A former attorney who was offered probation after she admitted stealing almost $340,000 from a client but has spent 27 months in prison because she could not make timely restitution must be resentenced, a state appellate court has decided.
Jane Posner, of Patterson in Putnam County, pleaded guilty in January 2010 to second degree grand larceny. According to court documents, Posner had accepted a check for $339,719 at a real estate closing she attended for a New Jersey firm. After depositing the money in her own escrow account, she sent a check to the New Jersey firm but then stopped payment.
The Appellate Division, Second Department, noted in People v. Posner, S.C.I. No. 201/10 that Posner was promised five years probation if she made full restitution, with a downpayment of $50,000 to be made at sentencing and the remainder to be paid over 12 weeks.
But when she showed up for sentencing in August 2010, she had only paid $4,000, garnered through the sale of a stamp collection she had thought was worth much more. County Court Judge James Reitz sentenced her to 5 to 15 years in prison. He also directed her to make restitution and file a confession of judgment.
Posner moved to withdraw her guilty plea in late 2010, arguing that she had not been given sufficient time to consider whether she could raise the $50,000 in time.
"She hadn't know until the day of the plea that the $50,000 payment was part of the deal," said Terry Horner, of Poughkeepsie, who represented Posner on appeal. "The day of the plea, her attorney came out of the conference and said, 'If you refuse, you will get the maximum [prison time].'"
After Reitz denied her motion, she appealed to the Second Department. The county court had no evidence that Posner was able to make the downpayment but simply refused to do so, Horner argued before the appellate court on Oct. 2. Further, Posner made sincere efforts to raise the money, Horner said, through the sale of the stamp collection and other assets.
The appellate court—comprised of Justices Reinaldo Rivera (See Profile), Ruth Balkin (See Profile), John Leventhal (See Profile) and Cheryl Chambers (See Profile)—ruled on Nov. 14 in an unsigned unanimous opinion that Reitz had not conducted an adequate inquiry into whether her failure to make the required restitution before the sentencing date was willful.
The court did not agree with Posner's claim that she received ineffective assistance from Barry Warhit, her counsel in the plea proceedings, saying there was not enough evidence on the record to support that claim.
Warhit is now a Westchester County Court judge and could not be reached for comment.
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