People v. Lloyd

• Citation: 118 A.D.3d 1117,987 N.Y.S.2d 672,2014 N.Y. Slip Op. 04263
• Parties: The PEOPLE of the State of New York, Respondent, v. Charles LLOYD, Appellant.
• Decision Date: 12 June 2014
• Court: New York Supreme Court Appellate Division

118 A.D.3d 1117
987 N.Y.S.2d 672
2014 N.Y. Slip Op. 04263

The PEOPLE of the State of New York, Respondent,
v.
Charles LLOYD, Appellant.

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

June 12, 2014.

[987 N.Y.S.2d 674]

James P. Milstein, Public Defender, Albany (Theresa M. Suozzi of counsel), for appellant.

P. David Soares, District Attorney, Albany (Vincent Stark of counsel), for respondent.

Before: PETERS, P.J., STEIN, McCARTHY and EGAN JR., JJ.

STEIN, J.

Appeal from a judgment of the County Court of Albany County (Herrick, J.), rendered December 13, 2011, upon a verdict convicting defendant of the crimes of criminal possession of a forged instrument in the second degree (two counts), criminal possession of stolen property in the fourth degree (four counts) and unlawful possession of personal identification information in the third degree (11 counts).

In June 2010, State Police received information from Allyson Gorney that she and defendant had been engaged in a scheme in which they made fraudulent checks and used stolen identification cards to cash them. That information led to the issuance and execution of a search warrant at defendant's apartment. In the closet of the master bedroom, police recovered a green suitcase containing various items used for printing checks, as well as a card skimmer device and an envelope containing, among other things, driver's licenses, nondriver identification cards, three credit/bank cards, two checks, a New York benefit card and two Social Security cards. Defendant was transported to the police station and, after Miranda warnings were administered, he made certain incriminating statements.

Defendant was thereafter charged by indictment with criminal possession of stolen property in the fourth degree (four counts), criminal possession of a forged instrument in the second degree (two counts), unlawful possession of personal identification information in the third degree (12 counts) and one count of criminal possession of a skimmer device. At the close of the People's case, the People consented

[987 N.Y.S.2d 675]

to the dismissal of one count of unlawful possession of personal identification information and the jury convicted defendant of all the remaining counts, except criminal possession of a skimmer device. Defendant was subsequently sentenced, as a second felony offender, to various concurrent prison terms, the greatest of which is 3 1/2 to 7 years. Defendant now appeals.

We affirm. Initially, we reject defendant's claim that County Court should have suppressed the statements he made to State Police Investigator Timothy Northrup because his Miranda rights were violated. At the suppression hearing, Northrup testified that defendant was taken into custody, brought to the police station and placed in an interview room. Northrup then read defendant his Miranda rights and defendant agreed to answer his questions. According to Northrup, the entire interrogation lasted no more than 25 minutes, and there is no indication in the record that defendant asked to speak with an attorney at any time. Based on this testimony, the People established that defendant's statements were voluntarily made after a valid and knowing waiver of his Miranda rights ( see People v. Kidd, 112 A.D.3d 994, 996–997, 976 N.Y.S.2d 309 [2013];People v. Mattis, 108 A.D.3d 872, 874, 969 N.Y.S.2d 581 [2013],lvs. denied22 N.Y.3d 957, 977 N.Y.S.2d 188, 999 N.E.2d 553 [2013] ).

In accordance with our prior rulings, defendant's additional argument that the statements should have been suppressed because the interview was not electronically recorded is also unavailing ( see People v. Moore, 112 A.D.3d 981, 982, 976 N.Y.S.2d 587 [2013];People v. Beckingham, 57 A.D.3d 1098, 1099–1100, 869 N.Y.S.2d 649 [2008],lv. denied13 N.Y.3d 742, 886 N.Y.S.2d 95, 914 N.E.2d 1013 [2009];see also People v. Dukes, 53 A.D.3d 1101, 1101, 859 N.Y.S.2d 878 [2008],lv. denied11 N.Y.3d 831, 868 N.Y.S.2d 606, 897 N.E.2d 1090 [2008] ). Moreover, considering the totality of the circumstances ( see People v. Aveni, 22 N.Y.3d 1114, 1117, 983 N.Y.S.2d 768, 6 N.E.3d 1124 [2014] ), we are unpersuaded that, as a result of the minimally deceptive tactics employed by Northrup, defendant's statements were not “the product of [defendant's] own choice” ( People v. Thomas, 22 N.Y.3d 629, 642, 985 N.Y.S.2d 193, 8 N.E.3d 308 [2014];see People v. Wolfe, 103 A.D.3d 1031, 1035, 962 N.Y.S.2d 403 [2013],lv. denied21 N.Y.3d 1021, 971 N.Y.S.2d 503, 994 N.E.2d 399 [2013];People v. Jaeger, 96 A.D.3d 1172, 1174, 946 N.Y.S.2d 680 [2012],lv. denied19 N.Y.3d 997, 951 N.Y.S.2d 474, 975 N.E.2d 920 [2012] ). Thus, we discern no basis to disturb the denial of defendant's motion to suppress his statements.

Upon our review of the trial evidence, we find that the jury's verdict was supported by legally sufficient evidence and was in accord with the weight of the evidence. As to the four counts of criminal possession of stolen property in the fourth degree, the People were required to prove that defendant knowingly possessed a stolen credit card, debit card or public benefit card with the intent to benefit himself or another person ( seePenal Law § 165.45 [2]; People v. Hall, 57 A.D.3d 1222, 1226, 870 N.Y.S.2d 508 [2008],lv. denied12 N.Y.3d 817, 881 N.Y.S.2d 24, 908 N.E.2d 932 [2009] ). Here, the police recovered a New York benefit card and three credit/bank cards from defendant's apartment.¹ Inasmuch as defendant was

[987 N.Y.S.2d 676]

in possession of two or more stolen credit cards, he was “presumed to know that such credit cards ... were stolen” ( Penal Law § 165.55[3]; see People v. Mitchell, 77 N.Y.2d 624, 628, 569 N.Y.S.2d 393, 571 N.E.2d 701 [1991];People v. Hall, 57 A.D.3d at 1226, 870 N.Y.S.2d 508;People v. White, 251 A.D.2d 157, 157, 673 N.Y.S.2d 905 [1998],lv. denied92 N.Y.2d 908, 680 N.Y.S.2d 72, 702 N.E.2d 857 [1998] ).

Moreover, three of the four victims testified that the cards seized from defendant's apartment belonged to them and had previously been stolen. Although the remaining victim did not testify, Gorney's testimony established that she and defendant used stolen property in connection with their scheme, and defendant admitted to Northrup that other people “in his business, his criminal activity, ... know what he does” and would bring him credit cards or driver's licenses that “were [either] stolen or he had gotten them from people.” When asked whether he believed that the cards were stolen, he answered, “Probably, yes.” Viewing this evidence in a light most favorable to the People, we find that there is a valid line of reasoning and permissible inferences to support the conclusion reached by the jury as to defendant's guilt of these four charges ( see People v. Swackhammer, 65 A.D.3d 713, 714, 883 N.Y.S.2d 651 [2009];People v. Hall, 57 A.D.3d at 1227, 870 N.Y.S.2d 508).

In order to convict defendant of criminal possession of a forged instrument in the second degree, the People were required to establish that defendant possessed a forged instrument ( seePenal Law § 170.10), “ ‘with knowledge that it is forged and with intent to defraud, deceive or injure another’ ” ( People v. Rebollo, 107 A.D.3d 1059, 1060, 966 N.Y.S.2d 602 [2013], quoting Penal Law § 170.25; see People v. Hughes, 111 A.D.3d 1170, 1171, 975 N.Y.S.2d 507 [2013] ). Defendant's knowing possession of forged instruments was established by the two checks—both from “Better Choice Home Care, Inc.” ²—that were found in his apartment, as well as Gorney's testimony that she and defendant made checks with the equipment found in the green suitcase and then cashed them using the driver's licenses that defendant had obtained. One of the checks was made payable to a victim whose driver's license was found at defendant's apartment. Thus, defendant's knowledge was readily inferrable from the surrounding circumstances ( see People v. Martin, 116 A.D.3d 1166, 1166, 983 N.Y.S.2d 360 [2014];People v. Monteiro, 93 A.D.3d 898, 899, 939 N.Y.S.2d 629 [2012],lv. denied19 N.Y.3d 964, 950 N.Y.S.2d 116, 973 N.E.2d 214 [2012] ).

With respect to the 11 counts of unlawful possession of personal identification information in the third degree, it was incumbent on the People to establish that defendant “knowingly possesse[d]” a personal identification number “of another person knowing such information [was] intended to be used in furtherance of the commission of a crime” (Penal Law § 190.81). We reject defendant's assertion that information contained on a driver's license, nondriver identification card and Social Security card are not encompassed by the statute. A “personal identification number” is defined as “any number or code which may be used alone or in conjunction with any other information to assume the identity of another person or access financial resources or credit of another

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