| People v Rush |
| 2017 NY Slip Op 02221 [148 AD3d 1601] |
| March 24, 2017 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, v Terrie J.Rush, Appellant. |
Timothy P. Donaher, Public Defender, Rochester, Phillips Lytle LLP, Buffalo (Deena K.Mueller of counsel), for defendant-appellant.
Sandra Doorley, District Attorney, Rochester (Leah R. Mervine of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Melchor E. Castro, A.J.), renderedAugust 12, 2011. The judgment convicted defendant, upon a jury verdict, of identity theft in thefirst degree and criminal possession of a forged instrument in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting her upon a jury verdict ofidentity theft in the first degree (Penal Law § 190.80 [3]) and criminal possession ofa forged instrument in the second degree (§ 170.25). Defendant is convicted ofassuming the identity of another person by using the name of another person and depositing aforged instrument into a bank account set up in the name of that person. The People presentedevidence that the check at issue had been stolen from the company named as payor within amonth before the transaction at issue occurred. The person named as payee on the check at issueand in whose purported account the check was deposited testified that he did not set up the bankaccount, nor did he endorse the check at issue or ask defendant to conduct any bankingtransactions for him. Photos depicting a woman making a deposit at the time the check at issuewas deposited and depicting a woman withdrawing funds from that account at an ATM intemporal proximity to the deposit also were in evidence. Contrary to defendant's contention,viewing the evidence in the light most favorable to the People (see People v Contes, 60NY2d 620, 621 [1983]), we conclude that the evidence is legally sufficient to support theconviction of identity theft in the first degree (see generally People v Bleakley, 69 NY2d490, 495 [1987]).
We reject defendant's contention that the phrase "assumes the identity of another person" is adiscrete element that must be proved (see People v Yuson, 133 AD3d 1221, 1221-1222 [2015], lvdenied 27 NY3d 1157 [2016]; seealso People v Box, 145 AD3d 1510, 1511 [2016]). In Yuson, we expresslydeclined to follow the decision of the First Department in People v Barden (117 AD3d 216, 224-230 [2014], revd onother grounds 27 NY3d 550 [2016]), and we wrote that "the statute is unambiguous anddefines the phrase 'assumes the identity of another person' by the phrase that immediately followsit, i.e., by, inter alia, using the personal identifying information of that person" (id. at1222). We thus concluded in Yuson that, "inasmuch as the People established thatdefendant used the personal identifying information of the victims, they thereby established thatdefendant assumed their identities for the purposes of the statute" (id.). Likewise, here thePeople established that defendant used the personal identifying information of another person,i.e., that person's name and bank account number (see Penal Law § 190.77[1]), to defraud the bank herein (see § 190.80).
We also reject defendant's contention that, even assuming that she used the person's personalidentifying information, she did not "thereby" commit the offense of criminal possession of aforged instrument because she possessed the check before she deposited it and [*2]the use of the identifying information did not cause her to committhe offense. We reject defendant's overly restrictive interpretation of the term "thereby" to mean"because of this" or "as a result of this action," and we instead conclude that the correctinterpretation of the term is "[b]y that means" or "in that way" (Black's Law Dictionary 1707[10th ed 2014]). We therefore conclude that the evidence is legally sufficient to establish thatthere is a "valid line of reasoning and permissible inferences which could lead a rational personto the conclusion reached by the jury on the basis of the evidence at trial" (Bleakley, 69NY2d at 495), i.e., that defendant assumed the identity of another person by using personalidentifying information of that person and thereby committed the crime of criminal possession ofa forged instrument by uttering the check, that is, by presenting it as if it were genuine (seeBlack's Law Dictionary 1781 [10th ed 2014]; see also William C. Donnino, PracticeCommentary, McKinney's Cons Laws of NY, Book 30, Penal Law § 170.00 at330).
We further conclude that, contrary to the contention of defendant, when viewing the elementsof the crimes as charged to the jury (seePeople v Danielson, 9 NY3d 342, 349 [2007]), the verdict is not against the weight ofthe evidence with respect to the element of knowledge, and with respect to identity (seegenerally Bleakley, 69 NY2d at 495). Even assuming, arguendo, that a different verdictwould not have been unreasonable, we conclude that the jury did not fail to give the evidence theweight it should be accorded (see id.). Specifically, the People presented evidence thatdefendant both deposited the stolen check at issue into the account and withdrew funds from thataccount, and the named payee and account holder testified that he did not set up the account, didnot endorse the check and did not authorize defendant to conduct any banking transactions on hisbehalf. Furthermore, the jury had the opportunity to compare the photos of the person making adeposit and a withdrawal at the ATM at the relevant times and was in a position to make "anindependent assessment regarding whether the [person] in the bank photographs was indeed thedefendant" (People v Russell, 79 NY2d 1024, 1025 [1992]). Contrary to defendant'sfurther contention, the photographic evidence taken at the ATM machine was relevant withrespect to intent, knowledge and identity, and thus County Court did not abuse its discretion inadmitting that evidence upon determining that it was more probative than prejudicial (see People v Goodrell, 130 AD3d1502, 1503 [2015]).
We agree with defendant, however, that the court erred in closing the courtroom during juryselection because, inter alia, there was standing room only, thereby excluding the father ofdefendant's children from the courtroom (see People v Floyd, 21 NY3d 892, 893-894 [2013]; People vTorres [appeal No. 1], 97 AD3d 1125, 1126 [2012], affd 20 NY3d 890 [2012]; People v Martin, 16 NY3d 607,611 [2011]). Indeed, under those circumstances, the court was "required to consider alternativeseven if neither party [had] suggest[ed] any" (Martin, 16 NY3d at 612). We conclude,however, that, under the circumstances presented here, the court properly denied defendant'smotion pursuant to CPL 330.30 (1), seeking to set aside the verdict based on the courtroomclosure.
As an initial matter, by requesting a hearing based upon the court's recollection that a deputyleft the courtroom after the venire panel was seated in order to locate defendant's companion,defendant waived her contention that the court improperly expanded the record when itconducted a hearing on her CPL 330.30 (1) motion. The trial record establishes that, rather thanclosing the courtroom until some prospective jurors were excused (cf. Floyd, 21NY3d at 893; Torres, 97 AD3d at 1127; Martin, 16 NY3d at 610), the court statedthat defendant's companion was required to leave the courtroom until the first 21 prospectivejurors were seated for voir dire, and that the man would be notified when that processwas completed. The court security officer testified at the hearing that, after the first 21prospective jurors were seated, she and the other court security officer cleared the rear row of thecourtroom and she went into the lobby to find defendant's companion (cf. Torres, 97AD3d at 1127), but that no one was out there, with the exception of another deputy. She testifiedthat "the judge was just beginning to give his speech to the jury panel" when she exited thecourtroom to look for defendant's companion. She advised defense counsel at the first break thatthe man was "gone." She testified that she looked through the windows of the courtroom doorsthroughout the day and did not see the man. We conclude that under the circumstances presentedhere, where the process of jury selection had not yet begun before the courtroom was reopened(cf. Torres, 97 AD3d at 1126-1127; Martin, 16 NY3d at 613; see generally People v Alvarez, 20NY3d 75, 81 [2012], cert denied 569 US &mdash, 133 S Ct 2004 [2013]), theimproper closing of the courtroom was "too trivial to warrant the remedy of nullifying anotherwise properly conducted . . . criminal trial" (Gibbons v Savage, 555F3d 112, 121 [2nd Cir 2009], cert denied 558 US 932 [2009]). Present—Whalen,P.J., Centra, Peradotto, DeJoseph and Scudder, JJ.