The law under which local builder David White faces two felonies might lend itself to a defense that missing accounting figures in a $300,000 home building project were a simple mistake, a prosecutor told a Schenectady County Court jury Tuesday.
But, Peter Willis told the jury, if anyone was familiar with state lien law rules, it was White, who was prosecuted under the same statute 12 years ago.
“There is no way he didn’t know that spending money on a different job was wrong, or that spending money on a different job wasn’t a larceny,” Willis told the jury.
White is standing trial on one count each of second-degree grand larceny and first-degree scheme to defraud, both felonies. He is accused of diverting $70,000 from a home building project for Stephen and Mary Lolik.
The Loliks hired White to build a new home for them on Snake Hill Road in Glenville in 2008. The original contract was for $278,000, but the cost increased to $317,000 and then inexplicably increased to $393,000 Willis said.
The Loliks stopped paying at $317,000, Willis said, because they were given no accounting of where the money went.
In the meantime, White failed to pay subcontractors for an estimated $70,000 in work.
White either diverted the money to other projects, which is illegal, Willis said, or couldn’t say what happened to it. Failing to keep records, Willis told the jury, is presumptive evidence that money was diverted.
White’s actions, Willis told the jury, turned the Loliks’ dream home into a nightmare. But White’s attorney, Mark Mischler, countered that if anyone was going through a nightmare, it was his client.
The case comes down to two questions, Mischler told the jury: whether White diverted funds and whether he intended to steal or defraud.
“The evidence will show Mr. White legitimately spent more money on construction of their new home than they paid him,” Mischler told the jury.
Mischler frequently referred to the Loliks’ home as “fancy” and being worth $400,000. He also noted that despite everything that’s happened, they’re living in it.
“I suggest the nightmare is the other way around,” Mischler said, “The nightmare is Mr. White’s.”
Regarding the 1998 Albany case, Mischler argued it wasn’t relevant, that White had built many homes since without problems.
Mischler argued at a pretrial hearing Monday to keep the prior case from being mentioned, arguing it would be too prejudicial, but acting Schenectady County Court Judge Richard Giardino, who is presiding over the case, allowed it in. The jury can consider it only in that White was aware of the laws, though, Giardino ruled; the prior conviction itself can’t be used as evidence of guilt in the current allegations.
In the previous case, White won the contract to build a new Albany Police substation in Arbor Hill, but was accused of diverting the money elsewhere. Delays cost the city about $150,000 more than the $450,000 bid White put in on it.
White faced a five-count indictment in that case, later pleading guilty to a lesser charge in exchange for a 90-day jail sentence.
The case currently on trial also led to allegations against Mary Lolik, who was director of the Schenectady County Probation Department. She was suspended from her job last summer amid allegations she improperly used a restricted state database to probe the builder’s background starting in January 2009 — the month the family began paying for some of the unfinished work out of their own pockets.
The 41-year veteran of county service initially contested the allegations against her but later retired, resolving the matter.
The White trial is expected to last into next week.