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Port Authority of New York and New Jersey

This is a criminal action wherein defendants filed an appeal, challenging the judgments of conviction rendered against them, and the order denying their post judgment motion for vacatur.

A Queens County Criminal lawyer said that the defendants served as president and vice-president of the defendant corporation engaged in the business, among other things, of providing public transportation between Nassau and Suffolk Counties and Kennedy and LaGuardia Airports and Queens Plaza in Queens County. The defendants’ convictions of attempted grand larceny in the second degree and offering a false instrument for filing in the first degree were based upon their participation in a program providing carriers with subsidies from the State, through the county, based upon a formula taking into account the number of revenue-generating miles traveled and the number of revenue-paying passengers carried on “line regular trips between established locations pursuant to fixed, predetermined time schedules.

A Queens County Criminal attorney said that during the second quarter of 1982, operators were entitled to payment under the program at the rate of $0.135 per revenue passenger and $0.415 per revenue mile; after the amount of reimbursement was calculated, it was then discounted to 83 percent. According to the People, the defendants filed a quarterly report, as required, with the transportation division of the Suffolk County Planning Department for the quarter in question, which falsely overstated mileage and passenger counts on their airport line runs and Queens Plaza line runs with the intent to obtain funds in excess of the amount to which they were entitled. However, during the trial, the prosecutor specifically and unequivocally withdrew any claims by the People with respect to falsification of mileage counts, and undertook to prove the two counts in question solely on the basis of false passenger counts.

There was no dispute at the trial that the figures contained in the quarterly report purporting to reflect the total numbers of passengers carried during that quarter were inaccurate. In fact, a comparison of the quarterly report with the defendants’ own summaries of passenger counts for individual airport line runs during that quarter revealed an overstatement of 17,798 passengers in the report. On the basis of the formula in effect at the time, that overstatement would have resulted in an overpayment to the defendants of approximately $1,994.00.

A consultant to the defendants during the relevant time period, testified that he had prepared the quarterly report in question. According to him, he was told by the defendant to obtain the passenger count figures for airport runs, to be included in the quarterly report, from a certain record book kept on defendant’s desk. However, he testified that he had mistakenly taken the wrong book, which contained total passenger counts. Consequently, he had inadvertently inserted the wrong figures in the quarterly report. He further testified that in October 1982, an audit of the corporation was conducted by Nassau County and that, during the course of that audit, witness’ error was first detected by defendant, who immediately advised the auditor of the resulting inaccuracy in the quarterly report. However, in sharp contrast, the Nassau County auditor, testified that he had never been shown the book from which the witness had allegedly obtained the erroneous passenger counts, nor had he ever been told that the figures in the quarterly report were in error.

The contradictory testimony presented a sharp issue of credibility for the trier of fact. The trial court, by its verdict, apparently resolved that issue rejecting the witness’ claim that the erroneous passenger counts were placed in the report as the result of his inadvertence and without the knowledge of the criminal defendants. However, it does not follow that the remaining evidence with respect to the two counts in question was sufficient to sustain the convictions thereunder, and such evidence did not, in our view, exclude to a moral certainty every reasonable hypothesis of innocence. Such evidence established no more than that the corporate defendant corporation filed a quarterly report with Suffolk County, signed by the defendant, containing incorrect passenger counts for airport line runs during the quarter in question, and that this inaccuracy was not brought to the attention of the auditor by witness or by the individual defendants at the subsequent audit at which they were present.

The Court simply cannot conclude that the foregoing facts point inexorably to the inference that the quarterly report was filed with the knowledge that it contained false information and with the intent to defraud, or with a larcenous intent. Accordingly, the defendants’ convictions of attempted grand larceny in the second degree and offering a false instrument for filing in the first degree, and the sentences imposed thereon, must be reversed and vacated, and those counts of the indictment dismissed.

The three defendants were also convicted of two counts of falsifying business records in the second degree. According to the People, the corporation had obtained a privilege permit from the Port Authority of New York and New Jersey (hereinafter the Port Authority) which authorized the corporation to provide transportation service at Kennedy and LaGuardia Airports in return for payment to the Port Authority of a percentage of the gross receipts generated in the transport of passengers to and from those airports. Under the permit, the corporation was required to file regular reports of gross receipts with the Port Authority and, in addition, the Port Authority was entitled to audit the corporation for the purpose of verifying the accuracy of the latter’s reports and payments.

In our view, the foregoing evidence was sufficient to sustain the trial court’s verdict on the two counts in question. First, the “Specials” sheets clearly constituted writings maintained by the corporation for the purpose of evidencing or reflecting its condition or activity, thereby satisfying the statutory definition of a “business record”. Second, the inference of guilt, i.e., that the criminal defendants caused false entries to be made in their business records with the intent to defraud, was consistent with the facts proved, and excluded ” ‘to a moral certainty’ every reasonable hypothesis of innocence”.

The remaining challenge to the sufficiency of the evidence is directed at count twelve of the indictment, under which the defendants were convicted of criminal contempt in the second degree. The evidence adduced with regard to this count established that in October 1982, all of the defendants were served with a subpoena duces tecum, directed to the president of the corporation, ordering the production before the Grand Jury of “relating to NYS Mass Transportation Operating Assistance Program, to present including, among other things, “record known as the Daily Calendar, ‘the Book’, or by any other name, which indicates, by date, the total number of passenger carried and the dollar revenue received for door to door transport service, also known as specials”.

A police officer involved in the investigation of forgery testified that during the execution of the search warrants at the office, he had observed and photographed a book matching the foregoing description in a drawer in the desk of the defendant; however, the book in question had never been produced in response to the subpoena.

The Court commenced their analysis by addressing the defendants’ contention that the denial of that branch of their pretrial motion which was to dismiss the indictment was error. A review of the Grand Jury minutes and the papers filed in conjunction with the defendants’ motion discloses that neither the conduct of the prosecuting attorneys nor that of the police officials involved in the investigation was so egregious as to require dismissal of the indictment. Moreover, the defendants did not sustain their weighty burden of establishing that the instant prosecution constituted a selective application of the law resulting from a pattern of impermissible discrimination consciously practiced. Further, the defendants failed to adduce factually detailed sworn allegations which would entitle them to a hearing on this issue.

In addition, the denial of that branch of the defendants’ pretrial motion which was to suppress all of the physical evidence seized pursuant to the execution of two search warrants at the office of the defendant, a corporation for services of limousine was not error. With regard to the facial validity of the warrants, the descriptions contained therein of the items to be seized were sufficiently definite, under the facts and circumstances of this criminal case, to enable the police officers executing the warrants to properly identify the documents to be seized. As to the manner in which the warrants were executed, the evidence supports the suppression court’s determination that the executing officers were adequately apprised of the terms of the warrants, the spatial limitations contained in the warrants were substantially complied with, and a good faith effort was made to seize only those items specifically enumerated in the warrants. In any event, any items improperly seized were suppressed by the hearing court.

The larceny defendants also challenge the legal sufficiency of the evidence supporting each of the counts upon which they were convicted. In passing upon their contention, we must view the evidence in the light most favorable to the prosecution, bearing in mind that issues of credibility are to be resolved by the trier of fact. The test for legal sufficiency is whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt”. Moreover, because the proof adduced by the prosecution in this criminal case was wholly circumstantial with respect to certain counts, we must determine whether the facts from which the inference of guilt was drawn reasonably permitted the trier of fact to conclude that the evidence excluded to a moral certainty every reasonable hypothesis save that of guilt.

The Court concluded that the People’s evidence was sufficient to establish (1) that “the Book”, containing daily records of passenger counts and revenues, was related, in fact, to the program because such information was relevant in determining the subsidies to which the defendants were entitled under that program; and (2) that “the Book” did, in fact, exist and that the failure to produce it constituted “disobedience or resistance” to the subpoena.

While it is true that a search warrant empowers the serving officers to search the premises of the owner, such warrant must be implemented in accordance with law. Here in Stephen Bilkis and Associates, our Queens County Criminal lawyers will protect when an officer abused the rights conferred to him by law. We will file the necessary complaint against the erring officer. Whenever a person was accused of grand larceny, you can consult our Queens County Grand Larceny attorneys. We will be glad to help you.

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