| People v Eckerd |
| 2018 NY Slip Op 03243 [161 AD3d 1508] |
| May 4, 2018 |
| Appellate Division, Fourth Department |
[*1](May 4, 2018)
| The People of the State of New York,Respondent, v Kathleen M. Eckerd, Appellant. |
Timothy P. Donaher, Public Defender, Rochester (Mary P. Davison of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Francis A. Affronti, J.),rendered June 14, 2011. The judgment convicted defendant upon a jury verdict of, inter alia,identity theft in the first degree and grand larceny in the third degree (five counts).
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 of,inter alia, identity theft in the first degree (Penal Law § 190.80 [1]) and five countsof grand larceny in the third degree (§ 155.35 [1]). The conviction arises from aseries of transactions in which defendant stole money from her employer by withdrawing moneyfrom a bank account that she unlawfully established in the name of her employer's corporationand then double-billed corporate clients and issued bad checks to cover up her thefts.
By failing to renew her motion to dismiss count one of the indictment at the close of proof,defendant failed to preserve for our review her contention that the evidence is legally insufficientto support the conviction of identity theft (see People v Hines, 97 NY2d 56, 61 [2001],rearg denied 97 NY2d 678 [2001]; People v Smith, 32 AD3d 1291, 1292 [4th Dept 2006], lvdenied 8 NY3d 849 [2007]). In any event, defendant's contention is without merit. ThePeople established that defendant assumed the identity of the victim by using his personalidentifying information and used the personal identifying information of the victim to commit thetheft. Thus, the evidence is legally sufficient with respect to identity theft (see People vRoberts, — NY3d &mdash, &mdash, 2018 NY Slip Op 03172, *5-7, [2018]; People v Yuson, 133 AD3d 1221,1221-1222 [4th Dept 2015], lv denied 27 NY3d 1157 [2016]).
We reject defendant's further contention that she received ineffective assistance of counsel.There is nothing in the record to indicate that defendant was deprived of meaningfulrepresentation in the jury selection process or at trial (see generally People v Baldi, 54NY2d 137, 147 [1981]). Moreover, there were legitimate, plausible explanations for defensecounsel's handling of evidentiary matters at trial, and thus defendant failed "to demonstrate theabsence of strategic or other legitimate explanations" for counsel's alleged shortcomings(People v Rivera, 71 NY2d 705, 709 [1988]; see People v Kurkowski, 117 AD3d 1442, 1443 [4th Dept 2014]).Defendant's contention that she received ineffective assistance because counsel failed to object toprosecutorial misconduct is without merit, inasmuch as the prosecutor did not engage inprosecutorial misconduct (see People vMartinez, 114 AD3d 1173, 1174 [4th Dept 2014], lv denied 22 NY3d 1200[2014]). Viewing the evidence in light of the elements of the crime of identity theft as charged tothe jury (see People v Danielson, 9NY3d 342, 349 [2007]), we reject defendant's further contention that the verdict is againstthe weight of the evidence with respect to that crime (see generally People v Bleakley, 69NY2d 490, 495 [1987]). Present—Peradotto, J.P., Carni, Lindley, Curran and Troutman,JJ.