Opinion
2019-02483 Ind. 2164/16
01-26-2022
The People of the State of New York, respondent, v. Theresa McDonnell, also known as Theresa Barth, appellant.
Laurette D. Mulry, Riverhead, NY (Lisa Marcoccia and Sharyn Gitter of counsel), for appellant. Raymond A. Tierney, District Attorney, Riverhead, NY (Nicole L. Gallo of counsel), for respondent.
Laurette D. Mulry, Riverhead, NY (Lisa Marcoccia and Sharyn Gitter of counsel), for appellant.
Raymond A. Tierney, District Attorney, Riverhead, NY (Nicole L. Gallo of counsel), for respondent.
BETSY BARROS, J.P. FRANCESCA E. CONNOLLY SYLVIA O. HINDS-RADIX ROBERT J. MILLER, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Suffolk County (Fernando Camacho, J.), rendered April 12, 2018, convicting her of grand larceny in the second degree, offering a false instrument for filing in the first degree, and identity theft in the first degree (two counts), upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's contention that the prosecutor's comments during her opening statement and summation constructively amended the indictment by advancing a new theory of grand larceny in the second degree at trial is unpreserved for appellate review (see CPL 470.05[2]; People v Grant, 189 A.D.3d 2112, 2114; People v Williams, 170 A.D.3d 1046, 1048). In any event, the contention is without merit, as the indictment did not limit the count of grand larceny in the second degree to a theory involving solely the initial transfer of funds between firm accounts (see People v Guidice, 83 N.Y.2d 630, 636-637; People v McGrew, 103 A.D.3d 1170, 1174; People v Gonzalez, 202 A.D.2d 606, 607).
The defendant's contentions that the two counts of identity theft in the first degree were multiplicitous and that her conviction of both counts violated constitutional principles of double jeopardy are unpreserved for appellate review (see CPL 470.05[2]; People v Gonzalez, 99 N.Y.2d 76, 82; People v Rosario, 184 A.D.3d 676, 677). In any event, the contentions are without merit. The defendant was convicted under distinct subdivisions of the statute, each requiring proof of an additional fact (see Penal Law § 190.80[1], [2]; CPL 200.30[2]; People v Alonzo, 16 N.Y.3d 267, 269-271; People v Ayala, 172 A.D.3d 1084, 1084; Matter of Lavon S., 136 A.D.3d 1044, 1046).
The Supreme Court providently exercised its discretion in permitting the People to proffer evidence regarding the defendant's receipt of a $300,000 loan from a private lender through the use of fraudulent bank statements. The evidence was inextricably interwoven with the count of grand larceny in the second degree, as it was part and parcel of how the defendant was able to obtain an overage check from the firm at the closing of the property (see People v Kims, 24 N.Y.3d 422, 438; People v Ramirez, 180 A.D.3d 811, 812; People v Gross, 172 A.D.3d 741, 741) and was probative of the defendant's intent to commit the charged crime and the absence of accident or mistake (see People v Bayne, 82 N.Y.2d 673, 676; People v Barnes, 160 A.D.3d 890, 891). Further, the probative value of the evidence outweighed the potential for prejudice to the defendant (see People v Bittrolff, 165 A.D.3d 690, 691).
The defendant's challenges to the Supreme Court's charge to the jury are unpreserved for appellate review (see CPL 470.05[2]; People v Keschner, 25 N.Y.3d 704, 721; People v Darby, 196 A.D.3d 643, 645). In any event, the court's charge on grand larceny in the second degree did not limit the jury to consideration of solely the initial transfer of funds between firm accounts, and the charge adequately conveyed the applicable legal principles (see People v Norman, 85 N.Y.2d 609, 618 n 3; People v Curran, 139 A.D.3d 1087, 1089).
The defendant's contention that there was legally insufficient evidence to support the conviction of grand larceny in the second degree is unpreserved for appellate review (see CPL 470.05[2]; People v Kolupa, 13 N.Y.3d 786, 787; People v Hawkins, 11 N.Y.3d 484, 492). However, contrary to the People's contention, the defendant did preserve for appellate review her legal sufficiency challenge to the convictions of identity theft in the first degree. Since the defendant's case did not supply any additional evidence of guilt relative to the counts of identity theft in the first degree, the defendant was not required to renew her motion at the close of the evidence in order to preserve her current contentions (see People v Murray, 163 A.D.3d 1000, 1001; People v Squires, 68 A.D.3d 900, 900). In any event, viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish the defendant's guilt of grand larceny in the second degree and both counts of identity theft in the first degree beyond a reasonable doubt. Moreover, upon our independent review pursuant to CPL 470.15(5), we are satisfied that the verdict of guilt as to those crimes was not against the weight of the evidence (see People v Romero, 7 N.Y.3d 633).
The Supreme Court lawfully imposed consecutive sentences on the convictions of grand larceny in the second degree and offering a false instrument for filing in the first degree, as the actus reus elements of those crimes do not overlap (see Penal Law §§ 70.25[2]; 155.40[1]; 175.35[1]; People v Brahney, 29 N.Y.3d 10, 14). Moreover, those crimes involved separate and distinct acts, committed months apart (see People v Brahney, 29 N.Y.3d at 14-15). The sentence imposed was not excessive (see People v Suitte, 90 A.D.2d 80).
The defendant's remaining contention is without merit.
BARROS, J.P., CONNOLLY, HINDS-RADIX and MILLER, JJ., concur.