The People, Respondent,v.Lawrence P. Frumusa,, Appellant.BriefN.Y.May 3, 2017 To Be Argued By: DREW R. DuBRIN Time Requested: 10 Minutes APL-2016-00065 Court of Appeals State of New York THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -vs- LAWRENCE P. FRUMUSA, Appellant. REPLY BRIEF FOR APPELLANT TIMOTHY P. DONAHER Monroe County Public Defender Attorney for Appellant BY: DREW R. DuBRIN Special Assistant Public Defender 10 N. Fitzhugh Street Rochester, New York 14614 Tel: (585) 753-4947 Fax: (585) 753-4234 Date Completed: July 15, 2016 TABLE OF CONTENTS PAGE TABLE OF AUTHORITIES i Reply Point: The People Have Conceded That The Contempt Order Posed Extreme Prejudice, And Their Arguments That The Contempt Order Had A Probative Worth That Is Sufficient To Overcome Its Prejudice Are Without Merit. 1 A. The People Have Conceded That The Contempt Order Posed Tremendous Prejudice. 1 B. The People’s Arguments That The Contempt Order Had A Probative Value Sufficient To Overcome Its Prejudicial Effect Have No Merit. 2 C. That Both Lower Courts Determined That The Contempt Order Was Admissible Does Not Insulate The Determination From Review By This Court. 6 CONCLUSION 9 i TABLE OF AUTHORITIES State Cases People v Alvino, 71 NY2d 233 (1987) ........................................................................................... 7 People v Chesler, 50 NY2d 203 (1980) ........................................................................................... 4 People v Conyers, 52 NY2d 454 (1981) ........................................................................................... 2 People v DiPippo, 27 NY3d 127 (2016) ........................................................................................... 7 People v Frumusa, 134 AD3d 1503 (4th Dept 2015) ........................................................................ 2 People v Green, 5 NY3d 538 (2005) ............................................................................................. 4 People v Gruden, 42 NY2d 214 (1977) ........................................................................................... 2 People v Resek, 3 NY3d 385 (2004) ......................................................................................... 1, 3 People v Ricchiuti, 93 AD2d 842 (2d Dept 1983) ............................................................................. 4 People v Smith, -- NY3d --, 2016 NY Slip Op 05061, *9 (2016) ................................................... 7 People v Taylor, 26 NY3d 217 (2015) ........................................................................................... 7 People v Williams, 56 NY2d 236, 237 (1982) ...................................................................................... 1 State Statute Penal Law § 155.05 (1) ............................................................................................ 4 1 Reply Point: The People Have Conceded That The Contempt Order Posed Extreme Prejudice, And Their Arguments That The Contempt Order Had A Probative Worth That Is Sufficient To Overcome Its Prejudice Are Without Merit. A. The People Have Conceded That The Contempt Order Posed Tremendous Prejudice. The admissibility of evidence depends not only on the evidence’s probative worth, but also on its potential for prejudice (see People v Resek, 3 NY3d 385, 387 [2004]). Indeed, this Court has held that where a trial court rules on evidence’s admissibility based solely on its relevance, without regard to its potential prejudice, the trial court commits an error of law (People v Williams, 56 NY2d 236, 237 [1982]). Notwithstanding this bedrock principle, the People in their brief to this Court argue that the County Court properly admitted Justice Fisher’s civil contempt order at Mr. Frumusa’s criminal trial simply because, they contend, the evidence was relevant to Mr. Frumusa’s state of mind. They summarize their contention saying: “The civil order was properly admitted because it was relevant to show the defendant’s knowledge and lack of mistake in not only misappropriating funds, but in keeping and refusing to return the funds.” (Respondent’s Brief at 9.) At no point in their brief do the People dispute Mr. Frumusa’s contention that the contempt order posed prejudice that was, in the words of the dissenting justices of the Appellate Division, “nothing other than 2 obvious and extreme” (People v Frumusa, 134 AD3d 1503, 1507 [4th Dept 2015][Centra and Lindley, JJ., dissenting]). There is good reason why the People have not challenged Mr. Frumusa’s contention concerning the contempt order’s prejudice. In the context of the People’s case, the contempt order revealed Justice Fisher’s finding that Mr. Frumusa committed the very crime he was on trial for and thus had the decided tendency to compel the jury to defer to a justice’s findings on the ultimate question of guilt or innocence rather than make its own findings based upon an independent review of the evidence properly before it. The contempt order’s admission paved the way for the prosecutor’s impermissible argument to the jury on summation that it should hold Mr. Frumusa responsible for the charged theft as Justice Fisher had tried to do with the contempt order. And the County Court gave no instruction to the jury that lessened the order’s prejudicial effect. Having chosen to altogether to ignore Mr. Frumusa’s argument that the contempt order presented extreme prejudice, the People should be deemed to concede this point (see People v Gruden, 42 NY2d 214, 216 [1977]). B. The People’s Arguments That The Contempt Order Had A Probative Value Sufficient To Overcome Its Prejudicial Effect Have No Merit. Given their concession, the only remaining question for this Court is whether the contempt order was so vitally important to the People’s case that, despite its tremendous prejudice, the trial court could properly admit it (see People 3 v Conyers, 52 NY2d 454, 459 [1981]; Resek, 3 NY3d at 390). In seeking to answer this question, the People do not claim that there was any probative worth to the contempt order’s particular finding that Mr. Frumusa committed the very crime he was charged with. Rather, the People argue only that the contempt order showed that Mr. Frumusa had the knowledge and intent necessary for a larceny when he directed the credit card proceeds into his outside accounts or when he retained them there because, they contend, the contempt order shows that Mr. Frumusa had been previously ordered, on July 27, 2009, to return the funds and thus had been “explicitly and repeatedly told the money he appropriated was not his.” (Respondent’s Brief at 11 [emphasis added]). The People contend that from such a showing, the jury could infer that Mr. Frumusa intended to permanently deprive WHD of the credit card funds. This theory of probative worth fails. There was no issue at trial as to whether Mr. Frumusa knew that the credit card proceeds were “not his.” Mr. Frumusa conceded he knew the funds belonged to WHD (and was not free to use the money to benefit himself or his other companies). He instead contended that he took control of the funds believing he had WHD’s permission, notwithstanding Justice Fisher’s various orders enjoining him from accessing company money for any reason. More specifically, Mr. Frumusa maintained that he believed he had WHD’s (though not Justice Fisher’s) permission to use the credit card proceeds because he was using them only to 4 manage the company – to insure that company bills were paid on time – as he had been authorized by the company’s operating agreement. Though his actions violated court order, they were nonetheless committed without a larcenous intent and therefore not a theft (A 294; see Penal Law § 155.05 [1]; People v Chesler, 50 NY2d 203, 207-210 [1980]; People v Green, 5 NY3d 538, 542 [2005] [good-faith claim of right negates larcenous intent]; People v Ricchiuti, 93 AD2d 842, 844 [2d Dept 1983] [a component of larceny’s requirement that the defendant’s dominion and control over property is “wholly inconsistent” with the rights of the owner is an awareness that the taking is without the owner’s consent]). Moreover, the contempt order had no, or very marginal, probative value on the specific question of whether Mr. Frumusa had been directed by court order to return the company funds and on the broader question of whether Mr. Frumusa’s failure to return the funds as directed by court order reflected an intent to permanently deprive WHD of that money. As argued in Mr. Frumusa’s main brief, there are five reasons for this: (1) The contempt order reveals only a judicial finding that a court had ordered Mr. Frumusa to return the money (Appellant’s brief at 31-33); (2) The court order directing Mr. Frumusa to return the money that the judicial finding refers to was issued on July 27, 2009, only after the time period alleged in the indictment (Appellant’s brief at 33); 5 (3) The contempt order was not needed to prove that Mr. Frumusa had been previously ordered to return the money, as that fact was not disputed by Mr. Frumusa and was conclusively established by various other orders of receivership and injunction properly admitted at trial (Appellant’s brief at 33-35); (4) The People could have proven that the July 27th order directed the Frumusa companies to return the money without the prejudicial contempt order by introducing the July 27th order itself (Appellant’s brief at 35); and (5) By the time the July 27th order was issued, both Mr. Frumusa and his other companies were broke and thus their failure to return the money is too ambiguous to have any real probative worth on the question of intent (Appellant’s brief at 35-37). The People’s brief warrants further discussion only with respect to the fourth and fifth reasons enumerated above. The People have given no explanation for why the trial prosecutor did not simply introduce the July 27th order itself – rather than the highly prejudicial contempt order -- to prove that the July 27th order directed Mr. Frumusa (or his companies) to return the credit card proceeds. The People’s silence is quite telling, as, from this record, its seems apparent that the prosecutor offered the contempt order because, unlike the July 27th order, the contempt order disclosed Justice Fisher’s irrelevant and highly prejudicial finding that Mr. Frumusa committed the 6 very theft he was on trial for and provided fodder for impermissible summation remarks urging the jury to follow Justice Fisher’s lead and hold Mr. Frumusa accountable for stealing the credit card proceeds. Nor have the People presented any argument that Mr. Frumusa or his companies were capable of returning the credit card funds in response to the July 27th or the subsequently issued contempt order. In particular, the People point to nothing in the record that shows that by the time the July 27th order was issued, either Mr. Frumusa or his companies could pay back the money, even though, by that date, Mr. Frumusa had filed for personal bankruptcy and records show that the PNC accounts had been depleted. Thus, there is no merit to the People’s contention that the contempt order had probative worth sufficient to overcome its enormous prejudicial effect. C. That Both Lower Courts Determined That The Contempt Order Was Admissible Does Not Insulate The Determination From Review By This Court. The People press that the trial court’s determination on the contempt order’s admissibility was entirely discretionary in nature and therefore cannot be disturbed because, they contend, there was no abuse of discretion (Respondent’s brief at 14- 15). In arguing that there was no abuse of discretion, the People point to the “fact that a County Court Judge and three Appellate Division Justices decided one way, while two other Appellate Division Justices decided another way,” which they say 7 “is evidence that reasonable minds may differ on the issue” (Respondent’s brief at 15). There is no merit to this argument either. First of all, the contempt order was inadmissible not only because its prejudicial effect far outweighed its probative worth. It was also inadmissible because it was wholly irrelevant, which means that the County Court had no discretion to admit it (see People v Alvino, 71 NY2d 233, 242 [1987]). Second of all, the People are wrong to suggest that the fact that the courts below determined that the contempt order was sufficiently probative ipso facto demonstrates that the determination was a reasonable one and thus not an abuse of discretion. This Court has many times, at least implicitly, rejected such a circular argument (see e.g. People v Smith, -- NY3d --, 2016 NY Slip Op 05061, *9 [2016] [“it was an abuse of discretion to restrict defendant's right to cross-examine key prosecution witnesses based on a finding that some unidentified prejudice outweighed the probative value of the questions”; order of the Appellate Division reversed and new trial ordered]; People v DiPippo, 27 NY3d 127 [2016] [trial court abused its discretion by precluding defendant from introducing evidence of third-party culpability; order of the Appellate Division reversed and new trial ordered]; People v Taylor, 26 NY3d 217, 219 [2015] [trial court abused its discretion by failing to provide a deliberating jury with a substantial portion of evidence it had requested and then suggesting to the jury that there was no other 8 evidence relating to its request; order of the Appellate Division reversed and new trial ordered]). Thus, that both courts below determined that the contempt order was admissible does not insulate the determination from review by this Court. CONCLUSION The County Court committed an error of law in admitting the irrelevant (or very marginally relevant) and highly prejudicial civil contempt order. Because that error was hannful, the order of the Appellate Division must be reversed and a new trial must be ordered. Dated: July 15, 2016 9 Respectfully submitted, TIMOTHY P. DONAHER Monroe County Public Defender omey for Appellant (2-) Special Assistant Public Defender 10 N. Fitzhugh Street Rochester, New York 14614 (585) 753-4947