May 22, 2013
The People of the State of New York, respondent,
Andre Nicholas, appellant. (Ind. No. 855/10)
Lynn W. L. Fahey, New York, N.Y. (William Kastin of counsel; Jamie Michelle Marr on the brief), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano and W. Andrew Barton of counsel), for respondent.
PETER B. SKELOS, J.P., RUTH C. BALKIN, JEFFREY A. COHEN, ROBERT J. MILLER, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Queens County (McGann, J.), rendered May 18, 2011, convicting him of criminal possession of stolen property in the fourth degree (two counts), criminal possession of stolen property in the fifth degree, identity theft in the second degree, false personation, attempted tampering with physical evidence, criminal possession of a controlled substance in the seventh degree, unlawful possession of marijuana, and smoking tobacco in an enclosed area within a public place in violation of Administrative Code of City of New York §§ 17-503(a)(6) and 17-508(d), upon a jury verdict, and imposing sentence.
ORDERED that the judgment is modified, on the facts, by reducing the defendant's convictions of criminal possession of stolen property in the fourth degree under counts one and two of the indictment to criminal possession of stolen property in the fifth degree and vacating the sentences imposed thereon; as so modified, the judgment is affirmed and the matter is remitted to the Supreme Court, Queens County, for further proceedings in accordance herewith.
The defendant failed to preserve for appellate review his challenge to the legal sufficiency of the evidence with respect to counts one and two of the indictment, charging him with criminal possession of stolen property in the fourth degree with respect to a certain card issued by JP Morgan Chase Bank, N.A., as he failed, in his trial motion to dismiss the indictment, to raise the specific contentions that he now raises on appeal (see CPL 470.05 ; People v Hawkins, 11 N.Y.3d 484, 493; People v Lewis, 96 A.D.3d 878, 878; People v Williams, 94 A.D.3d 779, 780; People v Mathieu, 83 A.D.3d 735, 735). Nonetheless, the convictions on those two counts are against the weight of the evidence. In particular, the weight of the credible evidence does not support the jury's conclusion that the card introduced at trial fell within the statutory definition of a "debit card" (Penal Law § 165.45; General Business Law § 511) or a "public benefit card" that was "issued by the state or a social services district, " or entitled the holder "to obtain public assistance benefits under a local, state or federal program administered by the state" (Penal Law §§ 155.00[7-b], 165.45; cf. Penal Law 158.00[c]). Accordingly, the evidence does not support the defendant's conviction of criminal possession of stolen property in the fourth degree under counts one and two of the indictment.
The evidence did, however, support a conviction, under both counts one and two of the indictment, of the lesser-included offense of criminal possession of stolen property in the fifth degree (see Penal Law § 165.40; People v Oates, 33 A.D.3d 823). Accordingly, we reduce the defendant's convictions of criminal possession of stolen property in the fourth degree under counts one and two of the indictment to criminal possession of stolen property in the fifth degree and vacate the sentences imposed thereon (see CPL 470.15[a]; People v Ju Ju Jiang, 99 A.D.3d 724, 725; People v Oates, 33 A.D.3d at 823). Although the defendant has already served the maximum sentence that could be imposed for criminal possession of stolen property in the fifth degree (see Penal Law 70.15), we nevertheless remit the matter to the Supreme Court, Queens County, for the imposition of an authorized sentence for that offense (see People v Rumley, 102 A.D.3d 894, 895).
Despite the defendant's contentions to the contrary, viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish the element of intent to defraud and every other element of the crime of identity theft in the second degree, with respect to the count charging that crime of which the defendant was convicted. Intent to defraud as an element of identity theft may be inferred by the finder of fact based upon the defendant's acts (see Penal Law § 190.79; People v Vandermuelen, 42 A.D.3d 667, 670; People v Colon, 306 A.D.2d 213, 214; People v Washington, 299 A.D.2d 286, 286-287; People v Fernandez, 27 Misc.3d 136 [A]). Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15; People v Danielson, 9 N.Y.3d 342, 348), we are satisfied that the verdict of guilt with respect to this crime was not against the weight of the evidence (see People v Romero, 7 N.Y.3d 633).
The defendant's remaining contentions either are without merit or need not be addressed in light of our determination.
SKELOS, J.P., BALKIN, COHEN and MILLER, JJ., concur.