| People v Ukasoanya |
| 2012 NY Slip Op 08561 [101 AD3d 911] |
| December 12, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Emeka Ukasoanya, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Diane R. Eisner ofcounsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Ingram, J.),rendered August 28, 2006, convicting him of criminal possession of a forged instrument in thesecond degree (93 counts), criminal possession of a forgery device (4 counts), criminalpossession of stolen property in the third degree, criminal possession of stolen property in thefourth degree, scheme to defraud in the first degree, and attempted grand larceny in the fourthdegree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is modified, on the law, by vacating the conviction of scheme todefraud in the first degree, vacating the sentence imposed thereon, and dismissing count two ofthe consolidated indictment; as so modified, the judgment is affirmed.
The defendant's contention that his convictions of attempted grand larceny in the fourthdegree and criminal possession of stolen property in the fourth degree were not supported bylegally sufficient evidence is unpreserved for appellate review (see CPL 470.05 [2]; People v Hawkins, 11 NY3d 484,492 [2008]; People v Gray, 86 NY2d 10, 19 [1995]; People v McDaniel, 84 AD3d 1410, 1411 [2011]). In any event,viewing the evidence in the light most favorable to the prosecution (see People v Contes,60 NY2d 620 [1983]), we find that it was legally sufficient to establish the defendant's guilt ofthese crimes beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conduct anindependent review of the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342,348 [2007]), we are satisfied that the verdict of guilt with respect to these crimes was not againstthe weight of the evidence (see People vRomero, 7 NY3d 633 [2006]).
The defendant's contention that his conviction of scheme to defraud in the first degree(see Penal Law § 190.65) was not supported by legally sufficient evidence ispreserved for appellate review (see CPL 470.05 [2]), and we agree that the evidence waslegally insufficient to establish his guilt of that crime beyond a reasonable doubt. A person isguilty of scheme to defraud in the first degree, as charged in this case, when he or she engages ina fraudulent scheme directed toward more than one person and "so obtains property with a valuein excess of one thousand dollars from one or more such persons" (Penal Law § 190.65 [1][b]). Here, it was alleged that the defendant, on 10 different occasions between October 29, 2004,and November 28, 2004, went into a Lowe's home improvement store and presented afraudulently obtained charge card in order to steal merchandise [*2]by having it delivered to his warehouse. The jury acquitted thedefendant of every count associated with every alleged transaction, except the counts relating toNovember 28, 2004. The sole transaction upon which the defendant was convicted involvedLowe's generators, which had not yet been delivered to the warehouse (see People v Taylor, 55 AD3d 640[2008], revd on other grounds 14 NY3d 727 [2010]). Thus, the People failed to provethat the defendant "obtain[ed] property" worth more than $1,000 as a result of the alleged schemeto defraud (Penal Law § 190.65 [1] [b]). Accordingly, the conviction of scheme to defraudin the first degree and the sentence imposed thereon must be vacated, and count two of theconsolidated indictment must be dismissed.
The defendant's contention that he was deprived of his right to present a defense because theSupreme Court denied his application to admit certain testimony of a defense witness at aFranks hearing (see Franks v Delaware, 438 US 154 [1978]), pursuant to CPL670.10, is only partially preserved for appellate review (see CPL 470.05 [2]). In anyevent, because the Franks hearing was not a trial within the meaning of CPL 670.10(see People v Green, 78 NY2d 1029 [1991]; People v Ayala, 75 NY2d 422[1990], cert denied 513 US 888 [1994]; People v Harding, 37 NY2d 130 [1975]),and because the witness's testimony was not exculpatory (see People v Robinson, 89NY2d 648, 654-657 [1997]), the Supreme Court did not err in denying the defendant'sapplication.
The defendant's contention that the trial justice displayed actual bias during jury selection,but outside of the presence of the jury, by making certain references to the country from whichthe defendant had emigrated, Nigeria, and its alleged connection to identity theft, credit cardtheft, and financial fraud, is unpreserved for appellate review because the defendant failed tomake a recusal motion (see CPL 470.05 [2]; People v Prado, 4 NY3d 725, 726 [2004]; People v Bedell, 84 AD3d 1733[2011]; People v White, 81 AD3d1039 [2011]; People v Marino,21 AD3d 430, 432 [2005], cert denied 548 US 908 [2006]; People v Darling,276 AD2d 922 [2000]). In any event, the record does not support the defendant's bias claim (see People v Argentieri, 66 AD3d558, 559 [2009]; People vCasey, 61 AD3d 1011, 1014 [2009]; People v Love, 307 AD2d 528, 532 [2003];People v Maxam, 301 AD2d 791, 793 [2003]).
The defendant failed to preserve for appellate review his contention that part of the testimonyoffered by Joseph Coleman constituted an impermissible lay opinion (see CPL 470.05[2]). Likewise, the defendant failed to preserve for appellate review his contention that part of thetestimony offered by Detective Shy constituted improper bolstering (see CPL 470.05 [2]).In any event, any error in admitting this testimony was harmless, as there was overwhelmingevidence of the defendant's guilt on the charges other than scheme to defraud in the first degree,and no significant probability that the error contributed to his convictions (see People vJohnson, 57 NY2d 969, 971 [1982]; People v Crimmins, 36 NY2d 230 [1975]).
The defendant's remaining contentions are unpreserved for appellate review and, in anyevent, without merit. Rivera, J.P., Angiolillo, Leventhal and Cohen, JJ., concur.