| People v Boehlke |
| 2016 NY Slip Op 01520 [137 AD3d 1321] |
| March 3, 2016 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vWilliam Boehlke, Appellant. |
Hug Law, PLLC, Troy (Matthew C. Hug of counsel), for appellant.
P. David Soares, District Attorney, Albany (Vincent Stark of counsel), forrespondent.
Devine, J. Appeal from a judgment of the County Court of Albany County (Lynch,J.), rendered October 11, 2013, upon a verdict convicting defendant of the crimes ofgrand larceny in the second degree and identity theft in the first degree.
Defendant was charged in an indictment with grand larceny in the second degree andidentity theft in the first degree as a result of accusations that, from July 2011 to January2013, he used the victim's ATM card to make substantial unauthorized withdrawals fromher checking account. He was convicted as charged following a jury trial. County Courtimposed sentences of time served and a probation term of five years on each count, to beserved concurrently, and directed him to pay restitution.
Defendant now appeals.
Defendant argues that various elements of the charged crimes were not establishedby legally sufficient evidence, but those contentions are unpreserved given his failure tospecifically advance them in his trial motion to dismiss (see People v Carncross, 14NY3d 319, 324-325 [2010]; People v Gray, 86 NY2d 10, 19 [1995]).Nevertheless, "as per defendant's request, we remain obligated to conduct a weight of theevidence review for both of the charged crimes, which necessarily involves an evaluationof whether all elements of the charged crimes were proven beyond a reasonable doubt attrial" (People v Briggs, 129AD3d 1201, 1202 [2015] [internal quotation marks, brackets and citations omitted],lv denied 26 NY3d 1038 [2015]; see People v Danielson, 9 NY3d 342, 348-349[2007]).
Defendant was the victim's paramour and lived at her goat farm beginning in 2010,and [*2]the victim paid for all of their expenses withmoney provided by her mother. Defendant was unemployed, but was allowed to live ather farm for free in return for him doing work around it. The victim was the only oneauthorized to use her checking account and ATM card, and she was not in the habit ofpermitting defendant to use her card, although she had done so "once or twice" over theperiod that he lived at the farm. The victim did not review her account statements duringthat period with any rigor, but noticed in the fall of 2012 that withdrawals of $300 werebeing made from her account "pretty much on a daily basis." She initially believed thatthe items were denoting credit card payments but, after speaking to her more financiallysavvy mother in January 2013, reported the unauthorized ATM withdrawals to her bankand to the State Police. The subsequent investigation revealed that over 300 unauthorizedwithdrawals, amounting to approximately $90,000, had been made from July 2011onward. After the victim reviewed video evidence from the ATM showing that defendanthad made the most recent withdrawal, the two engaged in a recorded telephoneconversation in which defendant can be heard apologizing for his actions and repeatedlyoffering to repay her.
Defendant presented a different account of events, asserting that the victim gave himthe ATM card and her personal identification number, permitted him to make thewithdrawals and usually took all of the money upon his return to the farm. He furtherdownplayed his admissions in the recorded telephone call, claiming that he was rattled bythe victim's accusations and was just "trying to appease" her. The jury, however,obviously chose not to credit those assertions. Accordingly, after neutrally weighing theconflicting evidence regarding the intent of defendant in making the withdrawals andwhether they benefitted the victim, and giving deference to the credibility determinationsof the jury, we cannot say that the verdict convicting him of grand larceny in the seconddegree was against the weight of the evidence (see People v Brown, 107 AD3d 1145, 1147 [2013], lvdenied 22 NY3d 1039 [2013]; People v Farnsworth, 103 AD3d 982, 983-984[2013]).
Lastly, there is dispute as to whether it must be shown that an individual mustassume a victim's identity, as opposed to simply using his or her personal identifyinginformation, in order to support a conviction for identity theft in the first degree (see People v Barden, 117AD3d 216, 227 [2014], lv granted 24 NY3d 959 [2014]; but see People v Yuson, 133AD3d 1221, 1221-1222 [2015]), but we need not resolve the question here. The jurywas free to, and did, credit the proof that defendant, without the knowledge orpermission of the victim, used her ATM card and personal identification number toobtain over $2,000 from an ATM (see Penal Law §§ 190.77,190.80 [1]). Those actions "impl[y] that the person presenting or using the card isthe cardholder, even if the person does not affirmatively present himself or herself assuch," and defendant's conviction for identity theft in the first degree is therefore notagainst the weight of the evidence (People v Barden, 117 AD3d at 227-228; see People v Vandermuelen, 42AD3d 667, 670 [2007], lv denied 9 NY3d 965 [2007]).
McCarthy, J.P., Garry and Rose, JJ., concur. Ordered that the judgment isaffirmed.