People v. Badji

• Decision Date: 11 February 2021
• Docket Number: No. 7,7
• Citation: 36 N.Y.3d 393,165 N.E.3d 1068,142 N.Y.S.3d 128
• Parties: The PEOPLE of the State of New York, Respondent, v. Frederic BADJI, Appellant.
• Court: New York Court of Appeals Court of Appeals

36 N.Y.3d 393

165 N.E.3d 1068

142 N.Y.S.3d 128

The PEOPLE of the State of New York, Respondent,

v.Frederic BADJI, Appellant.

No. 7

Court of Appeals of New York.

February 11, 2021

OPINION OF THE COURT

Chief Judge DiFIORE.

The primary question presented by this appeal is whether the definition of credit card for purposes of Penal Law § 155.00(7) includes the credit card account number, such that the People need not prove that a defendant physically possessed the tangible credit card in order to support a conviction of grand larceny based upon credit card theft. Here, defendant's conviction of grand larceny in the fourth degree was based on defendant's theft of the victim's credit card account number to purchase goods, although there was no evidence that defendant possessed the physical card itself. We conclude that the definition of credit card in General Business Law § 511(1), as supplemented by General Business Law § 511–a, is the controlling definition as designated by Penal Law § 155.00(7) and, as a result, the evidence is legally sufficient to support defendant's conviction of grand larceny for stealing an intangible credit card account number.

I.

In 2015, defendant was hired as a temporary assistant to the victim, a managing director at a nonprofit organization. Defendant's administrative responsibilities included making travel arrangements and completing expense reports. In that capacity, he had access to the victim's corporate credit card information, Uber account information and the victim's physical workspace. Over a four-day period in April 2015, defendant, without authorization, used the victim's personal and corporate credit card accounts to make several purchases, some of which were captured on surveillance camera. The victim discovered the theft and alerted authorities. Defendant was charged by indictment with four counts of grand larceny in the fourth degree, attempted grand larceny in the fourth degree and two counts of criminal possession of stolen property in the fourth degree.

Relevant to our determination here, defendant used the victim's personal credit card to make several purchases.¹ Defendant swiped the credit card at the point of sale for each purchase. At trial, the surveillance footage of one of the transactions was admitted into evidence and the victim was permitted to testify to her opinion that defendant was the person depicted in the video making the purchase. Limiting instructions were given to the jury, reminding them that they bore the ultimate responsibility of determining whether defendant was the person depicted and that they could accept or reject the victim's testimony on that issue.

Defendant also used the victim's corporate credit card account number to purchase a two-year cellular service agreement, an iPhone and other equipment at a Verizon store. Defendant signed the receipt in his own name. Still photographs taken from surveillance footage of this transaction were admitted into evidence. The victim was again permitted to testify that she recognized defendant as the person depicted making the purchase, subject to the same limiting instruction to the jury. The same corporate account number was also used to pay for an unauthorized Uber ride. At trial, there was no proof that defendant possessed the physical credit card for either of these transactions.

The victim testified that, immediately after receiving notification that an Uber ride had been ordered on her corporate account without her knowledge, she confronted defendant, the only person who had access to her Uber account information. Defendant provided a "flurry" of inconsistent responses when asked about the transaction and even chastised her for leaving her wallet open on her desk. The victim further testified that she texted a photograph of defendant to the Uber driver who provided the unauthorized ride, in an attempt to ascertain whether the driver could identify defendant as the passenger. She also testified that, based on the driver's response she concluded that defendant was "probably" the passenger. However, the Uber driver ultimately testified that, although he recalled someone texting him a photo relating to the misuse of their account, he had no reaction to viewing the photo at the time.

The jury convicted defendant of three counts of grand larceny in the fourth degree, attempted grand larceny in the fourth degree and criminal possession of stolen property in the fourth degree.

The Appellate Division unanimously affirmed, specifically rejecting defendant's challenge to the legal sufficiency of his grand larceny conviction involving the corporate credit card account number, despite the absence of proof that he was in physical possession of the corporate credit card (171 AD3d 499 [1st Dept 2019]). The Court also rejected defendant's evidentiary challenges as either unpreserved or without merit. A Judge of this Court granted defendant leave to appeal (33 NY3d 1066 [2019]) and we now affirm.

II.

"A person is guilty of grand larceny in the fourth degree when [such person] steals property and when ... [t]he property consists of a credit card or debit card" ( Penal Law § 155.30[4] ). For purposes of Title J of the Penal Law, offenses involving theft, a " ‘credit card’ means any instrument or article defined as a credit card in" General Business Law § 511 ( Penal Law § 155.00[7] ). Section 511, in turn, provides that "[i]n this article,"—i.e., article 29–A of the General Business Law—

‘‘unless the context or subject matter otherwise requires, ...

‘‘ ‘[c]redit card’ means and includes any credit card, credit plate, charge plate, courtesy card, or other identification card or device issued by a person to another person which may be used to obtain a cash advance or a loan or credit or to purchase or lease property or services on the credit of the issuer or of the holder" ( General Business Law § 511[1] ).

In 2002, the legislature enacted an "Additional definition," which, "[f]or purposes of" article 29–A, expanded the definition of credit card to include "any number assigned to a credit card" ( General Business Law § 511–a ).

The language of the additional definition of a credit card in section 511–a, incorporating account numbers, is free from ambiguity. Defendant argues, however, that the prefatory language limiting the application of the expanded definition in section 511–a to article 29–A of the General Business Law means that the expanded definition of credit card does not apply to the Penal Law, despite the Penal Law's long-standing direction to the General Business Law's definition of credit card (see Penal Law § 155.00[7] ). He argues that the legislative choice to enact a separate "additional" definitional statute, instead of amending the definition of credit card in section 511, demonstrates an intent to exclude intangible credit card information from any criminal offenses relating to theft.²

"In statutory interpretation cases, the Court's primary consideration is to ascertain and give effect to the intention of the [l]egislature. The statutory text is the clearest indication of legislative intent and courts should construe unambiguous language to give effect to its plain meaning" (Matter of Mestecky v. City of New York, 30 N.Y.3d 239, 243, 66 N.Y.S.3d 207, 88 N.E.3d 365 [2017] [citations and internal quotation marks omitted]). At the outset, the language of the relevant statutes unambiguously provides that a credit card number is incorporated within the section 511 definition of "credit card" for purposes of article 29–A of the General Business Law. There is no dispute that the only definition of credit card applicable to grand larceny is, by legislative dictate of Penal Law § 155.00(7), the one contained in section 511. The inclusion of a credit card number in the definition of credit card under section 511–a necessarily applies to the definition in section 511, which is likewise contained in article 29–A of the General Business Law (see People v. Barden, 117 A.D.3d 216, 234, 983 N.Y.S.2d 534 [1st Dept. 2014], revd on other grounds 27 N.Y.3d 550, 36 N.Y.S.3d 80, 55 N.E.3d 1053 [2016] ). This expanded definition of credit card, in turn, necessarily applies to the definition of credit card used in the Penal Law. The term "credit card" in section 511 should be interpreted to have a consistent meaning, rather than one meaning for purposes of article 29–A and another meaning for purposes of the Penal Law, which is entirely dependent on article 29–A for the definitional term (see McKinney's Cons Laws of NY, Book 1, Statutes § 98(a), Comment ["Inconsistency in the same statute is thought to be contrary to the intent of the lawmakers, and hence it is to be avoided"]). The most reasonable reading of the plain language of the statutes is that section 511–a supplements the definition of section 511 for all provisions to which article 29–A is applicable, including the Penal Law.

"The primary consideration of courts in interpreting a statute is to ascertain and give effect to the intention of the [l]egislature" and, although the strongest indication of the statute's meaning is in its plain language, "the legislative history of an enactment may also be relevant and is not to be ignored even if words be clear" ( Riley v. County of Broome, 95 N.Y.2d 455, 463, 719 N.Y.S.2d 623, 742 N.E.2d 98 [2000] [citations and internal quotation marks omitted]). Here, a review of the legislative history buttresses the conclusion that is evident from the statutes' plain language. The stated purpose of the 2002 legislation was to enact laws to prohibit and penalize identity theft (L 2002, ch 619). In addition to creating the expanded definition of credit card, the amendments created the new criminal offenses of identity theft and possession of personal identification information ( Penal Law §§ 190.77 – 190.84 ), expanded the geographical jurisdiction for the prosecution of those crimes, established restitution remedies for card holders as...