People v. Roberts

• Decision Date: 03 May 2018
• Docket Number: No. 43,No. 42,42
• Citation: 31 N.Y.3d 406,104 N.E.3d 701,79 N.Y.S.3d 597
• Parties: The PEOPLE of the State of New York, Appellant, v. Kerri ROBERTS, Respondent. The People of the State of New York, Respondent, v. Terrie J. Rush, Appellant.
• Court: New York Court of Appeals Court of Appeals

31 N.Y.3d 406

104 N.E.3d 701

79 N.Y.S.3d 597

The PEOPLE of the State of New York, Appellant,

v.Kerri ROBERTS, Respondent.

The People of the State of New York, Respondent,

v.Terrie J. Rush, Appellant.

No. 42

No. 43

Court of Appeals of New York.

May 3, 2018

Cyrus R. Vance, Jr., District Attorney, New York City (Philip Morrow and Alice Wiseman of counsel), for appellant in the first above-entitled action.

Robert S. Dean, Center for Appellate Litigation, New York City (John Vang of counsel), for respondent in the first above-entitled action.

Phillips Lytle LLP, Buffalo (Deena K. Mueller-Funke of counsel), and Timothy P. Donaher, Public Defender, Rochester, for appellant in the second above-entitled action.

Sandra Doorley, District Attorney, Rochester (Daniel Gross of counsel), for respondent in the second above-entitled action.

OPINION OF THE COURT

RIVERA, J.

The common issue presented in these appeals is whether the People may establish that a defendant "assumes the identity of another," within the meaning of New York's identity theft statute, by proof that the defendant used another's personal identifying information, such as that person's name, bank account, or credit card number. Defendants Kerri Roberts and Terrie J. Rush argue that the use of personal identifying information does not automatically establish that a defendant assumes another's identity, and thus the People bear the burden of establishing independently both a defendant's use of protected information and assumptive conduct. The Appellate Division departments have split on the proper interpretation of the disputed statutory text. The First Department adopted the construction advanced here by defendants, leading to its conclusion that Roberts' conviction of identity theft was unsupported by sufficient evidence. By contrast, the Fourth Department concluded that the statute applies when a defendant, like Rush, uses the personal identifying information of another, upholding Rush's conviction. We now reject defendants' decontextualized interpretation of the statutory language and conclude that the law defines the use of personal identifying information of another as one of the express means by which a defendant assumes that person's identity.

There is also no merit to defendant Rush's additional interpretative claim that even if she assumed another person's identity, she did not "thereby" commit the requisite underlying felony of criminal possession of a forged instrument. Defendant ignores that her deposit of a forged check is sufficient to establish the charged felony. Defendant Rush's alternative claim that the trial court erroneously denied her CPL 330.30 motion to set aside the verdict based on a courtroom closure is partially unpreserved and otherwise without merit, as no constitutionally proscribed closure is apparent on the record below.

I. People v. Kerri Roberts

Defendant Roberts entered a sporting goods store in New York City and attempted to purchase over $1,000 worth of merchandise with an American Express credit card imprinted with the name "Craig E. Jonathan." Along with the card, Roberts presented the cashier with a New Jersey driver's license with a name matching the credit card, but featuring Roberts' actual photograph. When the store's machine was unable to read the credit card, Roberts insisted that the cashier enter the card number manually, even after the manager told Roberts he knew the card was fraudulent and that he would call the police if Roberts did not leave. Roberts persisted but never succeeded in purchasing the goods.

After Robert's arrest just outside the store, the police searched his wallet and found a New York State identification card bearing his photograph and the name Kerri Roberts. The wallet also contained a piece of paper, which listed an account number, an expiration date, a three-digit security code which appeared to be the card verification value number commonly printed on the back of credit cards, the names of four different types of credit cards with an "X" printed next to "American Express," and a reference to a customer name and a billing address near Buffalo. Further investigation revealed that the credit card account number on the card Roberts presented at the store was issued to a person living near Buffalo, yet that person had not given Roberts or anyone else permission to use her card, nor did the person know anyone named Craig E. Jonathan.

Roberts admitted to the police that he paid someone earlier that day for the "fake" credit card and New Jersey identification. Roberts concedes that this New Jersey Craig E. Jonathan was a fabricated identity of a fictitious person. Indeed, the New Jersey Motor Vehicle Commission confirmed it had never issued a driver's license to a "Craig E. Jonathan" and there was no one with that name in the state's records.

At Roberts' trial on one count of identity theft in the second degree ( Penal Law § 190.79 ) and two counts of criminal possession of a forged instrument in the second degree ( Penal Law § 170.25 ), Roberts moved to dismiss the identity theft count, arguing that he was pretending to be Craig E. Jonathan and not the actual credit card account holder. The court denied the motion and the jury convicted defendant as charged.

The Appellate Division, First Department, modified to the extent of vacating the identity theft conviction and dismissing that count of the indictment, but otherwise affirmed ( People v. Roberts, 138 A.D.3d 461, 29 N.Y.S.3d 305 [1st Dept. 2016] ). As relevant to this appeal, the Court relied on its prior ruling in People v. Barden, 117 A.D.3d 216, 225, 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] ), in which it held that evidence of the mere use of personal identifying information is insufficient to establish the crime of identity theft, and that, to prove its case, the People must establish that a defendant "both used the victim's personal identifying information and assumed the victim's identity." ( Roberts, 138 A.D.3d at 462, 29 N.Y.S.3d 305 ). The court concluded the proof in the instant case established that defendant used the personal identifying information of the victim but not that he assumed her identity because, instead, "he assumed the identity of a fictitious person" (id. ).

A Judge of this Court granted the People leave to appeal (28 N.Y.3d 1075, 47 N.Y.S.3d 233, 69 N.E.3d 1029 [2016] ), and denied defendant leave to appeal from the same Appellate Division order (28 N.Y.3d 1075, 47 N.Y.S.3d 233, 69 N.E.3d 1029 [2016] ).

People v. Terri J. Rush

Defendant Rush was convicted for her part in a criminal scheme in which she deposited stolen and forged checks in a bank account opened under the name of an innocent third party, from which the funds were later withdrawn. As established at Rush's trial, an accomplice set up a bank account in the name of an area resident, without that resident's knowledge or permission. Around the same time, a local business discovered that several company checks had been stolen and that three had been made payable to the victim and deposited. The company notified the police, who eventually discovered that over the course of three days, Rush had deposited the stolen checks into the account opened in the victim's name and made ATM withdrawals totaling over $1,000 at different bank branches. The victim's signature was forged on the back of each check, and the deposit slips listed his name and the number of the unauthorized bank account. The bank's senior fraud investigator testified that customers did not have to show identification to make deposits, although identification was required for bank-employee-assisted withdrawals and check cashing.

During a colloquy with the judge on the first scheduled day of Rush's trial, defense counsel informed the court that the father of Rush's children was in the courtroom and counsel requested that he be present throughout the trial, including during jury selection. The judge replied, "Well, initially he can't be in here because we are lining up jurors against that wall." Then, in response to the judge's inquiry, the deputy confirmed there were not enough seats for all the prospective jurors and that the room was near capacity. The judge added, The judge explained that recently there had been a situation in which jurors were able to hear comments about the case from people in the courtroom. Defense counsel continued to object and suggested as an alternative that the trial be moved to a larger courtroom.

"[u]ntil we've seated these people he cannot come in here and the reason is I don't want him mingling with the other jurors because the only place for him would be up against the wall with the other jurors who will be standing until we have seated twenty-one. He can come in as soon as that has taken place."

The judge countered that the family member would not miss any questioning, "[j]ust twenty-one people marching in the box is all he can't observe because there is just no room." The court agreed to have the individual notified as soon as he could reenter.

Prospective jurors were brought into the courtroom, and before seating them the judge gave a brief overview of the case and had them sworn in. The names of 21 jurors were called and then seated in the jury box. It is undisputed that the family member was absent from the courtroom during this time.

At the close of the People's case, Rush moved for a trial order of dismissal, which the court denied. The jury thereafter convicted Rush of one count each of identity theft in the first degree ( Penal Law § 190.80[3] ) and criminal possession of a forged instrument in the second degree ( Penal Law § 170.25 ) for one of the three check deposits charged in the indictment. The jury acquitted Rush of the forged instrument counts for the other two deposits and the court dismissed the two corresponding identity theft counts.

Defense counsel subsequently moved to set aside the verdict...