People v. Lloyd

118 A.D.3d 1117, 987 N.Y.S.2d 672
Appellate Division of the Supreme Court of the State of New York·Decided June 12, 2014·Published·Cited by 7 cases

Opinion

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 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 3x/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 at[1119] torney 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 AD3d 994, 996-997 [2013]; People v Mattis, 108 AD3d 872, 874 [2013], lv denied 22 NY3d 957 [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 AD3d 981, 982 [2013]; People v Beckingham, 57 AD3d 1098, 1099-1100 [2008], lv denied 13 NY3d 742 [2009]; see also People v Dukes, 53 AD3d 1101, 1101 [2008], lv denied 11 NY3d 831 [2008]). Moreover, considering the totality of the circumstances (see People v Aveni, 22 NY3d 1114, 1117 [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 NY3d 629, 642 [2014]; see People v Wolfe, 103 AD3d 1031, 1035 [2013], lv denied 21 NY3d 1021 [2013]; People v Jaeger, 96 AD3d 1172, 1174 [2012], lv denied 19 NY3d 997 [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 (see Penal Law § 165.45 [2]; People v Hall, 57 AD3d 1222, 1226 [2008], lv denied 12 NY3d 817 [2009]). Here, the police recovered a New York benefit card and three credit/bank cards from defendant’s apartment.1 Inasmuch as defendant was 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 NY2d 624, 628 [1991]; People v Hall, 57 AD3d at 1226; People v White, 251 AD2d 157, 157 [1998], lv denied 92 NY2d 908 [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 [1120] 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 AD3d 713, 714 [2009]; People v Hall, 57 AD3d at 1227).

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 (see Penal Law § 170.10), “ ‘with knowledge that it is forged and with intent to defraud, deceive or injure another’ ” (People v Rebollo, 107 AD3d 1059, 1060 [2013], quoting Penal Law § 170.25; see People v Hughes, 111 AD3d 1170, 1171 [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 AD3d 1166, 1166 [2014]; People v Monteiro, 93 AD3d 898, 899 [2012], lv denied 19 NY3d 964 [2012]).

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People v. Lloyd, 118 A.D.3d 1117, 987 N.Y.S.2d 672 (N.Y. Ct. App. 2014).

118 A.D.3d 1117 (People v. Lloyd) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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