| People v Nicholas |
| 2013 NY Slip Op 03691 [106 AD3d 1026] |
| May 22, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Andre Nicholas, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano andW. Andrew Barton of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(McGann, J.), rendered May 18, 2011, convicting him of criminal possession of stolenproperty in the fourth degree (two counts), criminal possession of stolen property in thefifth degree, identity theft in the second degree, false personation, attempted tamperingwith physical evidence, criminal possession of a controlled substance in the seventhdegree, unlawful possession of marijuana, and smoking tobacco in an enclosed areawithin a public place in violation of Administrative Code of City of NY §§17-503 (a) (6) and 17-508 (d), upon a jury verdict, and imposing sentence.
Ordered that the judgment is modified, on the facts, by reducing the defendant'sconvictions of criminal possession of stolen property in the fourth degree under countsone and two of the indictment to criminal possession of stolen property in the fifth degreeand vacating the sentences imposed thereon; as so modified, the judgment is affirmedand the matter is remitted to the Supreme Court, Queens County, for further proceedingsin accordance herewith.
The defendant failed to preserve for appellate review his challenge to the legalsufficiency of the evidence with respect to counts one and two of the indictment,charging him with criminal possession of stolen property in the fourth degree withrespect to a certain card issued by JP Morgan Chase Bank, N.A., as he failed, in his trialmotion to dismiss the indictment, to raise the specific contentions that he now raises onappeal (see CPL 470.05 [2]; People v Hawkins, 11 NY3d 484, 493 [2008]; People v Lewis, 96 AD3d878, 878 [2012]; People vWilliams, 94 AD3d 779, 780 [2012]; People v Mathieu, 83 AD3d 735, 735 [2011]).Nonetheless, the convictions on those two counts are against the weight of the evidence.In particular, the weight of the credible evidence does not support the jury's conclusionthat the card introduced at trial fell within the statutory definition of a "debit card" (PenalLaw § 165.45 [2]; General Business Law § 511) or a "public benefit card"that was "issued by the state or a social services district," or entitled the holder "to obtainpublic assistance benefits under a local, state or federal program administered by thestate" (Penal Law §§ 155.00 [7-b]; 165.45 [2]; cf. Penal Law§ 158.00 [1] [c]). Accordingly, the evidence does not support the defendant'sconviction of criminal possession of stolen property in the fourth degree under countsone and two of the indictment.
The evidence did, however, support a conviction, under both counts one and two ofthe indictment, of the lesser-included offense of criminal possession of stolen property inthe fifth [*2]degree (see Penal Law §165.40; People v Oates, 33AD3d 823 [2006]). Accordingly, we reduce the defendant's convictions of criminalpossession of stolen property in the fourth degree under counts one and two of theindictment to criminal possession of stolen property in the fifth degree and vacate thesentences imposed thereon (see CPL 470.15 [2] [a]; People v Ju Ju Jiang, 99 AD3d724, 725 [2012]; People v Oates, 33 AD3d at 823). Although the defendanthas already served the maximum sentence that could be imposed for criminal possessionof stolen property in the fifth degree (see Penal Law § 70.15 [1]), wenevertheless remit the matter to the Supreme Court, Queens County, for the imposition ofan authorized sentence for that offense (see People v Rumley, 102 AD3d 894, 895 [2013]).
Despite the defendant's contentions to the contrary, viewing the evidence in the lightmost favorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]),we find that it was legally sufficient to establish the element of intent to defraud andevery other element of the crime of identity theft in the second degree, with respect to thecount charging that crime of which the defendant was convicted. Intent to defraud as anelement of identity theft may be inferred by the finder of fact based upon the defendant'sacts (see Penal Law § 190.79 [1]; People v Vandermuelen, 42 AD3d 667, 670 [2007];People v Colon, 306 AD2d 213, 214 [2003]; People v Washington, 299AD2d 286, 286-287 [2002]; People v Fernandez, 27 Misc 3d 136[A], 2010 NYSlip Op 50856[U] [2010]). Moreover, in fulfilling our responsibility to conduct anindependent review of the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d342, 348 [2007]), we are satisfied that the verdict of guilt with respect to this crimewas not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]).
The defendant's remaining contentions either are without merit or need not beaddressed in light of our determination. Skelos, J.P., Balkin, Cohen and Miller, JJ.,concur.