NISKAYUNA — Town police accomplished an uncommon feat this week: an arrest in one of the quick, expensive, incomplete driveway repair jobs that are notorious among senior citizens and their advocates.
Now prosecutors have to work around the same factors that make some seniors such good targets for scams: failing memory, poor hearing and limited attention span.
A preliminary hearing was held Friday in Niskayuna Town Court for Craig Kearsing, 38, of Colonie, who was arrested Monday on one count of third-degree grand larceny. He is alleged to have accepted payment of $5,200 from a 93-year-old widower for a driveway job that was never completed.
Or perhaps the work was never even started. Also not established in court at this early stage was what work was actually done, and what was supposed to have been done.
Taking the witness stand Friday, the widower was unable to provide some details and offered multiple versions of other details.
Deputy Chief Public Defender Brendan Keller asserted the issue was not the fairness of Kearsing charging $5,200 for a small amount of work. The two parties had an agreement, work was done and it was paid for, he said — therefore, this is not a larceny.
Assistant District Attorney William Lemon countered that a recording of a voice mail Kearsing purportedly left for Detective Greg Vena provided key corroboration and that there was ample evidence that this was a larceny by false pretense or false promise.
Niskayuna Town Justice Stephen Swinton Jr. ruled there was sufficient evidence to continue with the prosecution. He turned the matter over to County Court, which has jurisdiction in felony cases, and ordered Kearsing sent back to the Schenectady County Jail.
Driveway scams are notorious for high cost and/or low quality, and many homeowners fall victim each year, according to the Better Business Bureau. Characteristics include high-pressure sales pitches, inferior materials, cash-only payments, roving work crews with no business name or landline phone, and fly-by-night operations that do substandard work then disappear.
In this case Kearsing, a resident of Fisler Avenue just a few hundred feet from the Niskayuna border, was identified by town police soon after the July 5 incident. But investigators initially decided the case was a matter for civil litigation rather than criminal prosecution, and the case languished for months.
After a late-October conference with the Schenectady County District Attorney’s Office, Niskayuna police changed their stance. On Nov. 4, they arrested Kearsing on a felony charge that could net him a sentence of up to seven years in prison.
The driveway in question is fairly long, and a walkway to the house also is made of asphalt. All told, there’s about as much paved square footage in the front yard as there is space inside the house, a modest World War II-era structure on Hillside Avenue that the widower has called home for 57 years.
Glenville Police Officer Laurence Borwhat, who assisted the investigation because he has sealcoated thousands of properties in his side business, testified Friday that he would have quoted $270 to seal the 1,800 square feet of asphalt, and charged more if the client wanted him to fill cracks or patch holes. Based on his inspection two weeks ago, he’s confident the driveway hasn’t been sealed in years, though he did see some patches.
The widower was accompanied in court by one of his children, who holds power of attorney for him and handles his finances. It was she who made the initial call to police soon after she found out what had happened.
She testified about the financial specifics of the driveway transaction, but she did not, as Keller pointed out, have firsthand knowledge of the terms Kearsing and her father agreed on.
Such breaks in the narrative are a challenge for law enforcement authorities in many scams targeting seniors, and may be a sticking point in this case as well.
On the witness stand, the widower was unable at times to maintain his train of thought, or clearly hear what was said, or present a consistent factual narrative.
He said he drove Kearsing to the bank, but he also said they went in two cars. He said he wrote and helped cash a $5,200 check to Kearsing, but bank records indicate it was a cash withdrawal. He didn’t know he’d given a statement to police Oct. 25, then conceded he must have, because Keller was holding it in court Friday.
“I can’t seem to concentrate like I want to,” he said at one point.
At another point, he apologized for needing questions repeated and not knowing the answers. “I’m a little upset,” he said. “I just want peace.”
“Don’t we all,” answered Swinton, who like Keller and Lemon treated him gently as he struggled on the witness stand.
Most notably, Lemon couldn’t get the widower to point out Kearsing, sitting eight feet away in bright jailhouse orange clothing, as the man who had approached him to ask for a glass of water on that hot July day, came into his kitchen, and proposed repairing his cracked and damaged driveway.
Eventually, a veteran criminal prosecutor accompanying Lemon in court took his place and managed to get the widower to point out Kearsing.
The widower simply didn’t understand that Lemon wanted him to point to Kearsing — though he obviously recognized Kearsing, and noted that he’d added some facial hair since their last meeting.
“Good luck, Craig,” the widower said pointedly as he slowly walked past Kearsing on his way out of the courtroom.
The details in the widower’s testimony shifted repeatedly but a basic underlying point remained unchanged: He and Kearsing made a deal, the widower paid him voluntarily, and some work was done — the widower testified he saw a taller man scraping out cracks in the driveway with a sharp object.
The defense focused on this.
It was not a sophisticated agreement, Keller acknowledged, perhaps not even a good agreement, but whether Kearsing took advantage of an old man is irrelevant, Keller asserted: no larceny or fraud occurred.
He’ll have additional opportunities to make this point as the case progresses through the court system.
Lemon said investigators have been unable to identify the man the widower saw scraping cracks in the driveway, and it is not even clear that this second person has any criminal liability.
Niskayuna police requested that anyone with knowledge about Kearsing’s actions contact them.