| People v Arhin |
| 2018 NY Slip Op 07199 [165 AD3d 1487] |
| October 25, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Roger Arhin, Appellant. |
Dominic J. Cornelius, Public Defender, Hudson (Jessica Howser of counsel), forappellant.
Paul Czajka, District Attorney, Hudson (Trevor O. Flike of counsel), for respondent.
Aarons, J. Appeal from a judgment of the County Court of Columbia County (Nichols, J.),rendered May 18, 2016, upon a verdict convicting defendant of the crime of attempted identitytheft in the first degree.
On September 2, 2014, defendant went to a UPS facility, presented himself as the victim andpicked up a package. On September 4, 2014, defendant returned to the UPS facility to pick upother packages and, even though the packages were supposed to be held at the UPS facility, onewas erroneously delivered to the victim's residence. Defendant was charged by indictment withidentity theft in the first degree in connection with the September 2, 2014 incident and attemptedidentity theft in the first degree in connection with the September 4, 2014 incident. Following ajury trial, defendant was acquitted of identity theft in the first degree but convicted of attemptedidentity theft in the first degree. At sentencing, defendant orally moved under CPL article 330 toset aside the verdict as repugnant. County Court denied the motion and sentenced defendant to aprison term of 1 to 3 years. Defendant appeals, and we affirm.
Defendant contends that the verdict was not supported by legally sufficient evidence and wasagainst the weight of the evidence because the People did not establish that he assumed theidentity of another person (see Penal Law § 190.80). "A verdict is legallyinsufficient when, viewing the record in the light most favorable to the prosecution, there is novalid line of reasoning and permissible inferences from which a rational jury could have foundthe elements of the crime proved beyond a reasonable doubt" (People v Byrd, 152 AD3d 984,986 [2017] [internal quotation marks, brackets and citations omitted]; see People v Anatriello, 161 AD3d1383, 1384-1385 [2018], lv denied 31 NY3d 1144 [2018]). As to the weight of theevidence, because a contrary result would not have been unreasonable, our task is to "weighconflicting testimony, review any rational inferences that may be drawn from the evidence andevaluate the strength of such conclusions" (People v Danielson, 9 NY3d 342, 348 [2007]; see People v [*2]McCauley, 162 AD3d 1307, 1307-1308 [2018], lvdenied 32 NY3d 939 [2018]; Peoplev Norman, 154 AD3d 1185, 1187 [2017], lv denied 31 NY3d 986 [2018]).
At trial, the People adduced evidence that, on September 2, 2014, defendant went to a UPSfacility, presented himself as the victim to a UPS employee, retrieved a package and signed for itin the victim's name. The UPS employee testified that defendant returned on September 4, 2014and that he believed that defendant was the victim based upon what defendant had told him twodays earlier. On that day, defendant presented the UPS employee with a paper that had a UPSlogo on it and the tracking information for packages to be retrieved at the UPS facility.According to the UPS employee, defendant also showed him an email confirmation from theseller that had the victim's name on it. The victim testified that he did not authorize defendant topick up any items on his behalf or use his name for any purpose. The victim further testified thathe did not purchase any items from the seller in August or September 2014.
Viewing this evidence in the light most favorable to the People, we find that a valid line ofreasoning and permissible inferences exist from which a rational jury could conclude beyond areasonable doubt that defendant assumed the identity of the victim (see People v Roberts, 31 NY3d406, 417-418 [2018]; People vEckerd, 161 AD3d 1508, 1509 [2018], lv denied 31 NY3d 1116 [2018]; seegenerally People v Contes, 60 NY2d 620, 621 [1983]). Nor can we say that, upon viewingthe evidence in a neutral light, the verdict was against the weight of the evidence (seegenerally People v Bleakley, 69 NY2d 490, 495 [1987]). Although defendant testified to adifferent account of the incident, the jury was entitled to reject his version (see People v Wright, 160 AD3d1110, 1112 [2018], lv denied 31 NY3d 1154 [2018]; People v Luciano, 152 AD3d 989,993-994 [2017], lv denied 30 NY3d 1020 [2017]; People v Cooley, 149 AD3d 1268, 1269 [2017], lv denied30 NY3d 979 [2017]). Furthermore, to the extent that defendant questions the credibility of theUPS employee, we defer to the jury's assessment of credibility (see People v Hartle, 159 AD3d1149, 1153 [2018], lv denied 31 NY3d 1082 [2018]; People v Place, 152 AD3d 976,979 [2017], lv denied 30 NY3d 1063 [2017]).
Finally, contrary to defendant's assertion, the verdict acquitting him of identity theft in thefirst degree but convicting him of attempted identity theft in the first degree was not repugnantgiven that the two charges stemmed from two separate incidents (see People v St. Pierre, 141 AD3d958, 962 [2016], lv denied 28 NY3d 1031 [2016]; People v Kussius, 238AD2d 731, 732 [1997], lv denied 90 NY2d 941 [1997]). For this reason, County Courtproperly denied defendant's motion to set aside the verdict. Defendant's argument that CountyCourt erred in failing to instruct the jury to avoid irrational verdicts is unpreserved for our reviewgiven that defendant did not request such charge at trial or object to the charge as given (see People v Fauntleroy, 108 AD3d885, 887 [2013], lv denied 21 NY3d 1073 [2013]). Defendant's remainingcontentions, to the extent not specifically discussed herein, have been examined and lackmerit.
Garry, P.J., Egan Jr., Mulvey and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.