Defendant's guilt was established beyond a reasonable doubt (People v. Contes, 60 N.Y.2d 620, 621), the jury having ample grounds to reject defendant's attempts to explain his conceded participation in the overbilling scheme, the extent of which was proven by competent evidence.
Defendant's right against self-incrimination was not violated by the prosecution's use, as evidence in chief, of defendant's testimony in an earlier contempt proceeding it had brought against defendant, since defendant was not compelled in any manner to testify at the contempt hearing. The prosecutor's isolated, unintentional misstatement of fact, concerning the dates of certain events, was adequately cured by the court's general instruction that the jury's recollection controls.
Defendant was properly convicted of a conspiracy count that encompassed conspiratorial acts (but not substantive crimes) committed by coconspirators before defendant joined the conspiracy (see, People v. McGee, 49 N.Y.2d 48, 57-58, cert denied sub nom. Quamina v. New York, 446 U.S. 942). The jury was entitled to draw the rational inference that defendant's reassembling of records in response to the Medicaid audit was a coverup and not a legitimate reconstruction. Defendant's motion for a severance was properly denied (CPL 200.40). Finally, the sentence for this Medicaid overbilling scheme involving a theft of more than $750,000 was not an abuse of discretion, defendant's background notwithstanding.
Concur — Sullivan, J.P., Carro, Wallach and Tom, JJ.