Conviction Overturned

A criminal conviction against an attorney and his law firm was reversed on grounds of insufficient evidence by the New York Appellate Division for the Second Judicial Department. The convictions involved charges of a scheme to fraud and filing false instruments in connection with personal injury claims. The court concluded:

The People failed to prove that the defendants obtained propertyfrom any person by means of “a systematic ongoing course of conductwith intent to defraud.” The only proof as to any discrete sums ofmoney and/or property obtained from anyone, other than of transfers andpayments to and from the defendants themselves, was testimony fromthree injured accident victims that they received “settlements,”apparently from insurance companies, or payments from the defendant LawOffices of Silverman & Taylor (hereinafter S & T). However,there is no proof that this money was obtained by false or fraudulentpretenses.

In fact, all of these accident victims testified at trial thatthey were involved in real accidents and suffered property damageand/or pain and suffering as a result thereof. Thus, there was a primafacie legitimate basis for the insurers to make those payments. ThePeople did not challenge the legitimacy of the accidents.

Five accident victims testified at trial as to their visits tovarious medical clinics, individual chiropractors, therapists, andacupuncturists. Although the People’s expert witness, physiatristPhilip Harris, testified that, in his opinion, some of the careprovided was excessive or unnecessary, neither he nor anyone elseprovided proof as to any amounts paid for that care, let alone how muchof it was excessive or even unwarranted. Harris also admitted thatthere can be reasonable disagreements as to the treatments and or teststhat were warranted. Crucially, he refused to comment as to whether ornot any of the accident victims who testified were or were not injuredand/or whether or not they needed at least some of the treatmentprovided. In short, there was no testimony that “property with a valuein excess of one thousand dollars” was obtained “from more than oneperson by false or fraudulent pretenses, representations or promises,”let alone proof of an intent to defraud.

The evidence was also insufficient as to the four counts of offering a false instrument for filing in the first degree (see PenalLaw § 175.35). Those counts charged that, on four different dates, and”knowing that a written instrument, namely a retainer statement,contained a false statement and false information, and with the intent to defraud thestate and any political subdivision, public authority, and publicbenefit corporation of the state, [the defendants] offered andpresented it to a public office, namely, the New York State Office ofCourt Administration (OCA) with the knowledge and belief that it wouldbe filed with, registered and recorded in, and otherwise become a partof the records of OCA” [emphasis added].

(Mike Frisch)