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.
R. Vance, Jr., District Attorney, New York (Philip Morrow and
Christopher P. Marinelli of counsel), for respondent.
W. Sweeny, Jr., J.P., Rolando T. Acosta, Angela M.
Mazzarelli, Sallie Manzanet-Daniels, Troy K. Webber, JJ.
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 ). 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.
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 . 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.
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 . 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
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.
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.
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
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.
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). The term
"personal identifying information" includes a
"financial services account number or code" and a
"checking account number or code" (Penal Law §
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 , 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 ). 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 ...