The People, Respondent,v.Alfred Gary, Appellant.BriefN.Y.October 13, 2015APL-2014-00238 App. Div., 2d Dept. Docket No. 2012-08351 Nassau County Indict, No. 225N-2011 ToBeAryaedBl: Jason R. Richards Tine l\cqaested: 1 5 Minutes @ourt of flppe$ls Stste of #eh Porh THs Pnoplp oF THE Stern or Nrwyonr, ReEonfunt, - against - Alrnpp GenE Defendant-Appellant RBspoNDENTIS Bnrnr MaoBuNB SrNcas Acting Disttict Attorney, Nassau County AttomyforReEondtnt 262ALd Country Road Mineola, NewYotk 11501 (s16) 571-3800 FAX (516) 571-3806 TammyJ. Smiley Jason R. Richa.tds Assis tant Di strict Attornevs of Counsel Brief completed Februaty 4,2A75 Tael-r or C_oNTENrq Pase.- Table of Authorities .....,.... .........'i Issues fot Review ......iv Preliminary Statement, ......,.........v Staternent of Facts Introduction .........,.. ..............1 The Ttial The Peop1e's Case .....,.....2 The Defendant's Case ............,.....,...9 The Verdict and Sentence ..........,....,..11 Point One The Ttial Coult Providently Exetcised Its Disctetion In Denying The Defendaat's Motion To Sttilce A Portion Of A Document ThatThe Pa*ies Had Stipulated Into Evidence, And Any Ertot In Allowing This Evidence Was Harmless,. ...,..,.......13 A. The Defendant's Motion To Strike \)fas Untimely And, Therefore, Failed To preserve Fot This Court s Review His Claim Regarding The AdmissibiJity of People's Exhibit 17C.............14 B. The Trial Coutt Comrnitted No Abuse of Discretion in Denying The Defendant's Belated Motion to Strike... ...,.........18 C. Any Ertot In The Trial Cowt's Denial Of The Defendands Belated Motion To Strike STas Harm1ess............ ..,..22 Point Tvro The Defendant's Conviction Of Fourth-Degtee Conspiracy \X/as Supported By L"gally Sufficient Evideace ..,.,,.....24 A. A Rational Trier Of Fact Could Have Found The Elements Of Fouth-Degree Conspiracy Ptoven Beyond A Reasonable Doubt,............... .................24 Paee -B, Indeed, The Proof Of The Defendant's Guilt Was Overwhe1ming...,.. ..,..,.,...27 C. The Defendant Distots The Trial Recotd To Obscute The Sttength Of The Proof Of His Gui1t......,.. .......31 Point Three The Trial Court's Verdict Was Not Repugnant.....,..,,...... .....37 Point Four The Defendant's Complaints About The Trial Court's Evidentiary Rulings Are Without Medt, And Any Eror Was Hamrless..........,. ......40 Conc1usion.......,....... ..,,......,........43 TABLE OF AUTHOR]TIES Cases Pase - Jackson u. Virginia,443 U.S. 307,379 (1979) ...........,.,24 Matter of NewYwk,I-ackawanr.a bIY, P'-8. Ca,, -qB N.Y. 447(1885) ,..........19 Pnph a. BatTran, B}N.Y.2d 170 (1,gg}) .......,,...........41 Peopte u Canvll,95 N.Y.zd 375 (2000) ,.....18 People a. Cltin,67 N.Y.2d n 0986) .,.........42 Peaple u. Cfi,de, tB N.Y.3d 145 (2011) ......,.25 People u. Crirrumins, 36 N.Y2d230 (1975) 22,4L,42 People y. DeMaum,48 I{.Y.2d 892 Q,979) .................,..18 Peaph a. Derrule,52 N,Y,2d 956 (1981) ......17 Peopk u. Gairnad,176 N.Y. 84 (1903) .....,..29 People u. Gajadltar,38 A.D.3d L27 (1.stDept, 2007) .....................19 Peoph u. Gary,115 A.D.3d760 (2d Dept. z}lq ...,..v-vi Peaple a. Gary,24 N.Y.3d 960 Q01,4) ..........yi Peopte u. Gerard,sO N.Y.2d 392 (i980) ,,.,..24 Peopte a. Goodfriend,l00 A.D.2d 7Bt (1st Dept. 1,984) .....,.,.........37 People u. Goodfrienl, 64 N.Y.zd 695 (1984) ..............38 People u. GrEt, 86 N.Y.2d 10 (1995) ....,..,.,.t7 PaEe -People u. Kenned1468 N.Y.zd 569 (1986) ,....21 People u, Kban,l8 N.Y.3d 535 Q012) ........24 Peoplo a. K-ronbergz77 "lL.D.2dLBz (1st Dept. 2000).,...... ..,,.,,..,...38 People a.I-awrence,64 N.Y.2d 200 (1984) ...,...............20 People a. McGee,4g N.Y.2d 48 (1979) ........39 People a. Negron,gl N.Y.2d 788 (1998) ,....28 People u Pa1ne,3 N.Y.3d 266 QAA4) .,..17,18 People u. Siegel,87 N,Y.2d 536 (1995) ..,..,,42 People a, Trappier, ST t\.Y.2d 55 (1995) .,...37 People u..Tucker,ss N.Y.2d 1 (1981).... ,.,....27 Peopk u. Vargas,88 N.Y.2d 363 (1996) .....,...,....,...,..42 Statutes Ctiminal Procedure Law g a60.20Q)Q)(r) ..,.....,.........,......,...... .....vi Criminal Procedute Law $ 460.60 ,............vi Criminal Procedute Law $ 47A.ASQ) ...17,1g Civil Practice Law and llules S 4518 ...,..,,.21, Penal Law $ 105.00(1) ....,....t1.,25 Penal Law $ 105.10(1) ....,......v,38 Pase -Penal Law $ 155.40 ...................27 Penal Law $ 190.65(1)0) ............,.,, .1,7,37,38 P"$al Law $ 460.20(txr) ..,....,...,.. ..............1i Penal Law $ 470.20(1xb)(iix4(r, .,.....11,37 Otlet Au.thorities CriminalJuryInsttuctions2dOT.Y,)PenalLaw$105,00,..,... .......,..,..,..25,38 7. Lssuns ponRrvrnw SThether, as the intermediate appeilate coutt unanimously held, the ttial court providently exetcised its disctetion in denying the defeadant's belated motion to strike frorn eidence a notation ofl a document that was admissibie accotding to his own prctdal stipulation. rff/hether, as the intermediate appellate court hel.d, the evidence was legally suffi.cient to support the defendands conviction of conspiracy in the fourth degree. Whether the inteunediate appelldte court corectly held that the d.efendant's conspiracy conviction \ffas not inconsistent v/ith, or rcpugnant to, his acquittal of chatges of money larrndering and scheme to defraud. S7hether the intermediate appellate court cotrectly held that the ttial court had ptovidentJy exetcised its discretion in denying the defendant's motions to stdte from evidence: (a) the statement of a co-conspitator; a"d (b) the testimony of a witness who invoked his right against selGincrirnination regarding a collateml mattef. 3. 4. 1V @ourt of $ppeuls srtute of ^#eh Porh ..sLl*..- Tun PeopLE oFTHE Srare or NewYonr<, Respondent, - against - ArrI.BN GARV, Defendant-Appellant. ltrspouDENT's Bnrnr PpsLn'4NARY .SjraTEI\,ffiI{r The defendant Alfred Grry appeals from an order of the Appellate Division, Second Judicial Deparffnent, entered on Match 12,2A1,4, which affirmed a judgmeat of the Supreme Court, Nassau County (St. Geolge, J.), rendered on August 22,201.2, convicting the defendant, following a bench tria! of conspir ac'y ittthe foutth degree (Penal Law S 105.10[1]), and sentencing him to a teffi of probation of five years and to pay restitution in the amount of $139,910.0A. People u. Gary,115 A.D.3d760 Qd Dept, 2014). The defendant was one of fourteen codefendants (James Robet Sweet, et al,), all of whom v.iith the exception of the defendant pleaded g*itty and waived the right to appeal. By crder datC Septernber 5, 2074, tJre Hono.-abie Eugene F. Figgotg Jr., granted the defendant's application for leave to appeal to this Court pursuant to C.PJ- $ 460.20(2)(rxr. People u. Garyt,24 N.Y.3d 960 (2014), The defendant is at liberry pursuaflt to the stay of judgment pending appeal that was continued by Judge Piggott on April 23,zll.4,pursuant to C.P.L, S 460,60, Statr,MBNr op Facrs INrnonucuox The defendant played an indispensable role in a conspiracy that stole millions of dollars from mottgage-lending institutions from 2004 to 2009. These institutions were persuaded, on the basis of fraudulent documents provided by the defendant and othets, to lend this money to straw buyets, controlled by the conspiracy, fot the puqported purchases of various residential prcpeties. The members of the conspiracy, which was led byJames Robert Sweet, never intended to repay the loans. Instead, the loan checks were simply cashed and disuibuted amoog the members of the conspitacy, induding the defendant Th"_ egdgrrtqptgpqgts4j.t_{rs_de{e"sdaqts_q1al, p{_qycd_beyp__u4..a-_r_e_asorurble_ doubt that he ptovided falsified loan application documents - bogus veri{ications of employment fot three straw buyets - thatenabled these thefts. The evidence showed also that the defendant facilitated the distribution of the proceeds of his co- conspirators' thefts by introducing Sweet to a ftiend rryho was willing to "wash" the stolen money by depositing it in his invesffnent firm's bant< accounts and then refurmng it minus a tefl-percent "commissionr" to Sweet in the form of cash. The prosecution ptoved, moreoveE that the defendant was given hundreds of thousands of dollars of the stolen lnoney for fulfiIiing his role in the conspiracy. Nonetheless, the defendant contends that the evidence of his wongdoing was legally insufficient to support his conspitacy conviction. He argues also that the ttial court abused its discretion in tefusing to grant his mid-tdal motion to stdke from evidence a handwdtten notation ori one of the aforementioned fraudulent ernployment forms that, the defendant contends, coastituted inadrnissible hearsay. The latter atgument was flot ptesetved fot this Cotrt s review. In any eveflt, both contentions are without merit, as a-re the defendant's tetaaining claims - regarding the supposedly ,:epugnant vetdict and other alteged evidentiary e(rors by the trial court. Accordingly, this Court should affumthe Appellate Division's order affirming the judgment of conviction. Tt{g PBopre's._C,ase Ptior to the start of ttial proceedings, the patties agteed to a Stipulated Statement of Facts ('stipulated Facts') and a Stipulation of Witness Statements ("Witness Staternents'), both admissible as evidence at the defend.ant's trial (RA4B; AA107-28).1 In the ftst of these documents, the Stiputated Facts (AA107-14), signed t Because the Defendant-Appellant's Appendix and Supplernental Appendix include only exceryts ftote the odginal recotd, and exclude pottions of the tecord that the respondent cites hete, the rcspondent has ptepared its own appendix confaining the tdal minutes h thefu entirety. The numbets pteceded by "RA" tefer to the pages of the Respotdent's Appendix, and the flalnes prccedirrg numerical tefetetrces tefet to the witnesses who testified. Numbers preceded by ,'AA" refet to the Appellant's Appendix; those pteceded by "DB" refer to his brief on appeal. by the prosecutor, defense counsel, and the defendant himself, the parties agreed that the allegations contained in the indicnnent against the defendant and his thirteen codefendants2 6lndicnnent No. 225N-2011) - membets of the crirninal enteqprise known as the Sweet Deal Real Estate Gtoup ('Sweet Deal'), led by James Robert Sweeq also known as Rob Sweet - wefe true, except to the extent that those allegations pettained to the defendant GA48; AA107). A copy of the indictrnent (AA9-99) was attached to the Stiputated Facts and incolporated by refereuce (AA107). The second document, the nflitness Staternents (AA115-ZB), contained rhe statements of twelve witnesses who "if called to testifr, would testify under oath as set forth herein" (AA115) conceming the crimiaal acts committed by Sweet Deal. The indictfii.ent chargcd rnembers of Sweet Deal with flumerous crimes, including conspiracy to steal ftaudulently-obtained mortgage loans frorn Countrywide Home Loans and othet lenders (4A13, 108-09). Between 2004 and z}}g,Svreet and his accomplices stole millions of dollars of such loans by means gf two methods: fi.rst, on more than a dozen occasions, Sweet Deal had straw buyers purchase residential propetties at inflated prices and then distributed the majority of the proceeds of these sharrr sales among the members of Sweet D"al, rather than the ploperty sellersl second, ofl at least six occasions, Sweet Deal used stolen identity information to ' The defendant's codefendants were Jarnes Robert Sweet, Dwayne Beniamh, SOPHIA WELSH, Stepharie Wathins, Yves Mathieu, Vethrs Vielot, Lainzo Claytoq Ethan Se{in, John Dicanio, cARLos IRIZARRY, Radamex velaquez, Jarnes Ganr, and Allen Woods. impersonate both the buyer and the seller of tesidential propetties and then took the ptoceeds of these phony transactions (AA109). The pa*ies agreed to the Stipulated Facts and the Witness Statements in order to avoid the butden and expeftse of a lengthy trial where much of the testirnony would coocern ulcontested backgound information on Sweet Deal, a1l of the members of which, except the defendant, had pleaded $xlty before his trial (X.A79-80, 1202-Aq. Thus, the parties limited the issues of fact at tnalto "whether or not the defendant was a pat of that conspiracy" (R.A723). Accordingly, Carlos Inzarcy, a moftgage broker, testified that the defendant helped Sweet Deal to obain rnortgage loans by completing fraudulent verification of employrrnent fotms fot sttaw buyers. Thcse forms, which indicated - fatsely - that the sftaw buyets were ernployed by the defendant's compafly, were included in the loan applications submitted to the mofigage lenders by krzarcy Snzary: RL244;AA111). On three separate occasions, the defendant provided l:rrzar:.,y with false employrnent verification forrns for straw buyers Qrlrzar;ryt RA261-62).3 Inzatry was introduced to Rob Sweet in April 2006 {rtzarr;n RA207). At the time, Sweet explaine d, to ?lrza:rryand his fellow mortgage btoker, John DiCanio, that several friends and associates who worked ^, or" of Sweet's companies wete loohing 3 One of these three false ernployment verification forms was introduced into eviderrce as People's Exhibit 17C- The other two wexe not, to purchase homes and that anothet friead who had bought homes io foreclosure was intetested. in selling those homes to Sweet's colleagues Snzmry: RA207-08). Sweet begaa referringthese bortowers tolnzatry and DiCanio and, at first, they qualified for tlre loans they sought Srizarry: RA20B-09). Soon, however, that changed; it became obvious, on the basis of the iaformation that they provided, or failed to provide, that Sweet's friends and coileagues would not be approved by the mortgage lendes (izatry: RA209). Nevenheless, kizary and DiCanio "would basicaily find a way for these loans to close" (id.).They began to recruit others to provide false verifications of ernployment, reflt, and deposit to make the loan applications acceptable to the mortgage lendets Qrizalry RA209-10). Often, Sweet Deal paid those who fumished the false vetifications fot doing so (Itizatry: RA212-17). While the defendant v/as not paid qaidpro guo fot the three false vedflcations of employment that he provided, he teceived very large cash payments, occasionally for cars, from Sweet and his associat€s. Indeed, according to the district attotney's investigative accountant SHE'.RLY GSCHWENG, Sweet and other members of Sweet Deal paid the defendant $509,3 55.29 between October 2005 and July 2008 * or rnore than half of all the deposits t'nade during this pedod to the bank account of the defend.ant's company, the Virtual Auto Gtoup (Gschweng: RA813-33). For instance, zskrzarq/s reward for closing three real estate deals for Sweet Deal, Rob Svreet gave the defendant $10,000 toward the putchase of a Cadillac Escalade for Iizarry $tizarqr. RA24B-54). In Novembet 2006 lrizalry and DiCanio were ffyrng to figwe out how to get apptoval fot the Ioan application of an unemployed staw buyer, Frank Matin, ,*rho had applied fot a mortgage loan to finance his purchase of the property located at ! Friends Laae in Westbury, New York BA22 fPeople's Ex. 17Cr false vedfication of employtnent fourr]; Iizarry: R4261,-62; AA129). Sweet ha;d a solution; he made Inzary "aware [ttrat] I was able to contact Alffted Gary], and that he would ruodr it out with Al and Al would ved$r his [the purchaser's] ernploynent status" (nzatty: RA261). Accotdingly,Irizar:ry contacted the defendant and told him what dutation of "emplo5.rrnent'' at the defendant's company Martin would need to show to qualiSr for the loan (nzarry: RA261-62),Inzarty instructed the defendant that a verification of employment foffi would be faxed to him and. that he should return the signed form in accordance with theit discussion (z/.). Upon completing the verification of employm.eflt form on November 16, 2006 (AA129), the defendant faxed it w lizany and the form was submitted to the lender Snzarry: R4266-72). The defendant's fax machine printed the telephone number of the defeodant's comp any andhis web address - MR MAKE IT HAPPEN.COM - at tlre top of the returned form $.A22; Inzary: RA2T2; Gary: RA1170-71; AA129). A note on the completed form indicates that onJanuary !2,2OO7,Niutka Rodriguez,a a representative of Count4nuide, called the defendanq who told her that the information on tlr.e form was cottect Qnzttry: kA269-71). In uuth, Mattin was rlevet employed by the defendanq the infotmation on the verification form was a lie {nzarry: RA262). L*tet in 2A07, an iavesffnent banher and old ftiend of the defendant's, TONY RAYNARD SMITH, contacted him about leasing a" cat frorn the defendant's cornparry (Smith: RA522-23). The two teached a lease agteement fot a new Saub SUV in Juty 2A07 and,in the months that followed, continued to talh to each othet about othet possible business ventures (Smith: R 523-24), In Decemb et 2A07, the defendant mertioned that James Robert Sweet might be intetested in investing sorne money with Srnith's help and suggested that Smith should meet Sweet (Smith: RA525-27), The defendant took Smith to a Starbucks in Midtown Nlanhatan, where Sweet was waiting for them (Srnith: RA527-29). They left the coffee shop and walked actoss tlre stteet to the lobby of a building whete Sweet said he had an office (Smith: RA529). Thete, in the lobby, the defendant intoduced Smith to Sweet, who told the investrnent banker that he had clients who wete interested in making some investments (id.).In addition, Sweet told Smith, his clients "had some checks coming ftom teal estate closings and the clients wanted that money aln the trial trznsdtpt, the court tepoftff recorded the name as "Nolica Roilriguez" Stizeittyt RA269,27A,436). back in cash" (z/.). Sweet v/as willing to pay a ten percent cornmission and did not care how the rnoney was divided between Smith and the defendant, who participated in the negotiation of the commission (Smith: RA530-31). Smith agteed to the arrangeffreng despite his belief that it $ras wrong (Smith: RA535-36). Smith thought it rras suspicious that Sweet needed to cash six-f,gute checks. Sweet did not explain why this was necessaty (Smith: R4536-37). The meeting lasted fifteen to t'wenty minutes (Smith: RA530). The men exchanged contact information and Sweet said that he would be in touch with Smith (rd.). On their way back to Srnith's car ofl the Upper West Side of Manhattan, Smith and the defendant discussed theit meeting with Sweefi "ffie were looking for payday and you L.ow, we couldn't wait {trt Sweet[J to get back in touch with us so rfrre can staft making some money" (Smith: RA543). Rob Sweet, too, was iooking forward to doing business with Smith. At a later Sweet Deal meeting attended by other co- conspirators, includirlg mortgage brolqer SOPHIA $flELSH, Sweet said that Smith - who was "Al G^rt's boy, [his] friend" Sflelsh: RA738) - "was going to be able to wash the money'' thatthey stole Qd.). A few weeks later, in mid-January 2008, Smith was having hrnch with his business parffrer and his father at the John Stteet Bar in Lower Manhattan when he teceived a caJl ftorn Sweet, who informed him that the defendant and Sweet were in the atea and would Iike to fteet (Smith: RA544-45). Srnith walked upstafus fiom the basement-level testaurant orto the street, where he found the two men standing on the sidewalk in front of the restautant (rd), Sweet told Smith that "everything was coming together and that . . . he was going to be . . . moving forwatd with . . . his closings ot what have you" (Sweer RA545-46). Smith received a series of checks frorn the Eweet Deal teal estate closings, which he deposited into nro bank accounts owned by his company, the Martland Gtoup (Smith: RA553-54). These checks were worth a total of ff1126J70.00 (Smitl1 RA595). Against these deposits, Smith withdrew a total of $650,000.00 in cash for Sweet (Smith: RA596). In addition, bI check and wire transfet, Smith distributed $277,500.00 of the mofley received fronr Sweet to the defendant's company, the Virtual Auto Group (Smith: R4596-97). Smitl was instructed to do so by Sweet and the defendant (Smithr RA597).lhis surn included a $118,000.00 "findet's fee" that was paid to the defendant for introducing Sweet to Smith (Smith: RA660). Tr+B DgF'BNoANT's CAsB The defendant AIFRED EDWARD GARY testified in his own defense (Grrf RA99t-1177). Regarding People's Exhibit 17C, the fraudulent verification of ernployrnent fotrn fot Ftank Martiri, the defendant claimed that he did not veti$r Martin's ernployment at the defendant's cornpany and that the handwriting on the form did not belong to him or anyone familiar to him (Gaty: RA1116-18). The defendant adrnitted, however, that the document was faxed from his office (Guryt RALL7o-72). Regarding his Decemb er 2007 meeting in Manhattan with Smith and Sweet, the defendant acknowledged that he had set up the meeting (Gary: RA1026-27). The defeodant claimed, however, that he was not present when Sweet and Smith discussed cashing the checks from Sweet's teal estate closings. According to the defendanq although Sweet and Smith had only just met, Sweet asked the defendant to excuse himself ftom the meeting following the intoductions (Gur:n RA1029-30). The defendant testified that the only topic he heard discussed at the meeting befote he left the othet two rnen alone was I(legg Electronics, a company fot which Smith was seeking investots (Gary: RA102+25, 1031). While the defendant was present, he claimed, there was flo d"iscussion of Sweet receiving cash back ftom any checks (Gary: RA1o3o), Regarding the next meeting of the three men, in January 2008, the defendant claimed that he was having Iunch with Smith at the restaurant in Lowet Manhattan rvhen Sweet showed up, alone, to talk to Smith (G^ry, RA1033-34). The defendant testified that he did not take part in this second conyetsation between Sweet and Smith (Gary: RA1034). And, also contaty to Smith's testimorry, the defendant claimed that he had never insisted on sharing ten percent of the proceeds ftom the check-cashiflg affangemeflt. Instead, the defendant stated that the agreement was to pay hirn a flatfee of $50,000 in the event that Sweet invested rn I{egg Electronics or took part in another deal concerning a medium-term flote, or '1\zfIN," with Smiltl (Gary: RAl035). 10 Similady, a mutual ftiend of the defendant and Smith, OWEN MAY, testified that Smith was ftylng to taise money to invest in Klegg Elecuonics (I\day: RA919-25). In addition, May claimed that by happenstance he saw Sweet with the defendant on one occasion and that Sweet had asked May at that time to "[t]ell Tony lsmith] that I am [oo[rt, it is obvious that Stnith's aflswer pertains to just one rnoney transfer of $147,000, supposedly for the purchase of a car. In any event, Smith's a'firareness of the defendant's illegal activity is not televant - only the defendant)s tteflt rea mattets fot the puqposes of this appeal. Moteovet, at the time Smith had "no reason" to believe that the defendant was involved in illegal activity, Smith did not hnow what the defendant knew, i,e,,thathe had ptovided false vedfication forrns to Sweet in otder to help his stravr buyets obtain mottgage loans. Thus, Srnith's atswef orl cross-examination does not refute - or even truly conttadict - the overwhelrning evidence that the defendant was an active paticipant in the Sweet Deal conspiracy. In any event, the coutt, as the ttier of fact, was entitled to weigh Srnith's answer against that ovetwhelming evidence, and there is no indication that the evidence rvas weighed improperly. According to the defendant, he was an honest car-dealer whose misfortune it was to be - repeatedly - in the wrong place at the wrong time with the wong friends, The tdal tecord shows, however, that t]re defendant was far ftorn the victim of citcurnstance that he now porftays himself to have been. Rather, the evidence 35 adduced at his trial demonstrates that the defendant eagedy participated in, and was substantially enriched by, the Sweet Deal conspiracy, The defendaat attended at least one rneeting where Sweet Dealls frauduient real estate dealings were discussed. Thereafter, on three separate occasions, the defendant ptovided false employment verification forns that enabled the conspitacy's thefts. And he helped the conspiracy to "'waslt'' and distribute the proceeds of its thefts by, arnong other things, introducing James Robert Sweet to Toay Smith. In fact, the trial record shows that the defendant wanted to be even firore involved in the conspiracy than he was. Thus, the evid.ence of the defendant's guilt of fourth-degree coflspiracy was legally sufficient and, indeed, overwhelming. Accotdingly, thete is flo ieason for this Coutt to upset the Appellate Division's ordet affuming the defendant's iudgment of conviction. 36 PonqrTHREp Trre T[rar Courr's Vrnnrcr Was Not RBpucNaNt (axswrruNc Pou'rr III op nsrsArDAlJT's sRreE'). .. .., _ .. _ . There is no legal basis for the defendant's argument that the trial court's vetdict -\iias iep-rigiiaiit. "A vetdict is inconsistent or tepugnant . . . whete tlre defendant is convicted of an offense containing an esseatial elernent that the jury has found the defendant did not commit." Peopte u. Tr@pier,B7 N,Y.2d 55, 58 (1995); see aln Peopte u. GoodJriend,l00 A.D.2d 781, 781 (1st Dept 1984) ('[]t is not appropriate for a court to review the entire tecotd of the trial to try to second-guess the jwy's mental processes or to resolve inconsistencies in the verdicts.') Giti"S People u. Tucker, 55 N.Y,2d 1 [1981]), afiFd, 64 N.Y,2d 695 (1984). Hete, the defendant claims that the trial court's not-guilty verdicts on the moaey iaunder{ng and scheme to defraud counts are inconsistent with the Srilty verd.ict on the conspiracy count. The defendant is wrong. These three crim.es shate no cornmon elernents. A defendant is guilty of money laundering in the first degree penal Law S 470,20[11tb]F{tAjt*D when he: (t) conducts a frnancial transaction with the proceeds of a class A, B or C felony offense; (2) knowing that the transaction is designed to avoid any transaction tepoting requitement imposed by law; and (3) the value of the property involved exceeds one million dollars. A defendant is guilty of scheme to defraud i.n the first degree (Penal Law $ 190.65[1][b]) when he: (1) engages in a scherne constitufiag a systetnatic ongoing course of conducq (2) with the intent to JI defraud more than one person or to obtain property from mote than one person by false ot fraudulent preteoses, representations ot promises; and (3) so obtains propeffy with a value in excess of one thousand dollats from one or fnore of such petsons, at least one of whom has been identified. CJ.I.2d C{,Y.) Penal Law $ 190.65(1)ft), By contrast, fhe elements of fourth-degtee conspitacy ate: (1) ao agreernent to comrnit conduct constinrting a class B or C felouy offense; (2) wifh the intent to cause the cornmission of such conducf, and (3) afl overt act in fiu'therance of the coflspiracy. Penal Law $ 105.10(t). The scheme element in the offense of scheme to defraud should not be confused with the agreemeflt elernent in the offense of conspfuacy. See People a. I{ronberg 277 A.D,zd 182, 182 (lst Dept. 2000). Nor is the intent to deftaud thc sarne as the intent to cause the commission of a class B or C felony - in this case, grand larceny in the second degtee. In short, the elements of the crimes of conspitacy and scheme to defraud are substafltially differenr Furthernore, an acquittal of the money laundedng courrts does not rnean that the defendant did not have the intent to help Sweet Deal commit grand Iarceny in the second degtee, The indictrnent cleady stated that the Sweet DeaI conspiracy was, essentially, a conspifacy to steal money by means of false represefltations, such as tlrose contained in People's Bxhibit 17C (AA1 29), nota conspfuacy to launder the mofley, as the defendant's argument prcsupposes. In arry even! even if this wece a conspitacy to commit money-laundering, defendant need not have been convicted of the object crime of the conspitacy in ordet to be found guilty of patticipating in the 3B corrspiracy itself. See People a. McGea,4g N.Y.zd 48, 57 (1979) ('Conduct that will support a conspiracy will not perforce give dse to accessorial liability.'). In sum, the ttiat record shows also that the court's verdict \fias flot inconsistent or repugnant because the conspiracy count shated no elements with the counts on which the defendant was acquiued. Thus, there is no basis to overtuflr the defendant's conviction or.vacate his order of restitution. Ponu Foun TsB DnrrNprut's Cowlarxx Asour rHB Th:ar, Counfs EuppNrltny Rur-rNGS Axr, l(rrnour MnruT, ANo ANv Ennon Was Hammnss (ANSwERTNTG onrrNoaNt's eRrEr, PoiNT_f.\L __ _, _ The defendant atgues that two of the trial court's eidentiary rulings $/ere effoneous and deptived him of his constitutional right to confront the witnesses against him. First, he contends that the court should not have allowed Sophia Welsh to testi{r that she heard James Robert Sweet say that Tony Srnith was the defendant s "bot'' and that Smith was going to "wash" the money that Sweet Deal had stolen (DB64). Admitting such testimony as the statement of a co-consp lntotin futtherance of the conspitacy was error, the defendant argues, because the prosecution failed to establish a ptirna facie case of a consphacy that included the tlefendant @865-67). Second, the defendrnt contends that the tdal court emed in denying his motion to strike the entire testimony of Catlos Inzary, who invoked his tight against self- incdrnination when asked questions on cross-examination about the immigation- related offense he had admitted to during his direct examination. In both instances, howevei, the court followed the law and, thus, providently exercised its discretion in ding as it did. During Sophia Welsh's direct testimony, she recalled that James Robet Sweet had stated that Tony Smith, who was the defendant's "boy" (riu friend), "was going to be abie to wash the money" (Welsh: RA73B), The comment was allowed into evidence as the statement of a co-corlspirator in the course and furtherance of 4A the conspiracy (RA754-55). See People u. Bac Traru, 80 N.Y.zd 170, t79 (1992) ("A declaration by a co-conspiratot dudng the coutse and in futtherance of the coflspiracy is admissible against anothet co-conspitator as an exception to the heatsay ro1..'). This ruling was justified because, fot the reasons descdbed in detail in Point Two, supra, the proof of the defendaflt's participation in the Sweet Deal conspitacy was overwhelming. Ind.eed, there was evidence that on thtee separate occasions the defendant provided false verification of employment forms, which enabled thefts from morrsage-lenditg institutions, to aflother rnember of the conspirary. And prosecutors established that the defendant was instumental in aranging the laundering and distribution of the proceeds of these thefts by, among othet things, introducingJarnes Robert Sweet to Tony Smith, In any eveflt, allowing the comment into evidence was, at most, an efiror whose impact was truly harmless. Sweet's statement to Welsh concerned the defendant's friendship -nrifh Smith and Smith's agreement to "wash" the proceeds of Sweet Deal's crinres. The defendant was acquitted of all money-laundering charges and has never denied that he and Srnith were friends. Thus, it cannot be said that there is any reasonable possibility that the admission of Sweet's statement conttibuted to the outcome of the defendant's tria"l in any wny. See Peapk u. Crirnmin,r,36 N.Y,2d 230,237 (1e75). Similarly, the ttial court acted well within its discretion in finding that the questions to Carlos lrtzarry regatding his irlrnigration offense involved only "a 47 collateral issue" and refusing to grant the dtastic remedy of striking ltizary's testimony in its entirety 8A512). See Peoph u. Vargaq 88 N.Y.2d 363,381(1996); Pnpk u. Siegel,87 N.Y.2d 536, 543-45 (1995). A defendant's right to confrontation is not violated by a witness's invocation of the dght against self-incrimination on a collateral issue. See People a. Cltin,67 N,Y.2d 22,2*29 (1986). In any even! as the defendant comectly concedes, in ageeing to dtaw an advetse infetence against ltizatty based upofl his tefusal to answet such questions, the trial coutt did take an approptiate cutative action (I)B69). In view of this curative action, it cannot be said that there uras any reasonable possibility that the defendant's inability to cross-examine kla,auy on the subject of his alleged immigration offease conttibuted to dre uial court's gilty verdict. See Crirnmins, 36 N.Y.2d ^t 237. Accordingly, the Appellate Dirrision ordet affurning the defendant's iudgment of conviction should be afftmed. 42 CoLqcrusloN TuB Appp,matn DlvrsroN's onnpn Aprmaarxc rHE DsF'pNpANfs Juocnauwr or CoNvrcrroN Srroum BEAnrlruEio. _ _ _ Dated: Mineola, New York February 4,201,5 Respectfrrlly submitted, Madeline Singas Acting Disuict Attorney, Nassau Counry AuomEforRespondent 262Old, Country Road Mineol4 NewYork 11501 (516) s71-3800 TammyJ. Smiley Jason R. Richatds As sis tant Dis trict Attorneys Of Counsel By, Assistant Disttict Afforney 43 - { .... sTATE oF NEwyonrlf , couNry oF NAS*A, i tt'' MIRIAM R. MANNO, being duly sworn, deposes and says that: Deponent is not a party to the action and is over 18 years of age' On February 4, 2015, deponent served three copies of the within RESPONDENT'S BRIEF and three copies of the separately bound RESPONDENT'S APPENDIX (VOLUMES I and ll), upon FAHRINGER & DUBNO, HERALD PRICE FAHRINGER, ESQ. and ERICA T. DUBNO, ESQ,, Of Counsel, attorneys for '.,'''-,.'.'.'. Defendant-Appellant, ALFRED GARY, by sending a copy of the same by FedEx Express, directed to said attorneys for the within named defendant-appellant at 120 East 56th Street, Suite 1150, New York, New York, 1A022, that being the address within the state designated by him/her/them for that purpose upon the preceding papers in this action, or the place where he/she kept an office, between which places there then was and now is a regular communication by mail. /s/ffi Sworn to before me this 4th day of February, 2015 lsl MARIELMURPHY NOTARY PUBUC $TATE OF hIE}\iYORK t-lA$sAU couNu uc. #01MU4939165 COMM. EXP T