Admittedly I don't have a clear understanding of New York law but it would appear to me that to use cover up of a second crime to enhance the charged crime, you would first have to prove guilt for the second crime. You can only prove guilt through a judicial process not by simple accusation. This would require indictment for this second crime followed by conviction or guilty plea. Isn't the district attorney trying to put the horse before the cart.
Something along the lines of “We don’t know if paying for X is legal or not, but if we record it as a business expense instead of as paying for X we won’t have to find out” would likely show sufficient intent to trigger the felony escalation.
Admittedly I don't have a clear understanding of New York law but it would appear to me that to use cover up of a second crime to enhance the charged crime, you would first have to prove guilt for the second crime. You can only prove guilt through a judicial process not by simple accusation. This would require indictment for this second crime followed by conviction or guilty plea. Isn't the district attorney trying to put the horse before the cart.
The second crime does not have to be proven, or even exist. The New York statute requires only intent (although intent does have to be proven).
Intent to cover up a "nothing"?...
Something along the lines of “We don’t know if paying for X is legal or not, but if we record it as a business expense instead of as paying for X we won’t have to find out” would likely show sufficient intent to trigger the felony escalation.