| People v Lloyd |
| 2014 NY Slip Op 04263 [118 AD3d 1117] |
| June 12, 2014 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vCharles Lloyd, Appellant. |
James P. Milstein, Public Defender, Albany (Theresa M. Suozzi of counsel), forappellant.
P. David Soares, District Attorney, Albany (Vincent Stark of counsel), forrespondent.
Stein, J. Appeal from a judgment of the County Court of Albany County (Herrick,J.), rendered December 13, 2011, upon a verdict convicting defendant of the crimes ofcriminal possession of a forged instrument in the second degree (two counts), criminalpossession of stolen property in the fourth degree (four counts) and unlawful possessionof personal identification information in the third degree (11 counts).
In June 2010, State Police received information from Allyson Gorney that she anddefendant had been engaged in a scheme in which they made fraudulent checks and usedstolen identification cards to cash them. That information led to the issuance andexecution of a search warrant at defendant's apartment. In the closet of the masterbedroom, police recovered a green suitcase containing various items used for printingchecks, as well as a card skimmer device and an envelope containing, among otherthings, driver's licenses, nondriver identification cards, three credit/bank cards, twochecks, a New York benefit card and two Social Security cards. Defendant wastransported to the police station and, after Miranda warnings were administered,he made certain incriminating statements.
Defendant was thereafter charged by indictment with criminal possession of stolenproperty in the fourth degree (four counts), criminal possession of a forged instrument inthe second degree (two counts), unlawful possession of personal identificationinformation in the third degree (12 counts) and one count of criminal possession of askimmer device. At the close [*2]of the People's case, thePeople consented to the dismissal of one count of unlawful possession of personalidentification information and the jury convicted defendant of all the remaining counts,except criminal possession of a skimmer device. Defendant was subsequently sentenced,as a second felony offender, to various concurrent prison terms, the greatest of which is3
We affirm. Initially, we reject defendant's claim that County Court should havesuppressed the statements he made to State Police Investigator Timothy Northrupbecause his Miranda rights were violated. At the suppression hearing, Northruptestified that defendant was taken into custody, brought to the police station and placedin an interview room. Northrup then read defendant his Miranda rights anddefendant agreed to answer his questions. According to Northrup, the entire interrogationlasted no more than 25 minutes, and there is no indication in the record that defendantasked to speak with an attorney at any time. Based on this testimony, the Peopleestablished that defendant's statements were voluntarily made after a valid and knowingwaiver of his Miranda rights (see People v Kidd, 112 AD3d 994, 996-997 [2013]; People v Mattis, 108 AD3d872, 874 [2013], lv denied 22 NY3d 957 [2013]).
In accordance with our prior rulings, defendant's additional argument that thestatements should have been suppressed because the interview was not electronicallyrecorded is also unavailing (seePeople v Moore, 112 AD3d 981, 982 [2013]; People v Beckingham, 57AD3d 1098, 1099-1100 [2008], lv denied 13 NY3d 742 [2009]; see also People v Dukes, 53AD3d 1101, 1101 [2008], lv denied 11 NY3d 831 [2008]). Moreover,considering the totality of the circumstances (see People v Aveni, 22 NY3d 1114, 1117 [2014]), we areunpersuaded that, as a result of the minimally deceptive tactics employed by Northrup,defendant's statements were not "the product of [defendant's] own choice" (People v Thomas, 22 NY3d629, 642 [2014]; see Peoplev Wolfe, 103 AD3d 1031, 1035 [2013], lv denied 21 NY3d 1021[2013]; People v Jaeger, 96AD3d 1172, 1174 [2012], lv denied 19 NY3d 997 [2012]). Thus, we discernno basis to disturb the denial of defendant's motion to suppress his statements.
Upon our review of the trial evidence, we find that the jury's verdict was supportedby legally sufficient evidence and was in accord with the weight of the evidence. As tothe four counts of criminal possession of stolen property in the fourth degree, the Peoplewere required to prove that defendant knowingly possessed a stolen credit card, debitcard or public benefit card with the intent to benefit himself or another person(see Penal Law § 165.45 [2]; People v Hall, 57 AD3d 1222, 1226 [2008], lvdenied 12 NY3d 817 [2009]). Here, the police recovered a New York benefit cardand three credit/bank cards from defendant's apartment.[FN1]Inasmuch as defendant was inpossession of two or more stolen credit cards, he was "presumed to know that such creditcards . . . were stolen" (Penal Law § 165.55 [3]; see Peoplev Mitchell, 77 NY2d 624, 628 [1991]; People v Hall, 57 AD3d at 1226;People v White, 251 AD2d 157, 157 [1998], lv denied 92 NY2d 908[1998]).
Moreover, three of the four victims testified that the cards seized from defendant's[*3]apartment belonged to them and had previously beenstolen. Although the remaining victim did not testify, Gorney's testimony established thatshe and defendant used stolen property in connection with their scheme, and defendantadmitted to Northrup that other people "in his business, his criminal activity,. . . know what he does" and would bring him credit cards or driver'slicenses that "were [either] stolen or he had gotten them from people." When askedwhether he believed that the cards were stolen, he answered, "Probably, yes." Viewingthis evidence in a light most favorable to the People, we find that there is a valid line ofreasoning and permissible inferences to support the conclusion reached by the jury as todefendant's guilt of these four charges (see People v Swackhammer, 65 AD3d 713, 714 [2009];People v Hall, 57 AD3d at 1227).
In order to convict defendant of criminal possession of a forged instrument in thesecond degree, the People were required to establish that defendant possessed a forgedinstrument (see Penal Law § 170.10), " 'with knowledgethat it is forged and with intent to defraud, deceive or injure another' " (People v Rebollo, 107 AD3d1059, 1060 [2013], quoting Penal Law § 170.25; see People v Hughes, 111AD3d 1170, 1171 [2013]). Defendant's knowing possession of forged instrumentswas established by the two checks—both from "Better Choice Home Care,Inc."[FN2]—that were found in hisapartment, as well as Gorney's testimony that she and defendant made checks with theequipment found in the green suitcase and then cashed them using the driver's licensesthat defendant had obtained. One of the checks was made payable to a victim whosedriver's license was found at defendant's apartment. Thus, defendant's knowledge wasreadily inferrable from the surrounding circumstances (see People v Martin, 116AD3d 1166, 1166 [2014]; People v Monteiro, 93 AD3d 898, 899 [2012], lvdenied 19 NY3d 964 [2012]).
With respect to the 11 counts of unlawful possession of personal identificationinformation in the third degree, it was incumbent on the People to establish thatdefendant "knowingly possesse[d]" a personal identification number "of another personknowing such information [was] intended to be used in furtherance of the commission ofa crime" (Penal Law § 190.81). We reject defendant's assertion thatinformation contained on a driver's license, nondriver identification card and SocialSecurity card are not encompassed by the statute. A "personal identification number" isdefined as "any number or code which may be used alone or in conjunction with anyother information to assume the identity of another person or access financial resourcesor credit of another person" (Penal Law § 190.77 [2] [b]). In our view, theidentification numbers set forth on the documents found in defendant's apartment fallwithin the plain language of that definition. Moreover, defendant's possession of theidentification numbers and his intended use thereof were established by Northrup'stestimony as to the items found in the master bedroom in defendant's apartment, Gorney'stestimony regarding the manner in which she and defendant used those identificationnumbers to facilitate their scheme, as well as defendant's admission to his involvement inmaking fraudulent checks.
Contrary to defendant's further contention, Gorney's testimony as an accomplice wassufficiently corroborated (see CPL 60.22 [1]). "Notably, [i]ndependent evidenceneed not be offered to establish each element of the offense or even an element of theoffense; rather, [i]t is [*4]enough if [the corroborativeevidence] tends to connect the defendant with the commission of the crime[s] in such away as may reasonably satisfy the jury that the accomplice is telling the truth" (People v Forbes, 111 AD3d1154, 1157 [2013] [internal quotation marks and citations omitted]; see People v Reome, 15 NY3d188, 192 [2010]; accordPeople v Matthews, 101 AD3d 1363, 1365 [2012], lv denied 20 NY3d1101 [2013]). Here, the proof of the items found in defendant's apartment, as well asdefendant's own admissions, satisfied the minimal corroboration requirements connectingdefendant to the commission of these crimes. The credibility of Gorney'stestimony—in view of, among other things, her cooperation with thepolice—was fully explored at trial and fell within the jury's province. Uponevaluating the foregoing evidence in a neutral light and deferring to the jury's credibilityassessments (see People vRomero, 7 NY3d 633, 643-644 [2006]), we are satisfied that the verdict was inaccord with the weight of the evidence (see People v Jones, 111 AD3d 1148, 1150 [2013]; People v Pagan, 103 AD3d978, 981 [2013], lv denied 21 NY3d 1018 [2013]).
Defendant failed to preserve his claim that he was denied the right to confrontwitnesses—namely, the owners of each of the credit/bank cards, driver's licensesand nondriver identification cards that were in defendant's possession (see People vKello, 96 NY2d 740, 743 [2001]; People v Demagall, 114 AD3d 189, 200 n 6 [2014]; People v Cade, 110 AD3d1238, 1240-1241 [2013], lv denied 22 NY3d 1155 [2014]). In any event, theConfrontation Clause was not implicated, as the People did not elicit the testimonialstatements of any witness who did not appear at trial (see Crawford vWashington, 541 US 36, 53-54 [2004]; People v Heard, 92 AD3d 1142, 1145 [2012], lvdenied 18 NY3d 994 [2012]).
Defendant's claim that he was denied a fair trial due to a variety of trial errors doesnot merit extended discussion. First, in view of the fleeting and isolated nature ofNorthrup's references to the presence of defendant's parole officer during the executionof the search warrant and County Court's amelioration of any prejudice to defendant byits thorough instruction to the jury, the challenged testimony did not amount to reversibleerror (see People v Rhodes,49 AD3d 1022, 1023 [2008], lv denied 10 NY3d 963 [2008]). Nor didCounty Court's Sandoval ruling constitute an abuse of discretion. County Courtfound that defendant's prior two felony and one misdemeanor convictions were probativeas to defendant's credibility and willingness to place his own self-interest above that ofsociety (see People vYoung, 115 AD3d 1013, 1014 [2014]; People v Wolfe, 103 AD3d at1036; People v Alnutt, 101AD3d 1461, 1464 [2012], lv denied 21 NY3d 941 [2013]), and the courtallowed a compromise in which the People would be permitted to question defendant oncross-examination only as to whether he was convicted of such crimes, without referenceto the specific crimes or the underlying facts. Contrary to defendant's claim, the 1997conviction was not so remote as to require its preclusion, particularly in view ofdefendant's incarceration during a significant portion of the time that elapsed since thatconviction (see People vWoodard, 93 AD3d 944, 946 [2012]; People v Wilson, 78 AD3d 1213, 1215-1216 [2010], lvdenied 16 NY3d 747 [2011]; People v Rosa, 47 AD3d 1009, 1010 [2008], lvdenied 10 NY3d 816 [2008]). Overall, the court's compromise was a providentexercise of the court's discretion inasmuch as it reflected a measured balance of theprobative value and limited the potential prejudicial effect of the evidence in question(see People v Young, 115 AD3d at 1014; People v Mattis, 108 AD3d at875; People v Wolfe, 103 AD3d at 1036).
Defendant's challenge to the severity of his sentence is also unpersuasive.Notwithstanding the fact that County Court imposed the maximum allowable sentencefor the most serious offense (see Penal Law § 70.06 [3] [d]), whenwe consider defendant's criminal history—which includes two prior violentfelonies—his parole status at the time of the offense, [*5]the extensive nature of the criminal enterprise that heorchestrated and his refusal to take responsibility for his participation in these crimes, weperceive no extraordinary circumstances or abuse of County Court's discretionwarranting modification of the sentence (see People v Coutant, 111 AD3d 981, 982 [2013]; People v Rockwell, 18 AD3d969, 971 [2005], lv denied 5 NY3d 768 [2005]).
To the extent not specifically addressed herein, defendant's remaining contentionshave been considered and found to be without merit.
Peters, P.J., McCarthy and Egan Jr., JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1:Defendant failed topreserve his challenge to the legal sufficiency of the evidence establishing his possessionof the items in his apartment, as his motion to dismiss at the close of the People's casewas not directed at this specific ground (see People v Greenfield, 112 AD3d 1226, 1226 [2013]).
Footnote 2:Gorney testified thatBetter Choice was a business that she and defendant made up using an address that wasfound in a telephone book.