Opinion
February 28, 1995
Appeal from the Supreme Court, New York County (John A.K. Bradley, J.).
The Attorney-General had jurisdiction to prosecute this case because defendant's investment scheme came within the broad definition of "securities" (In re Energy Sys. Equip. Leasing Sec. Litig., 642 F. Supp. 718, 732-739; see also, All Seasons Resorts v. Abrams, 68 N.Y.2d 81).
The jury's verdict was based on sufficient, indeed overwhelming, evidence that defendant induced his victims to invest their money in a worthless tax shelter by making many knowing misrepresentations, including that the "Energy Brain" device would generate income, had been honestly appraised, and was valued on the basis of an arm's-length transaction.
The court did not violate the then-existing provision of CPL 270.30 authorizing the selection of not more than four alternate jurors. During jury selection, at a time when 12 regular jurors and only one alternate had been sworn, two regular jurors became disqualified. The court used the sole alternate to replace the 11th juror, and, in effect, reopened the selection of regular jurors to select a new 12th juror, who, contrary to defendant's position, was never an alternate. The court proceeded to select four more alternates, and three of these alternates ultimately replaced disqualified regular jurors. The third of this group of alternates was actually the fourth alternate, counting the original first alternate who replaced the original 11th juror, but he was never, as defendant maintains, an illegal fifth alternate, because, as we have determined, the original 12th juror was replaced by a new 12th juror who entered "laterally", without being advanced from the status of alternate.
The record of the trial and the three post-conviction motions supports the court's primarily factual findings that there were no Rosario violations in this case.
Testimony about misrepresentations by financial planners selling defendant's investment product was relevant and was obviously not offered for its truth, and therefore admissible as relevant to the victims' state of mind (People v. Ricco, 56 N.Y.2d 320, 328).
The People's summation featured fair responses to defense arguments and did not exceed the broad bounds of permissible advocacy (People v. Galloway, 54 N.Y.2d 396). In any event, the summation could not have deprived defendant of a fair trial given the overwhelming evidence of guilt.
Defendant's objections to the court's charge are largely unpreserved (see, People v. Whalen, 59 N.Y.2d 273, 280). In any event, we find that the charge as a whole adequately conveyed the appropriate standards (People v. Canty, 60 N.Y.2d 830, 831-832).
Restitution was correctly determined, there being adequate trial evidence of the total amount taken from all investors in defendant's scheme, and no request for a hearing having been made (Penal Law § 60.27).
We have reviewed the remaining arguments raised on defendant's direct and post-conviction appeals and find them to be without merit.
Concur — Sullivan, J.P., Rosenberger, Wallach and Rubin, JJ.