| People v Yuson |
| 2015 NY Slip Op 08259 [133 AD3d 1221] |
| November 13, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vMorris B. Yuson, Appellant. |
Timothy P. Donaher, Public Defender, Rochester (David R. Juergens of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Daniel Gross of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Frank P. Geraci, Jr., J.),rendered March 7, 2012. The judgment convicted defendant, upon a jury verdict, ofidentity theft in the first degree (two counts) and criminal possession of a forgedinstrument in the second degree (two counts).
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of two counts each of identity theft in the first degree (Penal Law§ 190.80 [3]) and criminal possession of a forged instrument in the seconddegree (§ 170.25), stemming from two different incidents in whichdefendant deposited forged checks into his bank account. Defendant, relying on People v Barden (117 AD3d216, 224-230 [2014], lv granted 24 NY3d 959 [2014]), contends that theconviction of identity theft in the first degree is not supported by legally sufficientevidence because the People did not establish that he assumed the identity of anotherperson. We reject that contention. As relevant herein, the statute provides that "[a] personis guilty of identity theft in the first degree when he or she knowingly and with intent todefraud assumes the identity of another person by presenting himself or herself as thatother person, or by acting as that other person or by using personal identifyinginformation of that other person, and thereby . . . commits or attempts tocommit a class D felony" (§ 190.80 [3]). There was no evidence at trial thatdefendant presented himself as the victims or acted as those victims, and the Peopleproceeded on the theory that defendant assumed the identity of the victims by using theirpersonal identifying information. In relevant part, the term " 'personal identifyinginformation' means a person's name, address, telephone number, date of birth, driver'slicense number, social security number, place of employment . . . [or]checking account number or code" (§ 190.77 [1]).
We decline to follow Barden, which concludes that "assumption of identity isnot necessarily accomplished when a person uses another's personal identifyinginformation" (id. at 227), and that the People must prove both that a defendantused the personal identifying information of the victim and that he assumed the victim'sidentity (see id. at 226-227). Instead, we conclude that the statute is unambiguousand defines the phrase "assumes the identity of another person" by the phrase thatimmediately follows it, i.e., by, inter alia, using the personal identifying information ofthat other person (Penal Law § 190.80). Therefore, inasmuch as the Peopleestablished that defendant used the personal identifying information of the victims, theythereby established that defendant assumed their identities for the purposes of thestatute.
Defendant's further challenge to the legal sufficiency of the evidence with respect tothe identity theft convictions is not preserved for our review (see People v Gray,86 NY2d 10, 19 [1995]). Viewing the evidence in light of the elements of the crime ofidentity theft in the first degree as charged to the jury (see People v Danielson, 9NY3d 342, 349 [2007]), we conclude that the verdict is not against the weight of theevidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). Finally,defendant contends that the ability of certain jurors to remain fair and impartial wasaffected by an allegedly prejudicial remark made by a police officer in their presence.County Court questioned the jurors who were present when the remark was made anddetermined that none of them overhead the prejudicial remark (see generally People vBuford, 69 NY2d 290, 299 [1987]). The court therefore did not abuse its discretionin denying defendant's motion for a mistrial (see People v Matt, 78 AD3d 1616, 1617 [2010], lvdenied 15 NY3d 954 [2010]; People v Bassett, 55 AD3d 1434, 1435 [2008], lvdenied 11 NY3d 922 [2009]; People v Figueroa, 37 AD3d 246, 247 [2007], lv denied8 NY3d 984 [2007]). Present—Smith, J.P., Centra, Valentino, Whalen andDeJoseph, JJ.