People v Petithomme

2015 NY Slip Op 06962 [131 AD3d 877]

September 29, 2015

Appellate Division, First Department

As corrected through Wednesday, November 4, 2015

[*1]

The People of the State of New York,Respondent, v Louis Petithomme, Appellant.

Robert S. Dean, Center for Appellate Litigation, New York (Claudia B. Flores ofcounsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (John T. Hughes of counsel), forrespondent.

Judgment, Supreme Court, New York County (Michael Obus, J., at suppressionhearing; Daniel McCullough, J., at jury trial and sentencing), rendered August 10, 2012,as amended August 22, 2012, convicting defendant of identity theft in the first andsecond degrees and forgery in the second degree, and sentencing him, as a second felonyoffender, to an aggregate term of 21/2 to 5 years, unanimouslyaffirmed.

The court properly denied defendant's motion to suppress a cell phone recoveredfrom his person at the time of his arrest. There is no basis for disturbing the court'scredibility determinations. Defendant's pattern of behavior, both before and after beingstopped by the police, strongly indicated that he was a participant in his companion'sfraudulent credit card purchase, and provided probable cause for defendant's arrest(see e.g. People v Arriaga, 204 AD2d 96 [1st Dept 1994]). In order to establishprobable cause, the People were not required to prove accessorial liability under PenalLaw § 20.00 beyond a reasonable doubt.

The court properly exercised its discretion in admitting evidence of an unchargedattempted online purchase involving the same fraudulently obtained credit card that wasused in the charged crime. This evidence was relevant to establish defendant'sparticipation in the charged crime and his intent to defraud (see e.g. People v Scott, 85AD3d 481 [1st Dept 2011], lv denied 17 NY3d 821 [2011]). The probativevalue of this evidence outweighed any potential for prejudice. Defendant's claim that thecourt erred in failing to give a limiting instruction is unpreserved, and we decline toreview it in the interest of justice. Even if a limiting instruction [*2]would have been appropriate, defendant may have hadstrategic reasons to avoid highlighting this evidence (see People v Wilson, 123 AD3d 626 [1st Dept 2014]).

We perceive no basis for reducing the sentence. Concur—Friedman, J.P.,Andrias, Saxe, Gische and Kapnick, JJ.