SUPREME COURT OF THE STATE OF NEW YORK

COUNTYOFNEWYORK: PART72
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THE PEOPLE OF THE STATE OF NEW YORK,

- against - DECISION AND ORDER

HUSAMAHMAD
SHAHID AKHTAR Ind. No. 00729/18
HAKS ENGINEERS, ARCHITECTS
AND LAND SURVEYORS, DPC
Defendants.
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ROBERT M. STOLZ, J.:

The defendants Husam Ahmad, Shahid Akhtar and HAKS Engineers, Architects and Land

Surveyors, DPC ("the HAKS defendants"), 1 are charged with three counts of Offering a False

Instrument for Filing, in violation of PL§ 175.35(1 ). The counts pertain, respectively, to forms filed

in connection with the Lhota, Thompson, and DeBlasio fundraisers. The HAKS defendants have

moved to dismiss the first two counts of the indictment, relating to the Lhota and Thompson

fundraisers.

1. The Motion to Inspect and Release the Grand Jury Minutes and Dismiss the Charge

The motion to inspect the Grand Jury minutes is granted. The motion to release them is

denied. The motion to dismiss or reduce the charges for legal insufficiency of the evidence or defects

in the proceedings is denied. The Court has read the Grand Jury minutes and accompanying exhibits

received during the course of the proceedings. I find that the proceedings were properly conducted;

the Grand Jury was properly charged on the law; and there were no procedural defects that impaired

the integrity of the proceedings.

On a motion to dismiss an indictment, the Court may consider only the legal sufficiency of

1
HAKS is a construction management company that often does business with the city of New
York. From 2011through2015 the company won over $36 million in contracts with the NYC
Department of Environmental Protection (DEP). Husam Ahmad is the CEO of HAKS and Shahid Akhtar,
is the CFO.
 the evidence. "Inquiry into the adequacy of the proof to establ
ish reasonable cause - 'the degree of
certitude' the evidence provides - is exclusively the province of
the grand jury. " People v. Swamp,
84 NY2d 725, 730 (1994). Legally sufficient evidence, defined
as "[c]ompetent evidence which, if
accepted as true, would establish every element of an offens
e charged and the defendant' s
commission thereo f," CPL 70.10(1 ), means a prima facie case,
not proof beyond a reasonable doubt.
Id. at 730, citing People v. Mayo, 36 NY2d 1002, 1004 (1975
). As Swamp directs, this Court has
considered "(w]hether the evidence, viewed most favorably
to the People, if unexplained and
uncontradicted - and deferring all questions as to the weight
or quality of the evidence - would
warrant conviction." People v. Swamp, supra, at 730, citing Peopl
e v. Mikuszewski, 73 NY2d 407,
411 (1989); People v. Jennings, 69 NY2d 103, 114-15 (1986). By
this standard, the evidence before
the grand jury was legally sufficient.

Count One-The Lhota fundraiser

Count one charges the defendants with acting in concert with

David Henley 2 to offer for
filing, an In-Kind Contribution form completed by Henley with
respect to the Lhota fundraiser that
David Henley co-sponsored with HAKS on April 9, 2013. The
People claim the document was
fraudulent as, the following day, Henley was reimbursed for
his $868.03 contribution of food and
beverages for the event. The Grand Jury evidence with respec
t to this count included: 1) e-mails
between the defendants, other HAKS employees and Henley conce
rning the planning of the Lhota
fundraiser including how Henley would be reimbursed; 3
2) Henley's e-mail submission of an

The defendants and David Henley are co-defendants with respec

t to count one of the
indictment only. Henle y's case has been severed from these defend
ants.
3

The emails included a pre-event one from Ahmad to Rosaline

Gibbons stating in essence that
she should "get an invoice in the name ofUzm a Ahmad. No mentio
n ofHA KS!"

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 invoice to Uzma Ahmad, defendant Ahmad's wife, the day after the event; and 3) bank records

reflecting Henley's receipt and deposit of a check in the amount of $868.03 from Uzma Ahmad.

This evidence supports a finding that the HAKS defendants, acting in concert with Henley,

misrepresented on the in-kind contribution form that he was the contributor of the subject food and

beverages, when in truth he was acting as a mere conduit to disguise the identity of the HAKS

defendants as the true contributors. The evidence was also sufficient to establish the remaining

elements of the offense, namely that the defendants intended to defraud the state by concealing their

unlawful political contributions and, acting in concert with Henley, they offered or presented the

instrument to a member of the Lhota campaign for filing with the New York City Campaign

Finance Board ("CFB").

The defendants argue that, the form, when completed on April 9, 2013, was true on its face

because Henley had in fact made an in-kind donation of $868.03 and had not yet been reimbursed.

Because, they argue, the form was not "provably untrue'..i the evidence was insufficient to establish

"a false statement" -- an element of PL§ 175.35. The Court rejects this argument as the evidence set

forth above established the falsity of the document from its inception. The e-mails discussed above

show that Henley knew, prior to the event, that he would be reimbursed; and indeed it is undisputed

that on the very next day, April 10, 2013, Uzma Ahmad, defendant Ahmad' s wife, wrote him a check

for the exact amount of his "contribution." On this evidence the Grand Jury was entitled to conclude

that Henley was never a true contributor.

The HAKS defendants argue that the "false statement" required by PL §175.35 must be

"material," and that the form in question contained no such material false statement. However, as

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 the People point out, Filing a False Instrument in the First Degree, unlike, e.g., Perjury in the First

and Second Degrees, PL §§210.15 and 210.10, (criminalizing, inter alia, the making of a false

testimonial statement that is material to the action in which it is made) does not contain a

"materiality element," requiring only that the written instrument contain "a false statement or false

information." The word "material" does not appear in the statute.

The defendant's reliance on People v. Crawford, 73 AD2d 721 (3d Dept. 1979) is

misplaced. In Crawford, the charge of Offering a False Instrument for Filing was dismissed where

the instrument at issue contained a "technically" false statement but the falsehood was such that it

could not have resulted in defrauding the state. The decision is not framed in terms of the

"materiality" of the false statement, but rather holds that in that case the false statement did not affect

the purpose of the document. The Court is aware of only one, non-binding, lower court case imputing

a materiality requirement in a filing of a false instrument case. In People v. Altman, 83 Misc 2d 771

(County Court, Nassau County 1975), the defendant put false information on a Department of

Motor Vehicles ("OMV") form. In dismissing the false instrument charges, the Court found that,

notwithstanding this false information, the OMV would not have done anything differently had the

information been correct. Thus the Court opined that "it seems clear that the false statement or

information must be material to the written instrument in which it is contained. . . . It must

reasonably appear that the erroneous information will cause, influence or determine a result that would

not otherwise occur." Altman, supra at 774.

While the Court concurs with the Altman Court that there must be some nexus between the

false information and the "integrity of the entire instrument," supra; see also People v. Keller, 176

Misc 2d 466, 469 (Sup Ct. NY County 1998), this does not mean that PL §175.35, includes a

"materiality" element. In any event, Henley's representation was material, as the "falsity," i.e., his

4
mis-characterization of himself as a contributor, undermines the very purpose of the form-- to track

the sources and amounts of political campaign contributions to assure compliance with the NYC

Campaign Finance Act.

The argument that the HAKS defendants had no idea that the form was going to be filed is

belied by the form itself which states: "Reminder: The campaign committee must explain and keep

documentation showing how the fair market value of the in-kind contribution was determined ....

This form and documentation will be requested by the CFB during the election cycle and as a part

of your post election audit." A copy of this form was recovered from the desk of Rosaline Gibbons,

Ahmad's assistant, during the execution of a search warrant at HAKS, thus permitting the Grand

Jury to infer that the defendants, who, after all, sponsored many political fundraisers, were familiar

with the form, knew its purpose, and knew that ultimately it would be filed with the CFB.

Finally, the defendants ' arguments that Henley and Uzma Ahmad could both have legally

made the $868.03 contribution, thereby undermining "any conceivable intent to defraud" misses the

point: It is the HAKS defendants, by virtue of their status as a corporation and their business

relationship with the City and State of New York who were prohibited from making this

contribution. The Grand Jury evidence provides reasonable cause to believe that Henley, acting in

concert with the HAKS defendants, completed the form falsely for the purpose of obscuring the fact

that HAKS was the true contributor of the $868.03 .

Count Two: The Bill Thompson Intermediary Form

This count pertains to an Intermediary statement signed by Ahmad with respect to a

January 7, 2013, fundraiser for Bill Thompson, hosted by HAKS and attended by several HAKS

employees. On July 29, 2013, Ahmad signed an Intermediary Statement with respect to the twenty

contributions he had "bundled" from numerous HAKS employees, their spouses and others. That

5
 document contained the following certification: "I hereby affirm that I did not, nor to my knowledge,

did anyone else, reimburse any contributor in any manner for his or her contribution and none of the

submitted contributions was made by the contributor as a loan."

A review of the evidence before the Grand Jury, however, reveals that, in fact, these

employees were reimbursed for these "contributions" in their year end bonuses. Following the

execution of the search warrant, numerous internal HAKS e-mails were recovered and introduced,

demonstrating that Rosaline Gibbons, a HAKS employee, was actively soliciting donations from

HAKS employees with respect to this fundraiser and others. Records documenting the employees'

contributions were also recovered from Gibbons desk and summary spreadsheets documenting each

year's contributions were retrieved from her computer. The evidence also included testimony from

a former HAKS employee about the contributions he made while employed there and the fact that

he was always reimbursed the exact amount he contributed via a bonus, as were other HAKs

employees.

With respect to this form, the defendants again argue that, at the time it was made, the

Intermediary Statement was not false because the reimbursements had not yet occurred. Again, the

Court rejects this argument -- grounded, as it is, in a technicality which, if accepted, would be at odds

with the mission of the CFB and undermine the NYC Campaign Finance Act which, as the People

.
note, was created to promote transparency with respect to, inter alia, the identities of contributors.
'

In any event, the certification states that no contributors were reimbursed in "any manner" and that

none of the contributions were "made ... as a loan." Here, the Grand Jury evidence reflects that the

employees contributed to this and other fundraisers with the expectation that they would be repaid

by HAKS, in effect making them "loans" to HAKS. Accordingly, the motion to dismiss counts one

and two is denied.

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2. Motion to Controvert the Search Warrants

The motion is denied for the reasons set forth in the Court's February 1, 2019, decision with

respect to companion case, Indictment No. 731/18.

3. Motion for a Court Ordered Bill of Particulars

The defendants claim that the People have not provided an adequate Bill of Particulars, and

move this Court to compel them to do so pursuant to CPL §200.95(5). The motion is denied. First,

the counts in this indictment, all charging Offering a False Instrument for Filing in the First Degree,

are quite specific in that they identify the allegedly false documents filed and the date of their filing.

I find these counts to be sufficiently particular as to notify the defendants of the accusations so that

they may prepare a defense and, if convicted, to enable them to raise a constitutional bar of double

jeopardy against subsequent prosecution. See People v. Sanchez, 84 NY2d 440, 445 (1994) and

cases cited therein. In addition, the People have provided a Bill of Particulars in their Voluntary

Disclosure Form, a detailed statement of facts, and liberal discovery. Defend;mts remaining requests

for particulars are denied as seeking evidentiary detail not necessary to the preparation of the defense

or otherwise required by law. CPL §200.95.

This shall constitute the Decision and Order of the Court.

Dated: February 1, 2019

New York, New York