| People v Ramirez |
| 2012 NY Slip Op 06706 [99 AD3d 1241] |
| October 5, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Maria F.Ramirez, Appellant. |
—[*1] R. Michael Tantillo, District Attorney, Canandaigua, for respondent.
Appeal from a judgment of the Ontario County Court (Craig J. Doran, J.), rendered August 3,2010. The judgment convicted defendant, upon a jury verdict, of falsifying business records inthe first degree, criminal mischief in the fourth degree and petit larceny.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting her upon a jury verdict offalsifying business records in the first degree (Penal Law § 175.10), criminal mischief inthe fourth degree (§ 145.00), and petit larceny (§ 155.25). We reject defendant'scontention that the evidence adduced at trial is legally insufficient to support the conviction offalsifying business records (see generally People v Bleakley, 69 NY2d 490, 495 [1987]).Viewed in the light most favorable to the prosecution (see People v Contes, 60 NY2d620, 621 [1983]), the evidence established that defendant knowingly returned unpurchasedmerchandise at a Lord & Taylor store in exchange for store credit. Defendant then used thefraudulently obtained store credit to purchase several other items of merchandise before she leftthe store. Thus, the People established that defendant "cause[d] a false entry in the businessrecords of an enterprise" (§ 175.05 [1]), i.e., that she returned merchandise that she had notin fact purchased, and that she thereby "inten[ded] . . . to aid or conceal [her]commission" of the crime of petit larceny (§ 175.10; see People v Weaver, 89 AD3d 1477, 1478 [2011]; People v Hopkins, 28 AD3d 1244,1244 [2006], lv denied 7 NY3d 790 [2006]).
We reject defendant's further contention that the first count of the indictment, charging herwith falsifying business records in the first degree, was rendered duplicitous by the evidence attrial and that it is unclear whether the jury reached a unanimous verdict concerning that count.The summations of the prosecutor and defense counsel made it clear that defendant's return ofmerchandise she had not purchased, i.e., the "no receipt" transaction, was the sole cash registertransaction that related to the count charging her with falsifying business records. Thus, there isan adequate basis in the record to connect that count of the indictment to a particular cash registertransaction, and there is no danger that different jurors convicted defendant based on differentcash register transactions involving defendant on the day in question (see People v Mathis, 8 AD3d 966,967-968 [2004], lv denied 3 NY3d 709 [2004]; People v Drayton, 198 AD2d770, 770 [1993]). Finally, defendant contends that prosecutorial misconduct on summationrequires reversal. We reject that [*2]contention. "[A]nyimproprieties [in the prosecutor's summation] were not so pervasive or egregious as to deprivedefendant of a fair trial" (People vCox, 21 AD3d 1361, 1364 [2005], lv denied 6 NY3d 753 [2005] [internalquotation marks omitted]). Present—Fahey, J.P., Peradotto, Carni and Sconiers, JJ.