People v. Box

• Decision Date: 23 December 2016
• Parties: The PEOPLE of the State of New York, Respondent, v. Brandon W. BOX, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

145 A.D.3d 1510
44 N.Y.S.3d 645
2016 N.Y. Slip Op. 08664

The PEOPLE of the State of New York, Respondent,
v.
Brandon W. BOX, Defendant–Appellant.

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

Dec. 23, 2016.

44 N.Y.S.3d 646

The Abbatoy Law Firm, PLLC, Rochester (David M. Abbatoy, Jr., of Counsel), for Defendant–Appellant.

Brandon W. Box, Defendant–Appellant Pro Se.

Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of Counsel), for Respondent.

PRESENT: WHALEN, P.J., CENTRA, LINDLEY, NEMOYER, AND TROUTMAN, JJ.

MEMORANDUM:

145 A.D.3d 1511

Defendant appeals from a judgment convicting him, following a jury trial, of identity theft in the first degree (Penal Law § 190.80[1] ) and falsifying business records in the first degree (§ 175.10 ), based on allegations that he applied for a credit card in his grandfather's name and then either he or his accomplice used that credit card to make over $2,000 in cash withdrawals or gift card purchases at two different Wal–Mart stores over the course of one week. To the extent that defendant contends that the evidence is legally insufficient to establish that the multiple uses of the credit card were part of a single, intentional crime as opposed to separate and distinct lesser crimes, we conclude that defendant failed to preserve that contention for our review by a timely motion to dismiss directed at that specific deficiency in the proof (see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 ). Were we to reach the merits of that contention, we would conclude that there is sufficient evidence that the repeated use of the credit card "was governed by a single intent and a general illegal design" (People v. Cox, 286 N.Y. 137, 143, 36 N.E.2d 84, rearg. denied 286 N.Y. 706, 37 N.E.2d 146 ).

In his pro se supplemental brief, defendant contends that the evidence is legally insufficient to establish that he assumed his grandfather's identity. That contention is also not preserved for our review (see Gray, 86 N.Y.2d at 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 ) and, in any event, we conclude that it lacks merit (see People v. Yuson, 133 A.D.3d 1221, 1222, 20 N.Y.S.3d 263, lv. denied 27 N.Y.3d 1157, 39 N.Y.S.3d 391, 62 N.E.3d 131 ).

Contrary to defendant's contention, viewing the evidence in light of the elements of the crimes as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we conclude that the verdict is not against the weight of the evidence with respect to defendant's intent to defraud, an element of both offenses (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Although the grandfather did not testify, the evidence at trial established that defendant lacked the grandfather's

145 A.D.3d 1512

permission to apply for and use the credit card, thereby establishing that defendant acted with an intent to defraud. Defendant filed the application

44 N.Y.S.3d 647

in the predawn hours of January 18, 2013 and, although he testified that he filed the application in the presence of and with the permission of his grandfather, defendant's sister, with whom the grandfather lived, testified that defendant did not visit his grandfather during the entire month of January 2013. Moreover, the accomplice testified that defendant filed the application online at his own residence without the grandfather's knowledge or consent. Defendant and the accomplice admitted at trial that they made over $1,000 in cash withdrawals and that they used that money to buy crack cocaine. From documentary exhibits and the accomplice's testimony, the People established that defendant and the accomplice purchased over $1,000 in gift cards, which they traded for crack cocaine. In a recorded telephone call with his mother, defendant attempted to ensure that the grandfather would not testify at trial, which would be illogical if, in fact, defendant had the grandfather's permission to apply for and use the credit card.

Defendant failed to preserve for our review his contention that Supreme Court improperly limited defense counsel's summation (see People v. Kimmy, 137 A.D.3d 1723, 1723–1724, 29 N.Y.S.3d 715, lv. denied 27 N.Y.3d 1134, 39 N.Y.S.3d 116, 61 N.E.3d 515 ; People v. Gong, 30 A.D.3d 336, 336, 816 N.Y.S.2d 684, lv. denied 7 N.Y.3d 812, 822 N.Y.S.2d 487, 855 N.E.2d 803 ), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ). Moreover, although defendant contends that the prosecutor improperly shifted the burden of proof during summation, we conclude that reversal is not warranted because the prosecutor's "single improper comment was not so egregious that defendant was thereby deprived of a fair trial" (People v. Willson, 272 A.D.2d 959, 960, 708 N.Y.S.2d 668, lv. denied 95 N.Y.2d 873, 715 N.Y.S.2d 228, 738 N.E.2d 376 ). We note that the court "sustained defendant's objection to the improper comment and instructed the jury to disregard it, and the jury is presumed to have followed the court's instructions" (People v. Smalls, 100 A.D.3d 1428, 1430, 953 N.Y.S.2d 791, lv. denied 21 N.Y.3d 1010, 971 N.Y.S.2d 261, 993 N.E.2d 1285 ).

Defendant contends that the indictment was duplicitous and multiplicitous and, further, that the testimony at trial rendered the indictment duplicitous. The Court of Appeals has unequivocally held that "issues of non-facial duplicity, like those of facial duplicity, must be preserved for appellate review," and defendant failed to do so by either a motion to dismiss the indictment or an objection at trial (

145 A.D.3d 1513

People v. Allen, 24 N.Y.3d 441, 449–450, 999 N.Y.S.2d 350, 24 N.E.3d 586 ; see People v. Rivera, 133 A.D.3d 1255, 1256, 18 N.Y.S.3d 813, lv. denied 27 N.Y.3d 1154, 39 N.Y.S.3d 388, 62 N.E.3d 128 ). Defendant likewise failed to preserve for our review his multiplicity contention "inasmuch as [he] failed to challenge the indictment on that ground" (People v. Fulton, 133 A.D.3d 1194, 1194, 19 N.Y.S.3d 152, lv. denied 26 N.Y.3d 1109, 26 N.Y.S.3d 767, 47 N.E.3d 97, reconsideration denied 27 N.Y.3d 997, 38 N.Y.S.3d 107, 59 N.E.3d 1219 ; see People v. Morey, 224 A.D.2d 730, 731, 637 N.Y.S.2d 500, lv. denied 87 N.Y.2d 1022, 644 N.Y.S.2d 156, 666 N.E.2d 1070 ). We decline to exercise our power to review those contentions as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).

With respect to count two, charging defendant with falsifying business records in the first degree (Penal Law § 175.10 ), defendant contends that this count impermissibly "double counts" defendant's single criminal intent in violation of

44 N.Y.S.3d 648

People v. Cahill , 2 N.Y.3d 14, 777 N.Y.S.2d 332, 809 N.E.2d 561. We reject that contention. Section 175.10 provides that a person is guilty of falsifying business records in the first degree if he or she commits the crime of falsifying business records in the second degree and "his [or her] intent to defraud includes an intent to commit another crime or to aid or conceal the commission thereof." Defendant thus contends that his intent to defraud in using the credit card was "not meaningfully independent of his intent to defraud through commission (or concealment) of the identity theft associated with gaining the credit card."

Defendant's reliance on Cahill in support of that contention is misplaced. In Cahill, the defendant was charged with murder in the first degree under Penal Law § 125.27(1)(a)(vii), based on the aggravating factor that the victim was killed during the commission of a burglary. In that case, the crime the defendant intended to commit for purposes of the underlying burglary was the murder of the victim, and the Court thus held that, "[i]f the burglar intends only murder, that intent cannot be used both to define the burglary and at the same time bootstrap the second degree (intentional) murder to a capital crime" (id. at 65, 777 N.Y.S.2d 332, 809 N.E.2d 561 ). In short, the intent to commit murder could not serve as both the basis for the crime (intentional murder) as well as the basis for the aggravating factor (burglary committed with the intent to commit the crime of murder) for the same murder charge. To do so would "double count" the same criminal intent in a single charge. Here, however, defendant's intent to commit a crime, an element of falsifying business records in the first degree, was the intent to commit the separate and distinct crime of identity theft. We thus conclude that, even if defendant's intent to...