No Escape from Insurance Fraud Conviction

Claiming Loss of Property that Did Not Exist After a Fire Sends Insured to Jail

To successfully defraud an insurance company the fraudster must use a modicum of skill, intelligence, and effort. When an insured presents a claim for expensive property he did not own, and did not have sufficient income and assets to own, resulted in arrest and conviction of the insured in The People Of The State Of New York v. Terrell L. Murray, 2020 NY Slip Op 04255, 299 KA 14-00921, Supreme Court Of The State Of New York Appellate Division, Fourth Judicial Department (July 24, 2020). After the trial court convicted defendant Terrell L. Murray (Murray) upon a jury verdict of insurance fraud in the third degree and falsifying business records in the first degree. Murray appealed.

ANALYSIS

The conviction arises from the filing of an insurance claim for various items of property that were ostensibly destroyed in a residential fire, which, upon investigation, was established to have been intentionally set.

The evidence of defendant’s prior misrepresentation on the relevant application for insurance was properly admitted in evidence to establish his intent to defraud. The Appellate Division concluded that the probative value of that evidence outweighed its potential for prejudice, and that the court’s limiting instructions minimized any prejudice to defendant.

Evidence of Murray’s poor financial condition was relevant to whether the contents of the subject claim forms were false inasmuch as it tended to prove that defendant did not actually own and possess in his residence the numerous expensive items of property that he claimed were destroyed in the fire. Any error in admitting that evidence is harmless inasmuch as the proof of defendant’s guilt, without reference to the error, is overwhelming, and there is no significant probability that the jury would have acquitted defendant had it not been for the error.

Defendant further contended that the court erred in granting the People’s request to instruct the jury on accessorial liability because doing so impermissibly introduced an alternative theory of liability, i.e., that he acted in concert with his wife, that was not charged in the indictment as amplified by the bill of particulars. The Appellate Division rejected Murray’s contention because an indictment charging a defendant as a principal is not unlawfully amended by the admission of proof and instruction to the jury that a defendant is additionally charged with acting-in-concert to commit the same crime, nor does it impermissibly broaden a defendant’s basis of liability, as there is no legal distinction between liability as a principal or criminal culpability as an accomplice.

Contrary to Murray’s contention, the accessorial liability instruction did not introduce any new theory of culpability into the case that was inconsistent with that in the indictment, and thus his indictment as a principal provided him with fair notice of the charges against him.

Viewing the evidence in the light most favorable to the People and affording them the benefit of every favorable inference 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.

Contrary to defendant’s specific contention, even if he did not personally complete and sign each claim form, the evidence is legally sufficient to establish that he “cause[d] to be presented” a written statement containing materially false information in support of a claim for payment pursuant to an insurance policy and caused a false entry in the business records of an enterprise by meeting with the insurance company’s representative and submitting to him the forms that were to be filed on defendant’s behalf.

ZALMA OPINION

As has been said from the beginning of time: “When you do the crime you must be ready to do the time.” Murray did the crime. The evidence was clear and overwhelming. Murray’s arguments against his conviction were weak and immediately disposed of, with little effort, by the New York Appellate Division.


© 2020 – Barry Zalma

Barry Zalma, Esq., CFE, now limits his practice to service as an insurance consultant  specializing in insurance coverage, insurance claims handling, insurance bad faith and insurance fraud almost equally for insurers and policyholders. He also serves as an arbitrator or mediator for insurance related disputes. He practiced law in California for more than 44 years as an insurance coverage and claims handling lawyer and more than 52 years in the insurance business. He is available at http://www.zalma.com and zalma@zalma.com.

Mr. Zalma is the first recipient of the first annual Claims Magazine/ACE Legend Award.

Over the last 52 years Barry Zalma has dedicated his life to insurance, insurance claims and the need to defeat insurance fraud. He has created the following library of books and other materials to make it possible for insurers and their claims staff to become insurance claims professionals.

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