| People v Lewis |
| 2013 NY Slip Op 00258 [102 AD3d 505] |
| January 17, 2013 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Anthony Lewis, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Susan Axelrod of counsel), forrespondent.
Judgment, Supreme Court, New York County (Maxwell T. Wiley, J.), rendered July30, 2009, as amended May 10, 2011, convicting defendant, after a jury trial, of grandlarceny in the third degree (two counts), grand larceny in the fourth degree (three counts),criminal possession of a forged instrument in the second degree (eight counts), identitytheft in the first degree (five counts), scheme to defraud in the first degree and criminalpossession of forgery devices, and sentencing him to an aggregate term of9
During the investigation, the police, without obtaining a warrant, attached a globalpositioning system (GPS) to defendant's car that provided defendant's location at themoment information was requested. This case was tried a few weeks before the Court ofAppeals decided People vWeaver (12 NY3d 433 [2009]), which deals with the legality, under the NewYork Constitution, of prolonged warrantless use of GPS devices.
Defendant argues that the trial court should have granted his motion to set aside theverdict, at least to the extent of granting a suppression hearing regarding evidencederived from the use of the GPS device. In the alternative, he argues that his attorneyrendered ineffective assistance by failing to preserve the issue of the constitutionality ofthe GPS surveillance.
We conclude that the very limited GPS surveillance in this case was permissibleunder Weaver. The device was attached to defendant's car for approximatelythree weeks, and was functional for only two of them. Unlike the sophisticated device inWeaver, which permitted the police to record all manner of information and toretrieve stored information, it did not track defendant continuously. Rather, reportsindicate that the device was only accessed by the police on two days to enhance theirvisual surveillance.
In any event, regardless of whether the surveillance violated state law, or whether themere attachment of a GPS device to defendant's car violated federal constitutional law(see United States v Jones, 565 US —, 132 S Ct 945 [2012]), we find anyerror to be harmless (see People v Crimmins, 36 NY2d 230 [1975]). Evidencederived from the use of the GPS device played a minimal role in the prosecution'soverwhelming case. The device was mentioned during testimony at trial in connectionwith surveillance relating to one day. As to that day, a [*2]detective testified that he did not rely solely on the GPS tolocate defendant. Other evidence also established defendant's involvement in the crimesat the various stores to which the police followed him, including the testimony of variousemployees and surveillance tapes, which would not be suppressible as the fruit of thewarrantless use of a GPS device (see People v Mendez, 28 NY2d 94, 100 [1971],cert denied 404 US 911 [1971]). Accordingly, regardless of whether defendant'sattorney should have made a timely challenge to the GPS-derived evidence, defendanthas not established that he was prejudiced by that omission (see Strickland vWashington, 466 US 668, 694 [1984]; see also People v Benevento, 91NY2d 708, 714 [1998]). Furthermore, an attorney is not ineffective for failing toanticipate a change in the law (see People v Sanchez, 76 AD3d 122, 130 [1st Dept 2010],lv denied 15 NY3d 855 [2010]; People v Brisson, 68 AD3d 1544, 1547 [3d Dept 2009],lv denied 14 NY3d 798 [2010]).
Defendant asserts that his grand larceny convictions were against the weight of theevidence. Defendant argues that, as to each of these counts, the evidence failed toestablish a larceny from the particular bank or merchant designated as the victim.
This Court "is constrained to weigh the evidence in light of the elements of the crimeas charged without objection by defendant" (People v Noble, 86 NY2d 814, 815[1995]). Viewing the evidence in light of the charge, we find that the verdicts at issuewere not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). Tothe extent defendant is also claiming that the evidence was legally insufficient toestablish his guilt beyond a reasonable doubt, thereby violating his right to due process,or is challenging the court's jury instructions, we find those claims to be unpreserved, andwe decline to review them in the interest of justice. As an alternative holding, we find nobasis for reversal.
Defendant argues that the court violated his constitutional rights by denying hisobjections to wearing jail-issued orange shoes at trial. Preliminarily, defendant has notpreserved his claim that the shoes impinged on his right to testify and we decline toreview it in the interest of justice. When the court asked defendant if he intended totestify, he simply declined. Defendant did not alert the court to his alleged reason for nottestifying until deliberations had already commenced (see People v Narayan, 54NY2d 106, 113 [1981]).
The remainder of this claim is without merit. The court stated its belief that the jurorscould not see defendant's footwear from the jury box, and neither defense counsel nordefendant contradicted this assertion. The court also directed counsel to position hisbriefcase so as to block the jury's view, and noted on another occasion that boxes and acart blocked the jury's view. Defendant was otherwise dressed in civilian clothing and thecourt observed that the shoes did not have prison markings, but looked like slip-onConverse sneakers, although not as nice (see People v Johnston, 43 AD3d 1273 [4th Dept 2007],lv denied 9 NY3d 1007 [2007]; People v Oliveri, 29 AD3d 330, 332 [1st Dept 2006], lvdenied 7 NY3d 760 [2006]). Moreover, the court twice offered to sign orders tocompel the Department of Corrections to permit defendant to wear his own shoes, butdefendant never followed through on the court's attempt to remedy the problem. Nor diddefendant seek an alternative means of obtaining non-prison shoes, such as having afamily member bring a pair of shoes to the courtroom.
Defendant's argument that the verdict sheet did not comport with the requirements ofCPL 310.20 (2) because the court listed crime locations (the stores), rather than thevictims (the banks and cardholders), with respect to certain counts is without merit. CPL310.20 (2) provides in relevant part: "Whenever the court submits two or more countscharging offenses set forth in [*3]the same article of thelaw, the court may set forth the dates, names of complainants or specific statutorylanguage, without defining the terms, by which the counts may be distinguished;provided, however, that the court shall instruct the jury in its charge that the sole purposeof the notations is to distinguish between the counts."
In People v Miller (18NY3d 704, 706 [2012]), the Court of Appeals held that in a criminal case,"[n]othing of substance can be included [in the verdict sheet] that the statute does notauthorize." The names of the stores are neither "statutory text" nor "element[s] of thecrimes charged" and simply distinguished the various counts from each other (see People v McCallum, 96AD3d 1638, 1640 [4th Dept 2012] [internal quotation marks omitted]; People vEvans, 259 AD2d 629 [2d Dept 1999], lv denied 93 NY2d 924 [1999]).
The stores were proxies for the complainants in that they are victims of defendant'sfraudulent use of the credit cards, even if they do not bear the ultimate loss. The larcenystatute does not define the crime with respect to a specific "victim," but instead requiresproof that property was wrongfully taken from its "owner," meaning anyone with rightssuperior to those of the taker (see Penal Law §§ 155.00 [5]; 155.05[1]). Defendant used the forged cards to obtain goods that he did not intend to pay forfrom the stores. Even though the stores may have been reimbursed by the bank, theynonetheless were affected by defendant's conduct. This interpretation of the statute isconsistent with the legislative intent of the amendments to CPL 310.20 (2) (see e.g.Mem of Off of Ct Admin No. 64, 2002 NY Legis Ann at 338-339 [amendmentallows a court to "include on the verdict sheet relevant information to assist the jury indistinguishing among the counts" and ensures that "juries would receive the informationthey need to distinguish among multiple counts in a broader array of cases"]).
We perceive no basis for reducing the sentence. To the extent defendant is arguingthat he is entitled to an unspecified reduction as a matter of law, that argument is withoutmerit.
We have considered and rejected defendant's remaining claims.Concur—Andrias, J.P., Friedman, Moskowitz, Freedman and Manzanet-Daniels,JJ.