit in the remaining paragraphs of the letter that Ms. Depas deposited the $24,225.00 check into her bank account, since they allege that she subsequently drew four checks against an account that ?was funded almost entirely with money transferred to Ms. Depas by the Village of spring Valley.? Speci?cally, the letter alleged that on July 11, 2016, Depas issued a check in the amount of $3,750.00; that on July 27, 2016, she issued checks in the amount of $3,500.00 and $7,500.00; and that on August 5, 2016, she issued a check in the amount of $5,700.00. The September 7, 2017 letter does not mention any of the six Counts in the Indictment, much less Show how each element of each Count is established by the facts alleged, as the law requires. It is respectfully submitted that it is shown to have Prior to the trial in this case, the Rosario material was received, which included the Grand Jury testimony of additional witnesses (Emilia White, Micane Mede, and Lucius Street). Both defense counsel renewed the motions to dismiss that were included in their Omnibus motion, asserting that even if given every favorable inference, the evidence presented to the Grand Jury did not in any way support the Indictment, including the requisite element of Count One, that the funds were ?wrongfully obtained? from the Even when the (undated) Indictment is considered in conjunction with the April 25, 2017 52 ?Bill of Particulars,? the ?Amended Bill of Particulars? the September 7, 2017 letter), and the evidence presented to the Grand Jury, it does not establish any of the Counts in the Indictment. A. The Evidence Adduced Before the Grand Jury Did Not Establish The Elements of Corrupting the Government In the Third Degree The crime of Corrupting the Government in the Third Degree is committed when property, services or resources having a value in excess of $1,000.00 are ?wrongfully obtain[ed]? from the government as a result of a fraudulent scheme. (P.L. 496.03). In this case, the sum of $24,225.00 was ?obtained? by Ms. Depas from the Village of Spring Valley on or about July 8, 2016 when she received a check from the Village for that amount dated July 1, 2016. (People 3 Exhibit ?1 blue tab). Whether it was ?obtained? wrongfully or rightfully at that time is a separate issue, which will be separately addressed. The point being made here is that Depas ?obtained? the $24,225.00 from the Village on that one date, in one check. It logically follows that, if there was a ?scheme? to defraud the Village, in order to ?obtain? those funds, the scheme had to have existed before the check was received. As the attorneys for both Defendant?s stated at pages 3-4 of the joint Af?rmation in support of their Omnibus Motion, the Grand Jury testimony of Mr. Fonvil, which was the only part of that presentment the Defendants had at that time, showed that $24,225 was procured pursuant to a resolution passed by the Village Board of Trustees. (Trial Exhibit Furthermore, the Mayor and the Treasurer were directed to release the funds by Supreme Court Justice Sherri Eisenpress. (People?s Exhibit black tab, article 78, The Mayor had voted for the Summer Program but he subsequently withheld the funds. When he appeared Justice Eisenpress in the article 78 proceeding, the Mayor did not assert any reason why he withheld the funds, but instead told the Court that it was the Treasurer who was holding up the check. (People?s Exhibit black tab, article 78, pp.7, 13). In the prosecutor?s Opposing af?rmation he merely asserts that ?Mr. Fonvil was 53 instrumental in causing Village of Spring Valley Funds to be delivered to her possess.? He does not deny that the funds were procured pursuant to a resolution passed by the Village Board of Trustees, or that the funds were ordered released by another Justice of this Court. He does not assert that any evidence was presented to the Grand Jury which showed that the funds were ?wrongfully obtained? as a result of a fraudulent scheme, as the statute requires. (P.L. 496.03). Instead, he asserted that it was not the People?s burden ?to prove that an agreement (sic) existed prior to the passage of the resolution authorizing the disbursement of funds to defendant Depas.? (Moran Afm., p3). Although the statute does not explicitly state that the fraudulent scheme had to have existed ?prior to? the ?wrongful obtaining,? it can only logically be stated that the funds were obtained as a result of the ?audulent scheme if the scheme existed beforehand. Opposing counsel goes onto that ?the Grand Jury presentation is replete with evidence that the defendants engaged in a systematic ongoing course of conduct.? (Moran Afm., He then describes Ms. Depas? issuance of four checks against the bank account into which she deposited the $24,225 payment from the Village. However, the ?systematic ongoing course of conduct? that is an element of the crime of ?Corrupting the Government? is one that is intended to, and which does result, in property, services or resources being ?wrongfully obtained.? (P.L. 496.03). The $24,225 payment from the Village had already been ?obtained? by Depas or wrongly), before she wrote any of the checks upon which the prosecution placed such heavy reliance. Also, the statute requires that the funds were wrongfully obtained from the ?owner.? It appears from the People?s submissions, and from the questions asked of the witnesses before the Grand Jury, that it was the prosecution?s position that the $24,225 that Depas received from the Village on July 8, 2016 continued to be ?Village funds? even after they were deposited into Depas? account. However, no proof was submitted that this was true as a matter of fact. Instead, it appears to be an assertion that it is the Village that has the legal right to the funds. In this case, the evidence showed that the money that Mr. Fonvil received came not from 54 the Village, but from Ms. Depas. The evidence also shows that Depas gave onvil the funds. They were not ?wrongfully obtained.? Since neither of these requisite elements was established by the evidence before the Grand Jury, Count One should have been dismissed. 55 Point GUILTY VERDICT WAS LOGICALLY INCONSISTENT WITH ACQUITTAL GIVEN THE RECIPROCAL ACTING IN ALLEGATIONS On of the offenses with which Defendant Depas was charged, Corrupting the Government, 3d degree, required that she acted in concert with a public servant, and in Count Two, which charges only Depas with such offense, it is alleged that she acted in concert with a ?public servant.? None of the statutes under which Defendant Fonvil was convicted required that he ?acted in concert? with co-Defendant Depas. However, that is the theory that was articulated in each of the six Counts in the Indictment. Therefore, it is logically inconsistent that Depas was acquitted of all counts while onvil was found guilty of all counts. Under Count One of the Indictment, in particular, it is not a requisite element of Corrapting the Government in the Third Degree as de?ned in FL. 496.03 (see above) that the ?public servant? acted ?in concert with another.? It is only the person who is not public servant, (in this case, Depas) who must have acted ?in concert? with a ?public servant? in order to violate the statute: A person is guilty of corrupting the government in the third degree when, being a public servant, or acting in concert with a public servant, he or she engages in a scheme (emphasis supplied). However, Count One alleges that FONVIL acted individually, an_d that he al? acted ?in concert? with another: ?[t]he Defendant individuallv and in concert with another, being a public servant, engaged in a scheme (emphasis supplied). At no time did the prosecution take the position that this wording was unintended. Nor did the People seek to amend such wording - even though it did ask for permission, at the start of the Trial, to amend Count One in a different respect. 56 Since Count One employs the conjunction, ?and,? rather than the disjunctive, a guilty ?nding under the terms of Count One required not only that Defendant FONVIL acted individually, but that he also did so ?in concert? with another. The same wording appears in the other three Counts against Defendant FONVIL. The Third and Sixth Counts use the words, ?acting individually and in concert with another? (emphasis supplied); and the Fifth Count uses the words ?acting individually and in concert with each other? (emphasis supplied). It is apparent from the Counts against Depas that she is the other individual. Since it was the prosecution?s theory that Depas and Fonvil acted in concert with one other, the Counts being mirror images of each other, logic required that they both be found ?guilty? or that they both be found ?not guilty.? Moreover, the ?acting in concert? theory was reaf?rmed in the prosecutor?s closing statement at the close of the trial, where he states twice that Fonvil could not have stolen from the Village without the assistance of Depas. He asserted that the crime in this case did not occur until July 27, 2016, when Depas and Fonvil split the alleged $22,250 ?surplus? of ?Spring Valley? funds that Depas had in her bank account (T831, lines 17-25); and he argued that Defendant Fonvil could not have obtained the funds if it had not been for Depas? help. (T830, line 19 - T. 831, line 4; T839, lines 7-8). So now, Judge, we have the original $8,120 surplus. We'll add the $3,750 that was given at the special meeting. There?s now a surplus of $1 1,870 of Spring Valley funds in the account of ermika Depas. Is that a crime? No, not yet. =13 31? Judge, the crime comes when Mr. Fonvil gets the money and Ms. Depas helps him do there.8 Because we can agree Ms. Depas is the only person with access to this account. He can't get it without her. (1:330, line 17 - T.831, line 4). The prosecutor then discussed how on July 27, 2016, Depas? purchased three bank checks 8 Presumably, the word ?there? should be ?that.? (This error was previously overlooked, and was not noted in Defendant?s March 15, 2017 Notice of Settlement). 57 with the funds in her account, and how the checks were cashed and the funds were allegedly distributed. (T.83 1 -83 9). He then again asserted that, if it had not been for Depas? help, Defendant Fonvil could not have obtained the ?inds: And, Judge, the evidence is he couldn't have done that without the help of ermika Depas. (T.839, lines 7-8). On November 17, 2017, following the non-jury trial, this Court found DEPAS ?not guilty? on each of the Four Counts against her, Counts Two, Four, Five and Six. It is implicit in that acquittal that the Court did not believe that Ms. DEPAS acted in concert with Fonvil to defraud the Village of Spring Valley. Since a guilty ?nding against FONVIL under the prosecution?s theory of the case required that he and Depas acted in concert, it logically follows that Defendant FONVIL also should have been acquitted. It is respectfully submitted that a court?s verdict in a bench trial should be logically consistent. 58 Point VI. THE EVIDENCE ADDUCED AT TRIAL WAS LEGALLY INSUFFICIENT TO SUPPORT THE CONVICTION OF DEFENDANT FONVIL UNDER ANY OF THE COUNTS IN THE INDICTMENT A verdict may be set aside pursuant to CPL 330.30(1) on a "ground appearing in the record which, if raised upon appeal from a prospective conviction, would require a reversal or modi?cation of the judgment as a matter of law by an appellate court." (People Vandermeulen, 2006 NY Slip Op *3 [Co Ct, County of Sullivan 2006]). motion pursuant to CPL 330.30(1) tests the legal suf?ciency of the evidence supporting a jury's guilty verdict. The term ?legally suf?cient evidence? refers to "competent evidence which, if accepted as true, would establish every element of an offense charged and the defendant's commission thereof" (CPL In assessing the suf?ciency of the proof, every reasonable inference must be drawn in the People's favor (People ejeda, 73 958, 960).? (People Floyd, 176 554, 555 [lst Dept 1991]). ?The standard for reviewing the legal suf?ciency of evidence in a criminal case is whether ?after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt? (Jackson Virginia, 443 US 307, 319 [emphasis in original] (People Contes, 60 620, 621 [l 983]). At the close of the People?s case, Defendant FONVIL moved to dismiss on the ground that the evidence was legally insuf?cient to support his conviction under any of the Counts in the Indictment. That motion was renewed at the close of the trial. Defendant counsel at that time also renewed his opposition to the amendment of Count One. (T781). The arguments that were made during these motions were renewed in defense counsel?s closing statement. 59 A. Count One of the Indictment: Corrupting the Government, 3rd degree 496.03 Corrupting the government in the third degree. A person is guilty of corrupting the government in the third degree when, being a public servant, or acting in concert with a public servant, he or she engages in a scheme constituting a systematic ongoing course of conduct with intent to defraud the state or one or more political subdivisions of the state or one or more governmental instrumentalities within the state to obtain property, actual services or other resources, or obtain property, actual services or other resources from the state, or any political subdivision or governmental instrumentality of the state by false or fraudulent pretenses, representations or promises, and thereby wrongfully obtains such property, actual services or other resources with a value in excess of one thousand dollars. Corrupting the government in the third degree is a class felony. The Court allowed Count One to be verbally amended at the start of the Trial, by adding the previously omitted words, ?with a value in excess of one thousand dollars.? As shown above, the most explicit, and speci?c statement of the prosecution? theory was made in the prosecutor?s closing statement, which was that ?the crime? did not occur until July 27, 2016, when the ?surplus? Village of Spring Valley funds in Ms. Depas? savings account were ?split? with Mr. Fonvil (T.831). Depas accomplished this by using funds from her savings account to purchase two bank checks, which were cashed on that date, and Fonvil received part of the proceeds. This was a narrower theory than had been articulated the prosecutor?s August 17, 2017 Af?rmation in Response to Defendant?s Omnibus motion (Motion Exhibit third unnumbered page) which also mentioned brie?y that Fonvil ?procured the contract for defendant Depas and was instrumental in causing Village of Spring Valley funds to be delivered to her possession.? That had occurred 19 days earlier, on July 8, 2016. (People?s 3). Evidence of the cashing of the two checks on July 27, 2016 and the distribution of part of the proceeds to Fonvil on that same date clearly did not establish ?a scheme constituting a systematic ongoing course of conduct with intent to defraud the state or one or more political subdivisions of the state?. Nor did they establish that the funds that Fonvil received were 60 ?wrongfully obtained? from a ?political subdivision of the state,? or that the funds were obtained ?by false or fraudulent pretenses, representations or promises.? As noted above, Mr. Fonvil denied receiving any part of a third check, on August 5, 2016. But, even if it were assumed for the purposes of this motion that he did receive them, the same failure of proof applies to that August 5, 2016 check that applied to the two checks on July 27, 20 1 6. B. Count Three: Grand Larceny in the Third Degree, a Crime of Public Corruption THIRD COUNT: AND THE GRAND JURY AFORESAID, by this indictment, further accuses the defendant, VILAIR FONVIL, of the crime of GRAND LARCENY IN THE THIRD DEGREE, A CRIME OF PUBLIC CORRUPTION, (Sec Penal Law), committed as follows: The defendant, in the County of Rockland, in the State of New York, on or about and between the day of June, 2016 and the 3 1 st day of August, 2016, acting individually and in concert with another, being a public servant and through the use of his public of?ce, stole property valued in excess of Three Thousand Dollars from the Village of Spring Valley and the Village of Spring Valley was the owner of said property. (emphasis supplied) The statutes upon which the Count Three of the Indictment are based are the following: 155.35 Grand larceny in the third degree. A person is guilty of grand larceny in the third degree when he or she steals property and: 1. when the value of the property exceeds three thousand dollars, or 2. the property is an automated teller machine or the contents of an automated teller machine. Grand larceny in the third degree is a class felony. (emphasis supplied) 496.06 Public corruption. 1. A person commits the crime of public corruption when: (I) being a public servant he or she commits a speci?ed offense through the use 61 of his or her public of?ce, or (ii) being a person acting in concert with such public servant he or she commits a speci?ed offense, and the state or any political subdivision thereof or any governmental instrumentality within the state is the owner of the property. 2. A "speci?ed offense" is an offense de?ned by any of the following provisions of this chapter: section 155.25 (petit larceny); section 155.30 (grand larceny in the fourth degree); section 155.35 (grand larceny in the third degree); section 155.40 (grand larceny in the second degree); section 155.42 (grand larceny in the ?rst degree); section 190.60 (scheme to defraud in the second degree); or section 190.65 (scheme to defraud in the ?rst degree). (emphasis supplied) As was discussed above with respect to the Grand Jury presentment, the allegation in the Indictment that ?the Village of Spring Valley was the owner of said property? is in the nature of an assertion, that the Village had a legal claim to the ?lnds on July 27, 2016, which was superior to that of Ms. Depas? claim of right to the funds. It is not a literal statement of fact. There would have to be a judicial determination that the Village is entitled to recover those funds, such as a judgment at the conclusion of an contract for breach of contract. The evidence adduced at trial in this criminal proceeding did not establish as a matter of fact that the Village was the owner of the funds; nor was it established as a matter of law. On this ground alone, the Third Court must be dismissed on the ground that the evidence adduced is legally insuf?cient. There also was no evidence of a false promise, which was presumably theory of larceny that the prosecution was relying upon. See People Norman, 85 609, 615-625 [1995]. Under the theory of larceny by false promise, the fact ?nder must be able to exclude "to a moral certainty every hypothesis except that of the defendant's intention or belief that the promise would not be performed" (Penal Law 155.05 (id, at 619-620). (People Stuart, 51 547 [1 st Dept 2008]). 62 C. Count Five of the Indictment Was Legally Insuf?cient FIFTH COUNT: AND THE GRAND JURY AF ORESAID by this indictment accuses the defendants of the crime of MONEY LAUNDERING IN THE FOURTH DEGREE (Sec 470. Penal Law), committed as follows: The defendants, in the County of Rockland, in the State of New York on or about and between the 1 day of June, 2016 and the 31st day of August, 2016, acting individually and in concert with each other, knowing that the property involved in one and more ?nancial transactions represent the proceeds of criminal conduct, conducted one and more ?nancial transactions which in fact involve the proceeds of speci?ed criminal conduct, to wit, Receiving Reward for O?icial Misconduct the Second Degree (Sec. 200. 25 Penal Law), knowing that the transaction and transactions in whole and in part were designed to conceal and disguise the nature, the location, the source and the control of the proceeds of criminal conduct and the total value of the property involved in such ?nancial transaction or transactions exceeded Five Thousand Dollars 470.05 Money laundering in the fourth degree. A person is guilty of money laundering in the fourth degree when: 1. Knowing that the property involved in one or more ?nancial transactions represents the proceeds of criminal conduct: he or she conducts one or more such ?nancial transactions which in fact involve the proceeds of speci?ed criminal conduct: (I) With intent to: (A) promote the carrying on of criminal conduct; or (B) engage in conduct constituting a felony as set forth 1n section eighteen hundred three, eighteen hundred four, eighteen hundred ?ve, or eighteen hundred six of the tax law; or (ii) Knowing that the transaction or transactions in whole or in part are designed to: (A) conceal or disguise the nature, the location, the source, the ownership or the control of the proceeds of criminal conduct; or (B) avoid any transaction reporting requirement imposed by law; and The total value of the property involved in such ?nancial transaction or transactions exceeds ?ve thousand dollars, or 2. Knowing that one or more monetary instruments represents the proceeds of criminal conduct: he or she transports, transmits, or transfers on one or more occasions, monetary instruments which in fact represent the proceeds of speci?ed criminal conduct: (1) With intent to promote the carrying on of criminal conduct; or (ii) Knowing that such transportation, transmittal, or transfer is designed 1n whole or in part to: (A) conceal or disguise the nature, the location, the source, the ownership, or the control of the proceeds of criminal conduct; or (B) avoid any transaction reporting requirement imposed by law; and 63 The total value of such monetary instrument or instruments exceeds ten thousand dollars; or 3 He or she conducts one or more ?nancial transactions: involving property represented to be the proceeds of speci?ed criminal conduct, or represented to be property used to conduct or facilitate speci?ed criminal conduct, with intent to: (1) promote the carrying on of speci?ed criminal conduct; or (ii) conceal or disguise the nature, the location, the source, the ownership or the control of property believed to be the proceeds of speci?ed criminal conduct; or avoid any transaction reporting requirement imposed by law; and the total value of the property involved in such ?nancial transaction or transactions exceeds ten thousand dollars. Money laundering in the fourth degree is a class felony. As discussed above, the ?nal articulation of the theory of the prosecution was that ?the crime? occurred on July 27, 2016, when the ?surplus? Village of Spring Valley funds in Depas? savings account were split with Fonvil; and that Depas did so by using those funds to purchase two bank checks, which were cashed on that same date, and Fonvil received part of the proceeds. Those are the only criminal ?nancial transaction that the prosecution has alleged. Those two transactions both occurred on July 27, 2016, within a few hours of each other. Those same two transaction cannot also logically constitute transactions intended to conceal the proceeds of criminal conduct. Thus, the evidence supporting Count Five is legally insuf?cient. D. The Evidence Adduced at Trial Was Legally Insuf?cient to Support the Conviction of Defendant Fonvil under Count Six of the Indictment The Sixth Count of the Indictment alleges as follows: SIXTH COUNT: AND THE GRAND JURY AF ORESAID by this indictment, ?irther accuses the defendant, VILAIR FONVIL, of the crime of RECEIVING REWARD FOR OFFICIAL MISCONDUCT TN THE SECOND DEGR The defendant, in the County of Rockland, in the State of New York, on or about and between the 1" day of June, 2016 and the 31 day of August, 2016, acting individually and in concert with another, being a public servant, solicited, accepted and agreed to accept a?bene?t from another person for having violated his duty as a public servant. 64 The crime of Receiving Reward for Of?cial Misconduct in the Second Degree is de?ned as follows: 200.25 Receiving reward for of?cial misconduct in the second degree. A public servant is guilty of receiving reward for of?cial misconduct in the second degree when he solicits, accepts or agrees to accept any bene?t from another person for having violated his duty as a public servant. Receiving reward for of?cial misconduct in the second degree is a class felony. Receiving Reward for Official Misconduct in the Second Degree encompasses the crime of O?icial Misconduct. (P.L. (People Garson, 17 695 [2d Dept 2005]). In order for an indictment to establish Official Misconduct, it must de?ne the Of?cial?s duty it must allege with speci?city the manner in which such duty was violated; and it must speci?cally allege the ?bene?t? that the public servant ?solicited, accepted or agreed to accept having violated such duty.? (P.L. (People Adams, 86 Misc 2d 634, 382 879, 882 Ct, Suffolk County 1976]). In the case at bar, the prosecution did not de?ne Trustee Fonvil?s duty or specify the manner in which such duty was violated, in the factual portion of the Indictment; in the Bill of Particulars; or in the prosecutor?s September 7, 2017 letter. Nor did the People speci?cally allege the ?bene?t? that Trustee Fonvil ?solicited, accepted or agreed to accept having violated such duty.? At trial, ?no promise or unlawful reward to the defendant? was proven. (People Blumenthal, 55 13, 389 579, 580 [lst Dept 1976]). It is also worth noting that in the Blumenthal case, the First Department did not consider it to be a reward for of?cial misconduct that the person who was hired was able to then pay the bill that it owed. Moreover, the fact that, by virtue of its eventual employment by Bergman at the Park Crescent Nursing Home, TDC was able to pay to the defendant?s law ?rm a past due and current fee of a total of approximately $400.00 for professional services covering two years of work including non-Bergman related matters as well, does not bolster the charge. TDC being a legitimate organization and not a conduit for any cover-up, was an intervening factor so that a benethe defendant. His service to bring to the community a minority training program was a justi?able activity for a public servant. 65 I point this out because, in the case at bar, the prosecutor suggested that a negative inference should be drawn from the fact that Depas was able to repay a $3,000 loan that she had received last year from Fonvil out of the fee that she earned under the Summer Program Coordinator Agreement. Conclusion The verdict of this Court, convicting Defendant Vilair Fonvil of Counts One, Three, Five and Six of the Indictment should be set aside, and the Indictment should be dismissed. Dated: April 6, 2018 To: ADA Richard Moran, Esq. THOMAS P. ZUGIBE District Attorney of Rockland County 1 Main St, Suite 500 New City, New York 10956 Tel.(845) 638-5001 Fax (845) 638?5298 E-mail: moranr@co.rockland.ny.us 66 Yours, etc. CHARLES E. HOLSTER ESQ. 666 Old Country Road,, Suite 600 Garden City, New York 11530 Tel. (516) 747-2330 Fax (516) 877-0476 E?mail: cholster@optonline.net