| People v Blount |
| 2015 NY Slip Op 05220 [129 AD3d 1303] |
| June 18, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vResean Blount, Appellant. |
Sandra M. Colatosti, Albany, for appellant, and appellant pro se.
P. David Soares, District Attorney, Albany (Brittany L. Grome of counsel), forrespondent.
McCarthy, J. Appeal from a judgment of the County Court of Albany County(Herrick, J.), rendered April 19, 2012, upon a verdict convicting defendant of the crimesof criminal mischief in the second degree and criminal possession of a forged instrumentin the second degree (eight counts).
In January 2011, police officers were dispatched to a motel to investigate a report,called in from a California resident, indicating that her credit card had just been used,without her prior authorization or consent, to rent a motel room in the Town of Colonie,Albany County. Upon arrival, police officers located defendant, among others, in themotel room that had been rented with the unauthorized credit card. The officers alsofound, among other things, a laptop computer, a credit card reader/skimmer device,numerous prepaid credit, debit and gift cards and various receipts for purchases made inand around the Capital District. Thereafter, a grand jury handed down a 16-countindictment charging defendant with one count each of criminal possession of forgerydevices, unlawful possession of a skimmer device in the second degree and criminalmischief in the second degree and 13 counts of criminal possession of a forgedinstrument in the second degree. Following a jury trial, defendant was convicted of onecount of criminal mischief in the second degree and eight counts of criminal possessionof a forged instrument in the second degree. Defendant was thereafter sentenced, as apredicate felony offender, to an aggregate prison term of 9 to 18 years. Defendant nowappeals.
Defendant's contention that he was convicted of multiplicitous counts is unpreserved[*2]given that he did not move before County Court todismiss any counts on that basis (see People v Ariosa, 100 AD3d 1264, 1267 [2012], lvdenied 21 NY3d 1013 [2013]; People v Thompson, 34 AD3d 931, 932 [2006], lvdenied 7 NY3d 929 [2006]). In any event, defendant's invitation to this Court toinvoke its interest of justice jurisdiction is unavailing given that the multiplicity argumentis without merit. An indictment is considered multiplicitous when two or more separatecounts charge the same crime (see People v Alonzo, 16 NY3d 267, 269 [2011]; Peoplev Demetsenare, 243 AD2d 777, 779 [1997], lv denied 91 NY2d 833 [1997]).Here, although the seven contested counts allegedly occurred on the same day and referto the same victims, they occurred at four different locations, each at distinct times, andconstituted separate transactions referencing distinct credit, debit or gift card receipts,each for a different monetary value. Accordingly, none of the seven contested countsoccurred during a " 'single, uninterrupted occurrence' " with any of theother counts, and therefore, were this issue before us, we would find that the counts werenot multiplicitous (People v Alonzo, 16 NY3d at 270, quoting People v Moffitt, 20 AD3d687, 690 [2005], lv denied 5 NY3d 854 [2005]).
Next, defendant's motion to dismiss the indictment did not allege that the Peoplepresented materially false evidence to the grand jury or that there was legally insufficientevidence to support the indictment and, therefore, those arguments are unpreserved forour review (see People vGoldston, 126 AD3d 1175, 1176 [2015]; People v Whitehead, 119 AD3d 1080, 1081 [2014], lvdenied 24 NY3d 1048 [2014]). Further, corrective action in the interest of justice isnot warranted. The fact that the transaction receipts did not specifically name the victims,as alleged in the indictment, did not mean that there was not ample evidence to supportthe indictments; proof correlated the allegedly fraudulent purchases based uponcredit/debit card numbers on the receipt. Otherwise, the errors in the indictmentreferencing a victim's name on receipts are insufficient to merit the exceptional remedyof dismissal (see People v Whitehead, 119 AD3d at 1081). Further, the recordprovides no support for a conclusion that the People relied on testimony that they knewto be false or that they "knowingly permitted any inaccurate testimony to stand" (People v Davis, 83 AD3d1210, 1212 [2011], lv denied 17 NY3d 794 [2011] reconsiderationdenied 17 NY3d 815 [2011]).
Defendant's contention that County Court failed to properly admonish the jury is alsounpreserved (see People vMiller, 118 AD3d 1127, 1130 [2014], lv denied 24 NY3d 1086 [2014];People v Payton, 31 AD3d580, 581 [2006], lv denied 7 NY3d 850 [2006]). In any event, although thebest practice is to include references to specific electronic communication methods andsocial media websites that are representative of those prohibited for communicationand/or research purposes (see CJI2d[NY] Jury Admonitions in PreliminaryInstructions [rev May 5, 2009]), County Court's admonitions here—referring tothe Internet and electronic means of communication/research generally—did notdeprive defendant of due process of law (see People v Williams, 46 AD3d 585, 586 [2007], lvdenied 10 NY3d 772 [2008]).
Next, the People did not improperly withhold evidence. In order to establish aRosario violation such as the one alleged, " 'it is incumbent upon adefendant to show that the claimed Rosario material was available and was notturned over to the defense' " (People v Tucker, 40 AD3d 1213, 1215 [2007], lvdenied 9 NY3d 882 [2007], quoting People v Gillis, 220 AD2d 802, 805[1995], lv denied 87 NY2d 921 [1996]). Prior to trial, the People acknowledgedthat they had turned over all Rosario material, without objection from defendant.Otherwise, the record is devoid of evidence that the People withheld Rosariomaterial. Accordingly, defendant's Rosario argument is without merit.
Finally, defendant was not deprived of the effective assistance of counsel. Each ofthe alleged deficiencies relates to trial counsel's failure to pursue certain legal argumentsthat have [*3]been raised on this appeal. Havingaddressed such arguments and having found each of them to be without merit, weconclude that defense counsel did not provide ineffective assistance in failing to furtherarguments that had "little or no chance of success" (People v Stultz, 2 NY3d 277, 287 [2004]; see People v Desmond, 118AD3d 1131, 1136, [2014], lv denied 24 NY3d 1002 [2014]; People v Bahr, 96 AD3d1165, 1167 [2012], lv denied 19 NY3d 1024 [2012]).
Defendant's remaining contentions lack merit.
Lahtinen, J.P., Garry and Rose, JJ., concur. Ordered that the judgment isaffirmed.