People v. Barden

• Decision Date: 10 April 2014
• Citation: People v. Barden, 2014 NY Slip Op 2527, 117 A.D.3d 216, 983 N.Y.S.2d 534 (N.Y. App. Div. 2014)
• Parties: The PEOPLE of the State of New York, Respondent, v. Scott BARDEN, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

117 A.D.3d 216

983 N.Y.S.2d 534

2014 N.Y. Slip Op. 02527

The PEOPLE of the State of New York, Respondent,

v.Scott BARDEN, Defendant–Appellant.

Supreme Court, Appellate Division, First Department, New York.

April 10, 2014.

Office of the Appellate Defender, New York (Richard M. Greenberg of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (David E.A. Crowley and Alice Wiseman of counsel), for respondent.

JOHN W. SWEENY, JR., J.P., ROLANDO T. ACOSTA, DAVID B. SAXE, KARLA MOSKOWITZ, DARCEL D. CLARK, JJ.

ACOSTA, J.

This appeal raises questions about the elements of identity theft and whether intangible property can be criminally possessed , where a defendant used his associate's credit card number to pay for hotel expenses without authorization.Specifically, we are called upon to determine, first, whether assumption of identity is a discrete element of identity theft or whether it occurs automatically when a person uses another's personal identifying information, and second, whether criminal possession of stolen property includes intangible property, namely a credit card number.Regarding the first issue, we find that to secure a conviction for identity theft the People must prove not only that a defendant used another's personal identifying information, but that he or she consequently assumed the identity of that person.Because the hotel was aware of defendant's identity, he did not assume the identity of his associate by charging the credit card and, accordingly, the evidence was legally insufficient to support his conviction of identity theft.As to the second issue, we have determined that the legislature intended intangibles, including credit card numbers, to fall within the ambit of criminal possession of stolen property.Defendant constructively possessed his associate's stolen credit card number, and thus he was properly convicted of the latter offense.

I.Background

In or around March 2009, defendant met businessman Anthony Catalfamo and began to assist him in a business venture by seeking potential investors for a development project in the Bahamas.On at least three occasions between that time and February 2010, Catalfamo paid for defendant to stay in hotels, pursuant to third-party billing agreements, in order to facilitate defendant's work on the project.Those agreements required Catalfamo to supply his credit card information to the hotels, and they established duration and expense limits on the hotels' permission to charge the account.

In February 2010, Catalfamo and defendant agreed that Catalfamo would cover the expenses of defendant's stay at the Thompson LES Hotel (the hotel) in Manhattan, anticipating that defendant would soon strike a deal with prospective investors.They further agreed that defendant would stay at the hotel for approximately five days and that his expenses would be limited to $2,300.Catalfamo entered into a third-party billing agreement with the hotel, intending that defendant would stay for the nights of February 12 through February 16.

When defendant checked into the hotel on February 13, 2010, at around 2:00 a.m., he told a front-desk staff member, Vanessa Vega, that his company was paying for his stay and that he did not want the charges to exceed $2,300.Vega prepared the third-party billing agreement and wrote on it the words “Total authorized charges not to exceed $2,300.”After defendant reviewed and approved the form, Vega scanned and emailed it to Catalfamo.

Upon receipt of the form, Catalfamo called the hotel and spoke with an assistant front-desk manager, Craig Weber, to ensure that the hotel would abide by the $2,300 limit.Catalfamo then completed the form, providing his American Express card number, the card's expiration date, and his signature.On the agreement, Catalfamo wrote the phrases “This Transaction Agreement is for one swipe one charge ONLY!” and “No additional payment will be authorized with this card.”Catalfamo returned the form to the hotel, and Weber wrote on the agreement “$2,300 authorized on 2/12/10 for account of Bane Barden [another name by which defendant was known].”

When the hotel processed the third-party billing agreement, Catalfamo's credit card information—but not his name—became “attached to [defendant's] profile” on the hotel's computer system.However, due to an error on the part of the hotel, the third-party billing agreement did not attach to defendant's computer profile.Whenever hotel employees subsequently accessed defendant's profile, they would see that he previously used an American Express card ending in four specific digits, but they were unable to see Catalfamo's name, the billing agreement, or the $2,300 limit.At no point did Catalfamo authorize the hotel to charge his credit card account beyond the terms of this initial agreement, nor did he provide his credit card information directly to defendant.

Defendant stayed at the hotel for five nights and checked out on February 17th, incurring charges slightly in excess of the specified limit, and the hotel charged the full amount to Catalfamo's American Express card.The extent of excess charges to Catalfamo's credit card did not end there, however.Because of another mistake on the hotel's part, Catalfamo's credit card information was not deleted from defendant's computer profile upon his departure.The result was a slew of substantial unauthorized charges.

A reservation at the hotel was made in defendant's name for the night of February 28, 2010.On March 1, 2010, when defendant had not checked in, the hotel charged $205.41 to Catalfamo's credit card, because that was the payment method that was still linked to defendant's computer profile from his earlier stay.The evidence at trial did not explain how that reservation was made.

By mid-March 2010, defendant's business relationship with Catalfamo soured.Catalfamo indicated that he no longer wished to fund defendant's expenses because the Bahamas project had not made sufficient progress.Nonetheless, defendant arrived at the hotel on March 24, 2010, and, according to Vega's trial testimony, told Vega to charge the American Express card on file.Vega routinely dealt with third-party agreements, so she did not recall the expired agreement with Catalfamo.She simply used Catalfamo's card, the only American Express card that was linked to defendant's hotel computer profile—although Catalfamo's name was not visible on the profile—and obtained approval for the charges from American Express.

Defendant checked out of the hotel on March 25 and settled the bill of nearly $2,000 with the same credit card.On checking out, defendant decided to extend his stay and immediately checked back in until March 27, incurring a bill of nearly $1,000, which the hotel also charged to Catalfamo's card.Defendant returned to the hotel on March 30.Again, Vega checked him in and defendant said she could bill the card “on file.”This time, defendant stayed at the hotel for nearly six weeks, until his arrest.During this stay, Vega and Weber saw him “[a]t least every other day.”Catalfamo's card remained the only account that was attached to defendant's computer profile.Defendant consistently directed the hotel staff to bill the American Express card “on file” or responded affirmatively when they asked whether they should bill the same card.

At some point during defendant's stay, Weber recalled the expired third-party billing agreement and confronted defendant about it.According to Weber's trial testimony to which neither party objected, defendant responded that he was authorized to use Catalfamo's American Express card for his post-February expenses.That statement, however, was untrue.

In April 2010, Catalfamo discovered the unauthorized charges, totaling more than $10,000, and reported them to American Express.On or about April 12, the hotel discovered that American Express had declined the post-February charges.The hotel was notified of a “chargeback,” meaning that it did not receive payment for the unauthorized charges.

At that point, the hotel attempted unsuccessfully to reach defendant by phone in order to discuss the billing issues.Catherine Angulo, the director of the hotel's front office, encountered defendant at the front desk and asked for an alternate method of payment.She mentioned that the hotel had a “Visa card on file” and, without providing details, asked if defendant wanted her to charge that card.Defendant answered in the affirmative, and that was the extent of their conversation.That Visa card, however, belonged to Mark Barden, a person who had no connection to defendant.Nevertheless, the hotel continued to charge defendant's expenses to Mark Barden's Visa card from April 12 to May 13, 2010.¹Visa declined some of the charges on May 13, at which point the hotel became more aggressive in attempting to obtain payment from defendant.Hotel staff members called his room several times and attempted to confront him when he passed through the lobby, but defendant was consistently dismissive, claiming he was busy or that his accountant would handle it.At some point, defendant requested a new third-party billing agreement, and Angulo obliged.

On May 13, 2010, the hotel received a completed agreement from Joseph Rizzuti, Catalfamo's business associate who had initially introduced him to defendant.The authorization was declined, however, when the hotel attempted to charge the outstanding balance to Rizzuti's card on the morning of May 14.That same day, the hotel received notice from Visa stating that the company was declining all prior charges made to Mark Barden's account between April and May.Consequently, after the “chargebacks” from the credit cards of Catalfamo and Mark Barden, the hotel had not received payment for approximately $50,000 worth of charges that defendant had incurred between March and May.Several hours later, on May 14, Angulo called the police, and defendan...