Cyrus R. Vance, District Attorney, by A.D.A. Sara Zenreich, Esq., New York, for the People.
Gonzalez and Oberlander, LLC, by Bert M. Oberlander, Esq., New York, for the Defendant.
JUAN M. MERCHAN, J.
Background and Procedural History
Defendant was indicted on January 8, 2013, for the crimes of Identity Theft in the First Degree pursuant to Penal Law (hereinafter " PL" ) § 190.80(2) (two counts); Grand Larceny in the Third Degree [969 N.Y.S.2d 858] pursuant PL § 155.35(1); and Grand Larceny in the Fourth Degree pursuant to PL § 155.30(1).
On May 21, 2013, this Court commenced a jury trial. At the conclusion of the People's case, Defendant moved for a trial order of dismissal pursuant to Criminal Procedure Law (hereinafter " CPL" ) § 290.10 as to Counts 1 and 2 of the indictment, Identity Theft in the First Degree. Defendant argued that neither the victims nor any third party had suffered financial loss as required by the statute. Specifically, Defendant contended that the victims did not incur financial loss because they were ultimately reimbursed by the banks. Further, Defendant argued that the record is devoid of any testimony that the banks or any other third party suffered any financial loss. This Court reserved decision.
On May 29, 2013, the jury returned a verdict finding the Defendant guilty on all counts in the indictment.
Evidence Adduced at Trial
In 2011, the Defendant, Ana Rosario, was employed as a home aide for Martin Berkowitz, then 87 years old and residing in Manhattan, and one of the complainants in this case. In or around September of 2011, Mildred David, Mr. Berkowitz's girlfriend and the second complainant herein, noticed that her checking account had been inexplicably depleted of all funds. Ms. David investigated the matter and learned that four unauthorized payments totaling $2,589.94 had been made from her checking account to an unknown Capital One Credit Card. (See People's Exhibit 2 and 9). A review of Mr. Berkowitz's Chase bank account revealed that multiple, unauthorized charges totaling over $5,000 had been made from his bank account as well, including the purchase of airline tickets to the Dominican Republic and payments to unknown Citibank and Macy's credit card accounts. (See People's Exhibits 1 and 1A).
A police investigation revealed that from on or about July 2011, to on or about September 2011, the Defendant, Ana Rosario, had used Mr. Berkowitz's and Ms. David's bank account numbers and personal identifying information to make both, payments to her own credit cards and unauthorized purchases for her and her family. (See People's Exhibits 3, 4, 5, 6a, 6b and 6c). When the Defendant was interviewed by the police, she admitted to using Mr. Berkowitz's Chase account to purchase airline tickets to the Domican Republic without his permission. Defendant was subsequently arrested on April 13, 2012. Evidence was introduced at trial which established that Mr. Berkowitz and Ms. David were eventually reimbursed by their respective banks.
On May 28, 2013, during its deliberations, the jury sent the Court a note requesting " clarification of the definition of financial loss in the context of Identity Theft." (Court Exhibit No. 2.) The attorneys first read the note, and then the Court read it into the record. Because the term " financial loss" is not specifically defined in the Penal Law or the pattern jury charges in the context of Identity Theft under PL § 190.80(2), the Court afforded counsel an opportunity to propose a clarifying response. Defense counsel proposed that the Court instruct the jury that " financial loss would be that the victims suffered a financial loss as a result of ... element one of the four elements." (Tr. at 15, lines 8-11).
Following extensive discussions amongst the parties and the Court, which continued the following day, on May 29, 2013, this Court instructed the jury, over Defendant's objection, as follows: " Loss is [969 N.Y.S.2d 859] not the ultimate harm suffered by the victim, but is rather the value of what was taken. Loss includes the value of all property taken, even though all or part of it was returned." (Tr. at 17, lines 13-16). Such definition was drawn by the Court, in part from U.S. v. Arjoon, 964 F.2d 167 [2nd Cir.1992], which cited Application Note 2 to Section 2B1.1 of the Federal Sentencing Guidelines.
By Notice of Motion dated June 13, 2013, Defendant moved for an order to set aside the jury verdict pursuant to CPL § 330.30(1) on the ground that the Court's response to the jury note was improper. Specifically, Defendant contends that the court erred in providing to the jury a definition of " financial loss" which is not contained in the identity theft statute. Defendant argues that appellate courts have cautioned trial courts against reliance upon definitions contained in other sections of the Penal Law or found in other state or federal statutes absent legislative authority to do so.
The People argue in opposition to Defendant's motion that the Court properly instructed the jury on the definition of " financial loss," as the term is not specifically defined in article 190 of the Penal Law or anywhere else in the Penal Law. The People further assert that the definition given by the Court is in line with the legislative intent of the identity theft statute. Specifically, the People posit that " the Legislature recognized that complaining witnesses may be injured by identity theft even when they have been reimbursed by a bank. Additionally, the Legislature recognized that banks and other financial institutions may also be victims of identity theft crimes, in that ...