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People v. Destin

Supreme Court of New York, First Department

April 11, 2017

The People of the State of New York, Respondent,
v.
Blondine Destin, Defendant-Appellant.

         Defendant appeals from the judgment of the Supreme Court, New York County (Gregory Carro, J.), rendered January 21, 2014, convicting her, after a jury trial, of criminal possession of a forged instrument in the second degree, identity theft in the first degree and four counts of attempted grand larceny in the third degree, and imposing sentence.

          Seymour W. James, Jr., The Legal Aid Society, New York (Shane Tela of counsel), for appellant.

          Cyrus R. Vance, Jr., District Attorney, New York (Philip Morrow and Christopher P. Marinelli of counsel), for respondent.

          John W. Sweeny, Jr., J.P., Rolando T. Acosta, Angela M. Mazzarelli, Sallie Manzanet-Daniels, Troy K. Webber, JJ.

          OPINION

          ACOSTA, J.

         This appeal calls for us to revisit the assumption-of-identity element of the crime of identity theft in the context of a defendant's attempt to cash a counterfeit check payable to her, by submitting personal identification showing her name and by signing her name on the back of the check when asked to endorse it. As this Court has held, the assumption of another's identity "is a separate and essential element of the offense of identity theft which must be proven beyond a reasonable doubt" (People v Barden, 117 A.D.3d 216');">117 A.D.3d 216, 227 [1st Dept 2014], revd on other grounds 27 N.Y.3d 550');">27 N.Y.3d 550');">27 N.Y.3d 550');">27 N.Y.3d 550 [2016]). The People argue that, by presenting for payment a check that showed the apparent issuing bank's routing number and account number, i.e., the bank's "personal identifying information" (see Penal Law § 190.80), the defendant implicitly assumed the identity of the bank (see Barden, 117 A.D.3d at 220). Assuming without deciding that in this context a bank is a "person" whose identity could be stolen (see Penal Law § 190.77), we nevertheless hold that the evidence in this case was legally insufficient to support the verdict of guilty of identity theft in the first degree.

         At approximately 4:30 p.m. on March 30, 2012, defendant entered a TD Bank branch in Manhattan and attempted to cash a check, which was payable to "Blondine Destin" and appeared to have been issued by H & R Block Bank [1]. Because the value of the check was over $1, 000 (it was $4, 521), the bank teller could not cash the check and was required to verify whether defendant had a TD Bank account. The teller gave the check to a supervisor and asked defendant to wait.

         The TD Bank supervisor noticed several discrepancies when he compared defendant's check to images of previously cashed H & R Block tax refund checks that were stored in the bank's computer system. For example, defendant's check was missing an H & R Block logo in the middle of the check and a telephone number that, ordinarily, would connect the caller to an automated system that would provide a four-digit confirmation after the caller entered the check number and amount [2]. The supervisor alerted his regional operations officer and sent an email to notify the remainder of the region that "fraudulent checks were being passed around." In the email, the supervisor included a scanned copy of defendant's check and a sample image of a legitimate check.

         Defendant, apparently having grown tired of waiting, returned to the teller's station to find out what was happening. Somehow, she was able to recover the check and walk out of the branch. Within the next hour, defendant attempted to cash a check at two other TD Bank branches, but the tellers noticed that defendant's check resembled the fraudulent one in the email alert. At both locations, defendant left after being told that the bank could not cash the check.

         Around 6:20 p.m. that same day, defendant entered a fourth TD Bank location and tried again to cash a tax refund check that was purportedly issued by H & R Block Bank. The bank teller, who had read the email alert regarding the earlier attempts to cash fraudulent checks, noticed that defendant's check "looked a little funny." The teller took defendant's check and identification to determine the check's authenticity. She then called the regional operations officer to alert him that defendant was trying to cash a counterfeit check, and asked a uniformed police officer who was working at the bank to call other officers and have defendant arrested. To stall defendant until the police arrived, the teller had her endorse the back of the check, suggesting that it could be cashed. When a police car pulled up in front of the bank, defendant "tried to rush out, " leaving behind the check and her identification.

         The bank's police officer stopped defendant in the vestibule. At about 6:50 p.m., two other police officers entered the bank. A bank employee gave the officers what appeared to be an H & R Block Bank tax refund check in the amount of $4, 521, payable to Blondine Destin. The officers arrested defendant after one of them contacted an H & R Block representative and determined that the check was fraudulent. The check number was the only difference between the check that defendant presented at the first bank branch, which the supervisor scanned and emailed, and the one that was recovered during defendant's arrest at the fourth location.

         After a jury trial, defendant was convicted of identity theft in the first degree, criminal possession of a forged instrument in the second degree, and four counts of attempted grand larceny in the third degree, and was sentenced as a second felony offender to concurrent prison terms of two to four years on each count. Defendant has served her sentence and now appeals, arguing that the evidence was legally insufficient to support her identity theft conviction and that the verdict on that count was against the weight of the evidence. In addition, she contends that the trial court's evidentiary rulings denied her a fair trial.

         A person commits identity theft in the first degree "when he or she knowingly and with intent to defraud assumes the identity of another person by [inter alia]... using personal identifying information of that other person, and thereby... commits or attempts to commit a class D felony or higher level crime" (Penal Law § 190.80[3]). The term "personal identifying information" includes a "financial services account number or code" and a "checking account number or code" (Penal Law § 190.77[1]).

         This Court has held that evidence is legally sufficient to support an identity theft conviction only if the People prove that the defendant (1) engaged in one of the enumerated methods by which one can assume the identity of another (e.g., using the victim's personal identifying information), and (2) consequently assumed the victim's identity (People v Barden, 117 A.D.3d 216');">117 A.D.3d 216 [1st Dept 2014], revd on other grounds27 N.Y.3d 550');">27 N.Y.3d 550');">27 N.Y.3d 550');">27 N.Y.3d 550 [2016], supra; see also People v Roberts, 138 A.D.3d 461');">138 A.D.3d 461 [1st Dept 2016], lv granted28 N.Y.3d 1075');">28 N.Y.3d 1075 [2016]). In Barden, the defendant used his business associate's credit card to charge hotel expenses by falsely indicating that he had the cardholder's continued authorization to charge the card. This Court found that the statute was ambiguous, and interpreted it in accordance with the rule of lenity, determining that assumption of a victim's identity is a discrete element of the crime of identity theft (id. at 226-227). The Court noted that although a defendant's use of another person's credit card will ordinarily result in "an implicit assumption of identity, ... [t]he implication falls away... when the person accepting the credit card knows that the ...


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