SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

713 

KA 10-00358 

PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, VALENTINO, AND DEJOSEPH, JJ.

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

OLE PETTERSEN, DEFENDANT-APPELLANT.

 

PETER J. DIGIORGIO, JR., UTICA, FOR DEFENDANT-APPELLANT.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (DANIEL J. JAWOR OF

COUNSEL), FOR RESPONDENT. 

 

Appeal from a judgment of the Oneida County Court (Barry M.

Donalty, J.), rendered May 27, 2009. The judgment convicted

defendant, upon a jury verdict, of offering a false instrument for

filing in the first degree (three counts). 

It is hereby ORDERED that the judgment so appealed from is

unanimously modified on the law by vacating the amount of restitution

ordered and as modified the judgment is affirmed. 

Memorandum: Defendant appeals from a judgment convicting him,

upon a jury verdict, of three counts of offering a false instrument

for filing in the first degree (Penal Law § 175.35 [1]) and ordering

him to pay restitution in the amount of $675,984. Defendant’s

conviction stems from allegations of fraudulent Medicaid billing

relating to his operation of a substance abuse and methadone treatment

facility. Specifically, defendant charged certain clients for

counseling services in such a way that the services could be billed at

a higher rate. 

We reject defendant’s contention that County Court’s failure to

charge the jury on mistake of law deprived him of a fair trial. The

mistake of law defense set forth in Penal Law § 15.20 (2) (a) relieves

a person of criminal liability if he or she engaged in such conduct in

reliance upon an official statement of the law contained in a statute

or other enactment. Defendant contends that evidence demonstrating

his good faith misunderstanding of complex billing regulations

warranted a mistake of law charge. In People v Marrero (69 NY2d 382,

387), the Court of Appeals noted that the mistake of law defense “was

intended to be a very narrow escape valve,” and that it applies only

where “an individual demonstrates an effort to learn what the law is,

relies on the validity of that law and, later, it is determined that

there was a mistake in the law itself” (id. at 390). That is not the

case here. In any event, we note that the court properly instructed
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KA 10-00358 

the jury on the issue of specific intent, thereby allowing the jury to

consider whether defendant’s good-faith belief that his billing

practice was legal prevented him from forming a specific intent to

defraud.

Defendant further failed to demonstrate that he relied on an

official statement. Contrary to defendant’s contention, we conclude

that Penal Law § 15.20 (2) (d) does not apply in this case. Penal Law

§ 15.20 (2) (d) relieves a person of criminal liability if he or she

engaged in such conduct in reliance upon “an interpretation of the

statute or law relating to the offense, officially made or issued by a

public servant, agency or body legally charged or empowered with the

responsibility or privilege of administering, enforcing or

interpreting such statute or law.” No government official issued a

statement authorizing the conduct in question and, indeed, defendant

was warned by governmental officials that his conduct was improper

(see id.; see also Marrero, 69 NY2d at 385-386).

We further conclude that the court did not err in denying

defendant’s request for a circumstantial evidence charge inasmuch as

the People presented both direct and circumstantial evidence (see

People v Smith, 90 AD3d 1565, 1566, lv denied 18 NY3d 998; People v

Stanford, 87 AD3d 1367, 1369, lv denied 18 NY3d 886). Contrary to

defendant’s contention, the fact that the element of intent was

established solely through circumstantial evidence did not require the

court to give a circumstantial evidence charge (see People v Saxton,

75 AD3d 755, 758, lv denied 15 NY3d 924).

We reject defendant’s contention that the verdict is against the

weight of the evidence with respect to his intent to defraud (see

Penal Law § 175.35). Viewing the evidence in light of the elements of

the crime as charged to the jury (see People v Danielson, 9 NY3d 342,

349), we conclude that the verdict is not against the weight of the

evidence (see generally People v Bleakley, 69 NY2d 490, 495).

As defendant correctly concedes, by failing to object to the

prosecutor’s remarks on summation, defendant failed to preserve for

our review his contention that prosecutorial misconduct denied him a

fair trial (see People v Johnson, 121 AD3d 1578, 1579; People v King,

53 AD3d 1105, 1105, lv denied 11 NY3d 790). We decline to exercise

our power to review that contention as a matter of discretion in the

interest of justice (see CPL 470.15 [6] [a]). 

We agree with defendant, however, that the People failed to meet

their burden of establishing the amount of restitution to be paid by

defendant. At the restitution hearing held pursuant to Penal Law §

60.27 (2), the People had the burden of proving “the amount of

defendant’s gain from the commission of the offense[s] . . . based

upon a preponderance of the evidence” (CPL 400.30 [4]; see People v

Consalvo, 89 NY2d 140, 145). An auditor for the Attorney General

testified at the hearing that, based on her review of the records of

52 clients, defendant owed restitution in the amount of $675,984. 

Those client records, however, were not admitted in evidence at the

restitution hearing. Moreover, the People did not seek to incorporate
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KA 10-00358 

any of the trial testimony to support the restitution claim, nor did

they offer any evidence other than the auditor’s testimony and two

spreadsheets summarizing her findings based on the client records. 

Without the admission in evidence of the client records, the auditor’s

testimony regarding defendant’s gain was conclusory and lacked a

proper evidentiary basis (see People v Wilson, 59 AD3d 807, 808-809;

see also People v Pugliese, 113 AD3d 1112, 1113, lv denied 23 NY3d

1066). We therefore modify the order by vacating the amount of

restitution ordered. In view of our determination, we do not address

defendant’s remaining contentions regarding restitution.

Entered: July 10, 2015 Frances E. Cafarell

Clerk of the Court