Opinion
74 KA 11–01448
05-04-2018
The PEOPLE of the State of New York, Respondent, v. Kathleen M. ECKERD, Defendant–Appellant.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (MARY P. DAVISON OF COUNSEL), FOR DEFENDANT–APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (MARY P. DAVISON OF COUNSEL), FOR DEFENDANT–APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.
PRESENT: PERADOTTO, J.P., CARNI, LINDLEY, CURRAN, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting her upon a jury verdict of, inter alia, identity theft in the first degree ( Penal Law § 190.80[1] ) and five counts of grand larceny in the third degree (§ 155.35[1] ). The conviction arises from a series of transactions in which defendant stole money from her employer by withdrawing money from a bank account that she unlawfully established in the name of her employer's corporation and then double-billed corporate clients and issued bad checks to cover up her thefts.
By failing to renew her motion to dismiss count one of the indictment at the close of proof, defendant failed to preserve for our review her contention that the evidence is legally insufficient to support the conviction of identity theft (see People v. Hines, 97 N.Y.2d 56, 61, 736 N.Y.S.2d 643, 762 N.E.2d 329 [2001], rearg. denied 97 N.Y.2d 678, 738 N.Y.S.2d 292, 764 N.E.2d 396 [2001] ; People v. Smith, 32 A.D.3d 1291, 1292, 821 N.Y.S.2d 356 [4th Dept. 2006], lv denied 8 N.Y.3d 849, 830 N.Y.S.2d 708, 862 N.E.2d 800 [2007] ). In any event, defendant's contention is without merit. The People established that defendant assumed the identity of the victim by using his personal identifying information and used the personal identifying information of the victim to commit the theft. Thus, the evidence is legally sufficient with respect to identity theft (see People v. Roberts, 31 N.Y.3d 406, 415, 79 N.Y.S.3d 597, 104 N.E.3d 701, 2018 N.Y. Slip Op. 03172, *5–7, 2018 WL 2048719 [2018] ; People v. Yuson, 133 A.D.3d 1221, 1221–1222, 20 N.Y.S.3d 263 [4th Dept. 2015], lv denied 27 N.Y.3d 1157, 39 N.Y.S.3d 391, 62 N.E.3d 131 [2016] ).
We reject defendant's further contention that she received ineffective assistance of counsel. There is nothing in the record to indicate that defendant was deprived of meaningful representation in the jury selection process or at trial (see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981] ). Moreover, there were legitimate, plausible explanations for defense counsel's handling of evidentiary matters at trial, and thus defendant failed "to demonstrate the absence of strategic or other legitimate explanations" for counsel's alleged shortcomings ( People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698 [1988] ; see People v. Kurkowski, 117 A.D.3d 1442, 1443, 984 N.Y.S.2d 761 [4th Dept. 2014] ). Defendant's contention that she received ineffective assistance because counsel failed to object to prosecutorial misconduct is without merit, inasmuch as the prosecutor did not engage in prosecutorial misconduct (see People v. Martinez, 114 A.D.3d 1173, 1174, 980 N.Y.S.2d 191 [4th Dept. 2014], lv denied 22 N.Y.3d 1200, 986 N.Y.S.2d 421, 9 N.E.3d 916 [2014] ). Viewing the evidence in light of the elements of the crime of identity theft 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 [2007] ), we reject defendant's further contention that the verdict is against the weight of the evidence with respect to that crime (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ).