SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

962 

KA 15-01774 

PRESENT: SMITH, J.P., CARNI, LINDLEY, DEJOSEPH, AND SCUDDER, JJ. 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

ROGER W. BARTO, DEFENDANT-APPELLANT. 

 

MULDOON, GETZ & RESTON, ROCHESTER (GARY MULDOON OF COUNSEL), FOR

DEFENDANT-APPELLANT. 

BARRY L. PORSCH, DISTRICT ATTORNEY, WATERLOO, FOR RESPONDENT. 

 

Appeal from a judgment of the Seneca County Court (Dennis F.

Bender, J.), rendered October 13, 2015. The judgment convicted

defendant, upon a jury verdict, of insurance fraud in the third

degree, falsifying business records in the first degree, defrauding

the government and falsely reporting an incident in the third degree. 

It is hereby ORDERED that the judgment so appealed from is

unanimously affirmed and the matter is remitted to Seneca County Court

for proceedings pursuant to CPL 460.50 (5). 

Memorandum: Defendant appeals from a judgment convicting him

following a jury trial of insurance fraud in the third degree (Penal

Law § 176.20), falsifying business records in the first degree 

(§ 175.10), defrauding the government (§ 195.20), and falsely

reporting an incident in the third degree (§ 240.50 [3]). The charges

arose from allegations that defendant, while serving as an acting

Village Justice in Waterloo, falsely reported to the police that he

had been assaulted outside the courthouse after conducting an evening

arraignment. According to defendant, he had been approached from

behind by an unknown assailant and strangled with a ligature for

approximately 30 seconds before he was able to break free. The

assailant then struck defendant over the head with a hard object that

broke into pieces upon impact, causing defendant to fall to the ground

and lose consciousness. When he regained consciousness, defendant

called the police from his cell phone. The police arrived within

minutes to find defendant slumped on the ground outside the courthouse

door, leaning against a railing. Broken pieces of a porcelain toilet

tank lid were on the ground next to defendant. Although defendant had

no visible injuries, he was taken to the hospital, where he complained

of severe pain. While in the hospital, defendant underwent extensive

testing to determine the cause of his pain, but those tests—including

multiple CT scans, MRIs and X rays—showed nothing abnormal. 
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KA 15-01774 

Upon defendant’s discharge from the hospital, he was charged by a

sealed indictment with falsely reporting an incident in the third

degree, defrauding the government, falsifying business records in the

first degree, and insurance fraud in the third degree, among other

offenses. Those charges were based on the People’s theory that

defendant lied to the police about being attacked so that he could

obtain prescription pain medication. The matter proceeded to trial,

where the jury rendered a guilty verdict on all submitted counts. 

County Court sentenced defendant to six months in jail and five years

of probation. At sentencing, defendant paid restitution of $41,477.20

to Seneca County for the costs of his medical treatment. 

With respect to all counts, defendant contends generally that the

evidence is legally insufficient and that the verdict is against the

weight of the evidence because the People failed to prove beyond a

reasonable doubt that he lied to the police about being attacked. We

reject that contention. In our view, the medical evidence provides

compelling proof that defendant was not attacked as he had claimed,

and his varying accounts of the incident to the police further

undermined his credibility. As the People’s expert witnesses

testified, and as common sense dictates, a person who is struck over

the head with a porcelain toilet tank lid will sustain a discernible

injury, however minimal. Defendant, however, had no cuts or bruises

on his head, and extensive testing showed no internal injuries. 

Moreover, although defendant claimed to have been strangled with a

ligature for approximately 30 seconds, there were no ligature marks on

his neck and no petechial hemorrhage, which, according to the People’s

expert, one would expect to see on a person who had been attacked in

that manner. 

Viewing the evidence in the light most favorable to the People

(see People v Contes, 60 NY2d 620, 621), and affording them the

benefit of every favorable inference (see People v Bleakley, 69 NY2d

490, 495), we conclude that there is a “valid line of reasoning and

permissible inferences which could lead a rational person to the

conclusion reached by the jury on the basis of the evidence at trial”

(id.), i.e., that defendant falsely reported to the police that he had

been attacked, which is the underlying factual basis of all of the

charges. Viewing the evidence in light of the elements of the crimes

as charged to the jury (see People v Danielson, 9 NY3d 342, 349), we

further conclude that the verdict is not against the weight of the

evidence (see generally Bleakley, 69 NY2d at 495). Even assuming,

arguendo, that a different verdict would not have been unreasonable,

“the jury was in the best position to assess the credibility of the

witnesses,” including defendant, who took the stand at trial, and it

cannot be said that the jury failed to give the evidence the weight it

should be accorded (People v Orta, 12 AD3d 1147, 1147, lv denied 4

NY3d 801; see People v Kalinowski, 118 AD3d 1434, 1436, lv denied 23

NY3d 1064). 

We also reject defendant’s more specific contention that the

evidence is legally insufficient to support the charge of falsifying

business records in the first degree. A person commits that crime

when, with the intent to defraud, he or she “[m]akes or causes a false
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KA 15-01774 

entry in the business records of an enterprise” (Penal Law § 175.05

[1] [emphasis added]), and where the intent to defraud “includes an

intent to commit another crime or to aid or conceal the commission

thereof” (§ 175.10). Here, the false business record at issue is a 

C-2 workers’ compensation form filed with Seneca County by an

administrator employed by the Village of Waterloo. As defendant

correctly contends, he did not file the form himself, and there is no

evidence that he asked anyone to file it on his behalf. Nevertheless,

we conclude that it was reasonably foreseeable that a workers’

compensation form would be filed on defendant’s behalf as a result of

his claim that he had been injured during the course of his employment

(see generally People v DaCosta, 6 NY3d 181, 184), and the evidence is

therefore sufficient to establish that defendant caused the false

filing. Indeed, we conclude that the jury could reasonably find that

the filing of the false workers’ compensation form was integral to

defendant’s intent to defraud. 

Defendant’s remaining sufficiency challenge relates to the charge

of falsely reporting an incident in the third degree, which is

committed when one knowingly and “[g]ratuitously” reports to the

police an “alleged occurrence of an offense or incident which did not

in fact occur” (Penal Law § 240.50 [3] [a]). Defendant contends that

he did not gratuitously report the assault because the police

officers, upon arriving at the courthouse, asked him what happened,

and he did not therefore volunteer any information. It is undisputed,

however, that defendant initiated the police contact by calling 911

and asking that an officer be sent right away to the courthouse, and

that, upon the officers’ arrival, defendant answered their inevitable

questions about what happened. Under the circumstances, we conclude

that defendant gratuitously offered the false information to the

police, albeit in two stages. 

Defendant further contends that his sentence should be reduced in

the interest of justice because of inappropriate statements made by

the prosecutor at sentencing. Although we find the prosecutor’s

statements to be highly improper, it does not appear that they

influenced the court, which denied the prosecutor’s request to impose

the maximum sentence of 2a to 7 years in prison and instead sentenced

defendant to shock probation. Based on our review of the entire

record, we perceive no reason to exercise our discretion to modify

that sentence in the interest of justice (see CPL 470.15 [6] [b]). 

We have reviewed defendant’s remaining contentions and conclude

that they lack merit.

Entered: November 18, 2016 Frances E. Cafarell

Clerk of the Court