Court of Appeals upholds fraud conviction in Saratoga Winners blaze

Nov. 26--ALBANY -- The state's highest court Tuesday upheld the insurance fraud conviction of former Rexford gynecologist Akiva Abraham in a fire that destroyed the former Saratoga Winners nightclub on Route 9.

The Court of Appeals affirmed the conviction by a 6-to-1 vote; Associate Judge Eugene Pigott dissented.

Abraham, 48, was convicted of insurance fraud and acquitted of arson in the April 30, 2009, blaze at the building, which Abraham owned.

He is serving 4 to 12 years in Altona Correctional Facility in Clinton County.

Abraham insured the building for $475,000, which was the same amount as the mortgage he took out through a limited liability company controlled by Abraham and his father.

Abraham bought the building about two weeks before the blaze.

He went to trial twice; the first trial ended in mistrial.

Then-Albany County Assistant District Attorney Christopher Baynes told jurors it was a "bogus mortgage" taken out in an attempt to obtain more than $380,000 in insurance proceeds. Abraham's trial attorney, Bryan Rounds, later argued the insurance fraud conviction was legally "repugnant" -- logically inconsistent -- because the fraud charge was tied to the alleged arson.

On Oct. 15, Abraham's appellate attorney, Jonathan Fishbein, told the Court of Appeals that Abraham was convicted on legally insufficient evidence.

Chief Judge Lippman disagreed in writing the majority decision.

"Even assuming, as submitted by the defendant, that the jury's verdict in this case presented a factual inconsistency, it does not affect the propriety of his conviction," Lippman wrote. "But the question remains whether, viewing the evidence in the light most favorable to the prosecution, there is sufficient evidence in the record that defendant committed insurance fraud in the second degree by causing a written statement concealing information about the cause of the fire to be filed in order to collect wrongfully on the policy. We conclude that there is."

The court also rejected arguments by Fishbein that the verdict was tainted by prosecutorial misconduct, and that acting Supreme Court Justice Dan Lamont, now retired, should have instructed the jury to stop deliberating after it acquitted Abraham of arson.

Pigott supported the latter argument in voting to reverse.

"The prosecution's theory of the case was that defendant himself burned down the abandoned night club," Pigott stated. "No evidence was introduced suggesting that defendant had any accomplice, and the jury was not instructed on accessorial liability. To avoid the possibility of the factually inconsistent verdict that I believe obtained in this case, the trial court should have instructed the jury to stop deliberating if it acquitted defendant of arson."

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