| People v Lee |
| 2018 NY Slip Op 06766 [165 AD3d 838] |
| October 10, 2018 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Tyrone Lee, Appellant. |
Alex Smith, Middletown, NY (Douglas Jones of counsel), for appellant.
Barbara D. Underwood, Attorney General, New York, NY (Priscilla Steward and Jodi A.Danzig of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Orange County (Nicholas DeRosa, J.), rendered April 6, 2016, convicting him of grand larceny in the second degree, identitytheft in the first degree (13 counts), and scheme to defraud in the first degree, upon a jury verdict,and sentencing him, as a second felony offender, to consecutive indeterminate terms ofimprisonment of 7
Ordered that the judgment is modified, on the law, by providing that the sentences imposedon the convictions of grand larceny in the second degree and scheme to defraud in the first degreeshall run concurrently with each other and concurrently with the consecutive sentences imposedon each conviction of identity theft in the first degree, all of which shall run concurrently withsentences imposed on convictions under a Westchester County indictment; as so modified, thejudgment is affirmed.
The defendant was indicted on charges related to an alleged identity theft scheme by whichhis accomplice obtained personal customer information through her employment at WachoviaBank, and the defendant used that information to effectuate fraudulent counter withdrawals fromthe bank. Following a jury trial, the defendant was convicted of grand larceny in the seconddegree, 13 counts of identity theft in the first degree, and scheme to defraud in the first degree,and sentenced to consecutive terms of imprisonment on each conviction.
We agree with the County Court's determination to deny the defendant's motion to dismissthe indictment on statutory double jeopardy grounds. The defendant's prior convictions inWestchester County were for acts that were not part of the same criminal transaction as thecharges here, and, in any event, involved losses to different victims (see CPL 40.10 [2];40.20 [2] [e]; People v Luongo, 47 NY2d 418, 430 [1979]; People v Dallas, 46 AD3d 489,490 [2007]). Moreover, the current charges were not joinable with the crimes charged in theWestchester County indictment, as Westchester County did not have geographic jurisdiction overthem (see CPL 40.40 [2]; 200.20 [2] [a]; 20.40 [4]; People v Lindsly, 99 AD2d99, 102 [1984]). The remaining convictions relied upon by the defendant [*2]occurred subsequent to his convictions here and, thus, could notsupport his double jeopardy motion.
We agree with the County Court's determination to admit certain evidence of the defendant'ssubsequent bad acts related to a similar scheme involving JPMorgan Chase Bank. The evidencewas probative of the defendant's identity as a perpetrator of the Wachovia Bank scheme and hisacting in concert with his accomplice (see People v Arafet, 13 NY3d 460, 466 [2009]; People vCarter, 77 NY2d 95, 107 [1990]; People v Whitley, 14 AD3d 403, 405 [2005]). Moreover, theprobative value of the evidence outweighed the risk of prejudice to the defendant, particularlyconsidering the court's limiting instruction to the jury, which served to alleviate any prejudiceresulting from the admission of the evidence (see People v Kims, 24 NY3d 422, 439 [2014]). In addition, theprosecutor did not elicit evidence that exceeded the scope of the court's Molineux ruling(see People v Molineux, 168 NY 264 [1901]; People v Williams, 160 AD3d 665 [2018]).
Contrary to the defendant's contention, the prosecution established by a preponderance of theevidence that venue was proper in Orange County (see CPL 20.40 [1]; People vRibowsky, 77 NY2d 284, 291-292 [1991]; People v Guzman, 153 AD3d 1273, 1274 [2017]; People vMattina, 106 AD2d 586 [1984]). Furthermore, viewing the evidence in the light mostfavorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]), we find that itwas legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover,upon our independent review pursuant to CPL 470.15 (5), we are satisfied that the verdict of guiltwas not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]).
The defendant's specific contentions regarding the County Court's Sandoval ruling(see People v Sandoval, 34 NY2d 371, 374 [1974]) are unpreserved for appellate review(see People v Hawkins, 11 NY3d484, 494 [2008]; People vCutting, 150 AD3d 873, 875 [2017]). In any event, while the court improvidentlyexercised its discretion in permitting the People to cross-examine the defendant, should hetestify, on the fact that he had 38 prior felony convictions (see People v Bowles, 132AD2d 465, 467 [1987]; People v Myrick, 128 AD2d 732 [1987]; People v Hicks,88 AD2d 519, 520 [1982]; cf. People vWilliams, 49 AD3d 672 [2008], affd 12 NY3d 726 [2009]), the error did notdeprive the defendant of his right to a fair trial and was otherwise harmless, since there wasoverwhelming evidence of the defendant's guilt and no significant probability that a moreappropriate Sandoval ruling would have affected the result (see People v Grant, 7 NY3d 421,424-425 [2006]; People v Crimmins, 36 NY2d 230, 241-242 [1975]; People vReese, 181 AD2d 699, 700 [1992]).
As the People correctly concede, the sentences imposed on the defendant's convictions ofgrand larceny in the second degree and scheme to defraud in the first degree must be modified torun concurrently with each other and with the sentences imposed on his convictions of identitytheft in the first degree (see Penal Law § 70.25 [2]; People vLaureano, 87 NY2d 640, 643 [1996]). However, the consecutive sentences imposed on theconvictions of identity theft in the first degree were legally permissible (see People vBrown, 80 NY2d 361, 364 [1992]). The sentence, as modified, and as reduced by operationof law pursuant to Penal Law § 70.30 (1) (e), is not excessive (see People vSuitte, 90 AD2d 80 [1982]).
The defendant's remaining contentions are unpreserved for appellate review and, in anyevent, without merit. Balkin, J.P., Sgroi, Maltese and Christopher, JJ., concur.