Opinion
105102
06-18-2015
The PEOPLE of the State of New York, Respondent, v. Resean BLOUNT, Appellant.
Sandra M. Colatosti, Albany, for appellant, and appellant pro se. P. David Soares, District Attorney, Albany (Brittany L. Grome of counsel), for respondent.
Sandra M. Colatosti, Albany, for appellant, and appellant pro se.
P. David Soares, District Attorney, Albany (Brittany L. Grome of counsel), for respondent.
Before: LAHTINEN, J.P., McCARTHY, GARRY and ROSE, JJ.
Opinion
McCARTHY, J.Appeal from a judgment of the County Court of Albany County (Herrick, J.), rendered April 19, 2012, upon a verdict convicting defendant of the crimes of criminal mischief in the second degree and criminal possession of a forged instrument in the second degree (eight counts).
In January 2011, police officers were dispatched to a motel to investigate a report, called in from a California resident, indicating that her credit card had just been used, without her prior authorization or consent, to rent a motel room in the Town of Colonie, Albany County. Upon arrival, police officers located defendant, among others, in the motel room that had been rented with the unauthorized credit card. The officers also found, among other things, a laptop computer, a credit card reader/skimmer device, numerous prepaid credit, debit and gift cards and various receipts for purchases made in and around the Capital District. Thereafter, a grand jury handed down a 16–count indictment charging defendant with one count each of criminal possession of forgery devices, unlawful possession of a skimmer device in the second degree and criminal mischief in the second degree and 13 counts of criminal possession of a forged instrument in the second degree. Following a jury trial, defendant was convicted of one count of criminal mischief in the second degree and eight counts of criminal possession of a forged instrument in the second degree. Defendant was thereafter sentenced, as a predicate felony offender, to an aggregate prison term of 9 to 18 years. Defendant now appeals.
Defendant's contention that he was convicted of multiplicitous counts is unpreserved given that he did not move before County Court to dismiss any counts on that basis (see People v. Ariosa, 100 A.D.3d 1264, 1267, 955 N.Y.S.2d 244 [2012], lv. denied 21 N.Y.3d 1013, 971 N.Y.S.2d 495, 994 N.E.2d 391 [2013] ; People v. Thompson, 34 A.D.3d 931, 932, 823 N.Y.S.2d 602 [2006], lv. denied 7 N.Y.3d 929, 827 N.Y.S.2d 698, 860 N.E.2d 1000 [2006] ). In any event, defendant's invitation to this Court to invoke its interest of justice jurisdiction is unavailing given that the multiplicity argument is without merit. An indictment is considered multiplicitous when two or more separate counts charge the same crime (see People v. Alonzo, 16 N.Y.3d 267, 269, 920 N.Y.S.2d 302, 945 N.E.2d 495 [2011] ; People v. Demetsenare, 243 A.D.2d 777, 779, 663 N.Y.S.2d 299 [1997], lv. denied 91 N.Y.2d 833, 667 N.Y.S.2d 687, 690 N.E.2d 496 [1997] ). Here, although the seven contested counts allegedly occurred on the same day and refer to the same victims, they occurred at four different locations, each at distinct times, and constituted separate transactions referencing distinct credit, debit or gift card receipts, each for a different monetary value. Accordingly, none of the seven contested counts occurred during a “ ‘single, uninterrupted occurrence’ ” with any of the other counts, and therefore, were this issue before us, we would find that the counts were not multiplicitous (People v. Alonzo, 16 N.Y.3d at 270, 920 N.Y.S.2d 302, 945 N.E.2d 495, quoting People v. Moffitt, 20 A.D.3d 687, 690, 798 N.Y.S.2d 556 [2005], lv. denied 5 N.Y.3d 854, 806 N.Y.S.2d 174, 840 N.E.2d 143 [2005] ).
Next, defendant's motion to dismiss the indictment did not allege that the People presented materially false evidence to the grand jury or that there was legally insufficient evidence to support the indictment and, therefore, those arguments are unpreserved for our review (see People v. Goldston, 126 A.D.3d 1175, 1176, 5 N.Y.S.3d 600 ; People v. Whitehead, 119 A.D.3d 1080, 1081, 990 N.Y.S.2d 301 [2014], lv. denied 24 N.Y.3d 1048, 998 N.Y.S.2d 318, 23 N.E.3d 161 [2014] ). Further, corrective action in the interest of justice is not warranted. The fact that the transaction receipts did not specifically name the victims, as alleged in the indictment, did not mean that there was not ample evidence to support the indictments; proof correlated the allegedly fraudulent purchases based upon credit/debit card numbers on the receipt. Otherwise, the errors in the indictment referencing a victim's name on receipts are insufficient to merit the exceptional remedy of dismissal (see People v. Whitehead, 119 A.D.3d at 1081, 990 N.Y.S.2d 301 ). Further, the record provides no support for a conclusion that the People relied on testimony that they knew to be false or that they “knowingly permitted any inaccurate testimony to stand” (People v. Davis, 83 A.D.3d 1210, 1212, 921 N.Y.S.2d 400 [2011], lvs. denied 17 N.Y.3d 794, 929 N.Y.S.2d 102, 952 N.E.2d 1097 [2012], 17 N.Y.3d 815, 929 N.Y.S.2d 804, 954 N.E.2d 95 [2011] ).
Defendant's contention that County Court failed to properly admonish the jury is also unpreserved (see People v. Miller, 118 A.D.3d 1127, 1130, 987 N.Y.S.2d 501 [2014], lv. denied 24 N.Y.3d 1086, 1 N.Y.S.3d 13, 25 N.E.3d 350 [2014] ; People v. Payton, 31 A.D.3d 580, 581, 818 N.Y.S.2d 273 [2006], lv. denied 7 N.Y.3d 850, 823 N.Y.S.2d 780, 857 N.E.2d 75 [2006] ). In any event, although the best practice is to include references to specific electronic communication methods and social media websites that are representative of those prohibited for communication and/or research purposes (see CJI2d[N.Y.] Jury Admonitions in Preliminary Instructions [rev. May 5, 2009] ), County Court's admonitions here—referring to the Internet and electronic means of communication/research generally—did not deprive defendant of due process of law (see People v. Williams, 46 A.D.3d 585, 586, 846 N.Y.S.2d 620 [2007], lv. denied 10 N.Y.3d 772, 854 N.Y.S.2d 334, 883 N.E.2d 1269 [2008] ).
Next, the People did not improperly withhold evidence. In order to establish a Rosario violation such as the one alleged, “ ‘it is incumbent upon a defendant to show that the claimed Rosario material was available and was not turned over to the defense’ ” (People v. Tucker, 40 A.D.3d 1213, 1215, 834 N.Y.S.2d 590 [2007], lv. denied 9 N.Y.3d 882, 842 N.Y.S.2d 794, 874 N.E.2d 761 [2007], quoting People v. Gillis, 220 A.D.2d 802, 805, 632 N.Y.S.2d 671 [1995], lv. denied 87 N.Y.2d 921, 641 N.Y.S.2d 603, 664 N.E.2d 514 [1996] ). Prior to trial, the People acknowledged that they had turned over all Rosario material, without objection from defendant. Otherwise, the record is devoid of evidence that the People withheld Rosario material. Accordingly, defendant's Rosario argument is without merit.
Finally, defendant was not deprived of the effective assistance of counsel. Each of the alleged deficiencies relates to trial counsel's failure to pursue certain legal arguments that have been raised on this appeal. Having addressed such arguments and having found each of them to be without merit, we conclude that defense counsel did not provide ineffective assistance in failing to further arguments that had “little or no chance of success” (People v. Stultz, 2 N.Y.3d 277, 287, 778 N.Y.S.2d 431, 810 N.E.2d 883 [2004] ; see People v. Desmond, 118 A.D.3d 1131, 1136, 988 N.Y.S.2d 703 [2014], lv. denied 24 N.Y.3d 1002, 997 N.Y.S.2d 120, 21 N.E.3d 572 [2014] ; People v. Bahr, 96 A.D.3d 1165, 1167, 946 N.Y.S.2d 675 [2012], lv. denied 19 N.Y.3d 1024, 953 N.Y.S.2d 557, 978 N.E.2d 109 [2012] ).
Defendant's remaining contentions lack merit.
ORDERED that the judgment is affirmed.
LAHTINEN, J.P., GARRY and ROSE, JJ., concur.