| People v Box |
| 2016 NY Slip Op 08664 [145 AD3d 1510] |
| December 23, 2016 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vBrandon W. Box, Appellant. |
The Abbatoy Law Firm, PLLC, Rochester (David M. Abbatoy, Jr., of counsel), fordefendant-appellant.
Brandon W. Box, defendant-appellant pro se.
Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Alex R. Renzi, J.),rendered December 11, 2013. The judgment convicted defendant, upon a jury verdict, ofidentity theft in the first degree and falsifying business records in the first degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him, following a jurytrial, of identity theft in the first degree (Penal Law § 190.80 [1]) andfalsifying business records in the first degree (§ 175.10), based onallegations that he applied for a credit card in his grandfather's name and then either he orhis accomplice used that credit card to make over $2,000 in cash withdrawals or gift cardpurchases at two different Wal-Mart stores over the course of one week. To the extentthat defendant contends that the evidence is legally insufficient to establish that themultiple uses of the credit card were part of a single, intentional crime as opposed toseparate and distinct lesser crimes, we conclude that defendant failed to preserve thatcontention for our review by a timely motion to dismiss directed at that specificdeficiency in the proof (see People v Gray, 86 NY2d 10, 19 [1995]). Were we toreach the merits of that contention, we would conclude that there is sufficient evidencethat the repeated use of the credit card "was governed by a single intent and a generalillegal design" (People v Cox, 286 NY 137, 143 [1941], rearg denied 286NY 706 [1941]).
In his pro se supplemental brief, defendant contends that the evidence is legallyinsufficient to establish that he assumed his grandfather's identity. That contention is alsonot preserved for our review (see Gray, 86 NY2d at 19) and, in any event, weconclude that it lacks merit (seePeople v Yuson, 133 AD3d 1221, 1222 [2015], lv denied 27 NY3d 1157[2016]).
Contrary to defendant's contention, viewing the evidence in light of the elements ofthe crimes as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), weconclude that the verdict is not against the weight of the evidence with respect todefendant's intent to defraud, an element of both offenses (see generally People vBleakley, 69 NY2d 490, 495 [1987]). Although the grandfather did not testify, theevidence at trial established that defendant lacked the grandfather's permission to applyfor and use the credit card, thereby establishing that defendant acted with an intent todefraud. Defendant filed the application in the predawn hours of January 18, 2013 and,although he testified that he filed the application in the presence of and with thepermission of his grandfather, defendant's sister, with whom the grandfather lived,testified that defendant did not visit his grandfather during the entire month of January2013. Moreover, the accomplice testified that defendant filed the application online at hisown residence without the grandfather's knowledge or consent. Defendant and theaccomplice admitted at trial that they made over $1,000 in cash withdrawals and that theyused that money to buy crack cocaine. From documentary exhibits and the accomplice'stestimony, the People established that defendant and the accomplice purchased over$1,000 in gift cards, which they traded for crack cocaine. In a recorded telephone callwith his mother, defendant attempted to ensure that the grandfather would not testify attrial, which would be illogical if, in fact, defendant had the grandfather's permission toapply for and use the credit card.
Defendant failed to preserve for our review his contention that Supreme Courtimproperly limited defense counsel's summation (see People v Kimmy, 137 AD3d 1723, 1723-1724 [2016],lv denied 27 NY3d 1134 [2016]; People v Gong, 30 AD3d 336, 336 [2006], lvdenied 7 NY3d 812 [2006]), and we decline to exercise our power to review thatcontention as a matter of discretion in the interest of justice (see CPL 470.15 [6][a]). Moreover, although defendant contends that the prosecutor improperly shifted theburden of proof during summation, we conclude that reversal is not warranted becausethe prosecutor's "single improper comment was not so egregious that defendant wasthereby deprived of a fair trial" (People v Willson, 272 AD2d 959, 960 [2000],lv denied 95 NY2d 873 [2000]). We note that the court "sustained defendant'sobjection to the improper comment and instructed the jury to disregard it, and the jury ispresumed to have followed the court's instructions" (People v Smalls, 100 AD3d 1428, 1430 [2012], lvdenied 21 NY3d 1010 [2013]).
Defendant contends that the indictment was duplicitous and multiplicitous and,further, that the testimony at trial rendered the indictment duplicitous. The Court ofAppeals has unequivocally held that "issues of non-facial duplicity, like those of facialduplicity, must be preserved for appellate review," and defendant failed to do so by eithera motion to dismiss the indictment or an objection at trial (People v Allen, 24 NY3d441, 449-450 [2014]; seePeople v Rivera, 133 AD3d 1255, 1256 [2015], lv denied 27 NY3d1154 [2016]). Defendant likewise failed to preserve for our review his multiplicitycontention "inasmuch as [he] failed to challenge the indictment on that ground" (People v Fulton, 133 AD3d1194, 1194 [2015], lv denied 26 NY3d 1109 [2016], deniedreconsideration 27 NY3d 997 [2016]; see People v Morey, 224 AD2d 730,731 [1996], lv denied 87 NY2d 1022 [1996]). We decline to exercise our powerto review those contentions as a matter of discretion in the interest of justice (seeCPL 470.15 [6] [a]).
With respect to count two, charging defendant with falsifying business records in thefirst degree (Penal Law § 175.10), defendant contends that this countimpermissibly "double counts" defendant's single criminal intent in violation of People v Cahill (2 NY3d14 [2003]). We reject that contention. Section 175.10 provides that a person is guiltyof falsifying business records in the first degree if he or she commits the crime offalsifying business records in the second degree and "his [or her] intent to defraudincludes an intent to commit another crime or to aid or conceal the commission thereof."Defendant thus contends that his intent to defraud in using the credit card was "notmeaningfully independent of his intent to defraud through commission (or concealment)of the identity theft associated with gaining the credit card."
Defendant's reliance on Cahill in support of that contention is misplaced. InCahill, the defendant was charged with murder in the first degree under PenalLaw § 125.27 (1) (a) (vii), based on the aggravating factor that the victimwas killed during the commission of a burglary. In that case, the crime the defendantintended to commit for purposes of the underlying burglary was the murder of the victim,and the Court thus held that, "[i]f the burglar intends only murder, that intent cannot beused both to define the burglary and at the same time bootstrap the second degree(intentional) murder to a capital crime" (id. at 65). In short, the intent to commitmurder could not serve as both the basis for the crime (intentional murder) as well as thebasis for the aggravating factor (burglary committed with the intent to commit the crimeof murder) for the same murder charge. To do so would "double count" the samecriminal intent in a single charge. Here, however, defendant's intent to commit acrime, an element of falsifying business records in the first degree, was the intent tocommit the separate and distinct crime of identity theft. We thus conclude that, even ifdefendant's intent to defraud was the same in both charges, the indictment did notimpermissibly double-count that intent in a single charge.
Also with respect to count two, defendant contends that the court's instruction on thatcharge violated the rule of People v Gaines (74 NY2d 358 [1989]) and may haveresulted in a lack of unanimity in the verdict in violation of People v McNab (167AD2d 858 [1990]). Because defendant failed to object to the charge as given, weconclude that those contentions are not preserved for our review (see Allen, 24NY3d at 449; People v Curella, 296 AD2d 578, 578 [2002]; People vNelson, 186 AD2d 1068, 1068 [1992], lv denied 81 NY2d 764 [1992]), andwe decline to exercise our power to review those contentions as a matter of discretion inthe interest of justice (see CPL 470.15 [6] [a]).
Throughout the proceedings in the trial court, defendant requested a substitution ofcounsel, contending that defense counsel was operating under a conflict of interestbecause another attorney in the Public Defender's office had previously represented theaccomplice on unrelated charges. In both his main and pro se supplemental briefs,defendant contends that the court erred in refusing to substitute counsel and in deferringto defense counsel's conclusion that there was no conflict of interest. We rejectdefendant's contentions. A review of the record establishes that the court made therequisite minimal inquiry (seePeople v Porto, 16 NY3d 93, 99-101 [2010]; People v Sides, 75 NY2d822, 824-825 [1990]), and properly concluded that there was no basis to substitutecounsel where, as here, defendant failed to "show that the conduct of his defense was infact affected by the operation of the conflict of interest" (People v Bones, 309AD2d 1238, 1240 [2003], lv denied 1 NY3d 568 [2003] [internal quotationmarks omitted]; see People v Harris, 99 NY2d 202, 210 [2002]; People v Weeks, 15 AD3d845, 847 [2005], lv denied 4 NY3d 892 [2005]).
In both his main and pro se supplemental briefs, defendant contends that he wasdenied effective assistance of counsel based on defense counsel's failure to make variousmotions or requests. Although defense counsel failed to make certain motions, "[t]herecan be no denial of effective assistance of trial counsel arising from counsel's failure to'make a motion or argument that has little or no chance of success' " (People v Caban, 5 NY3d143, 152 [2005]), and "[d]efendant . . . failed to demonstrate a lack ofstrategic or other legitimate explanations for defense counsel's alleged ineffectiveness in. . . failing to request" certain jury instructions, including a missing witnesscharge (People v Hicks, 110AD3d 1488, 1489 [2013], lv denied 22 NY3d 1156 [2014]; see People v Myers, 87 AD3d826, 828 [2011], lv denied 17 NY3d 954 [2011]; see generally People vBenevento, 91 NY2d 708, 712 [1998]). To the extent that defendant contends in hispro se supplemental brief that defense counsel lost a video containing exculpatoryevidence, that contention is based on matters outside the record and must be raised by amotion pursuant to CPL article 440 (see People v Weaver, 118 AD3d 1270, 1272 [2014], lvdenied 24 NY3d 965 [2014]).
Defendant contends in his pro se supplemental brief that he was entitled to dismissalof the indictment based on an alleged Payton violation; that defense counsel wasineffective in failing to request a hearing on that alleged violation; and that the courterred in denying his pro se motions seeking such a hearing. Defendant's contentions arewholly lacking in merit. Even assuming, arguendo, that defendant was arrested in hishome without a warrant in violation of Payton, we recognize that the remedy forsuch a violation would not be dismissal of the indictment but, rather, suppression of anyevidence obtained from defendant following that violation "unless the taint resultingfrom the violation has been attenuated" (People v Harris, 77 NY2d 434, 437[1991]). Inasmuch as there was no evidence that could be said to be a " 'productof' the alleged Payton violation," there was nothing to suppress and thus no basisto hold a Payton hearing (People v Jones, 38 AD3d 1272, 1273 [2007], lvdenied 9 NY3d 866 [2007], quoting New York v Harris, 495 US 14, 19[1990]).
Although defendant correctly contends in both his main and pro se supplementalbriefs that the court erred in refusing to instruct the jury on corroboration (seeCPL 60.22), "in light of the overwhelming corroborating proof of defendant's guilt, thefailure to charge the accomplice rule is harmless error" (People v Kimbrough,155 AD2d 935, 935 [1989], lv denied 75 NY2d 814 [1990]; see People v Fortino, 61 AD3d1410, 1411 [2009], lv denied 12 NY3d 925 [2009]). Finally, we rejectdefendant's contention that he was not properly sentenced as a second felony offender(see CPL 400.21). "The election by defendant to remain silent 'does not negatethe opportunity accorded him to controvert [the predicate felony statement]'. . . , and '[u]ncontroverted allegations in the statement shall be deemed tohave been admitted by the defendant' " (People v Neary, 56 AD3d 1224, 1224 [2008], lvdenied 11 NY3d 928 [2009]; see CPL 400.21 [3]; People v Woodall,145 AD2d 921, 921 [1988]). Present—Whalen, P.J., Centra, Lindley, NeMoyerand Troutman, JJ.