People v. Petithomme

Appellate Division of the Supreme Court of New York

People v. Petithomme

131 A.D.3d 877, 17 N.Y.S.3d 22

CourtAppellate Division of the Supreme Court of the State of New York

DecidedSeptember 29, 2015

Docket15707 2355/11

StatusPublished

Cited by2 cases

This text of 131 A.D.3d 877 (People v. Petithomme) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Petithomme, 131 A.D.3d 877, 17 N.Y.S.3d 22 (N.Y. Ct. App. 2015).

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Opinion

*878 Judgment, Supreme Court, New York County (Michael Obus, J., at suppression hearing; Daniel McCullough, J., at jury trial and sentencing), rendered August 10, 2012, as amended August 22, 2012, convicting defendant of identity theft in the first and second degrees and forgery in the second degree, and sentencing him, as a second felony offender, to an aggregate term of 2V2 to 5 years, unanimously affirmed.

The court properly denied defendant’s motion to suppress a cell phone recovered from his person at the time of his arrest. There is no basis for disturbing the court’s credibility determinations. Defendant’s pattern of behavior, both before and after being stopped by the police, strongly indicated that he was a participant in his companion’s fraudulent credit card purchase, and provided probable cause for defendant’s arrest (see e.g. People v Arriaga, 204 AD2d 96 [1st Dept 1994]). In order to establish probable cause, the People were not required to prove accessorial liability under Penal Law § 20.00 beyond a reasonable doubt.

The court properly exercised its discretion in admitting evidence of an uncharged attempted online purchase involving the same fraudulently obtained credit card that was used in the charged crime. This evidence was relevant to establish defendant’s participation in the charged crime and his intent to defraud (see e.g. People v Scott, 85 AD3d 481 [1st Dept 2011], lv denied 17 NY3d 821 [2011]). The probative value of this evidence outweighed any potential for prejudice. Defendant’s claim that the court erred in failing to give a limiting instruction is unpreserved, and we decline to review it in the interest of justice. Even if a limiting instruction would have been appropriate, defendant may have had strategic reasons to avoid highlighting this evidence (see People v Wilson, 123 AD3d 626 [1st Dept 2014]).

We perceive no basis for reducing the sentence.

Concur— Friedman, J.P., Andrias, Saxe, Gische and Kapnick, JJ.

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*878 Judgment, Supreme Court, New York County (Michael Obus, J., at suppression hearing; Daniel McCullough, J., at jury trial and sentencing), rendered August 10, 2012, as amended August 22, 2012, convicting defendant of identity theft in the first and second degrees and forgery in the second degree, and sentencing him, as a second felony offender, to an aggregate term of 2V2 to 5 years, unanimously affirmed.

The court properly denied defendant’s motion to suppress a cell phone recovered from his person at the time of his arrest. There is no basis for disturbing the court’s credibility determinations. Defendant’s pattern of behavior, both before and after being stopped by the police, strongly indicated that he was a participant in his companion’s fraudulent credit card purchase, and provided probable cause for defendant’s arrest (see e.g. People v Arriaga, 204 AD2d 96 [1st Dept 1994]). In order to establish probable cause, the People were not required to prove accessorial liability under Penal Law § 20.00 beyond a reasonable doubt.

The court properly exercised its discretion in admitting evidence of an uncharged attempted online purchase involving the same fraudulently obtained credit card that was used in the charged crime. This evidence was relevant to establish defendant’s participation in the charged crime and his intent to defraud (see e.g. People v Scott, 85 AD3d 481 [1st Dept 2011], lv denied 17 NY3d 821 [2011]). The probative value of this evidence outweighed any potential for prejudice. Defendant’s claim that the court erred in failing to give a limiting instruction is unpreserved, and we decline to review it in the interest of justice. Even if a limiting instruction would have been appropriate, defendant may have had strategic reasons to avoid highlighting this evidence (see People v Wilson, 123 AD3d 626 [1st Dept 2014]).

We perceive no basis for reducing the sentence.

Concur— Friedman, J.P., Andrias, Saxe, Gische and Kapnick, JJ.

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Bluebook (online)

131 A.D.3d 877, 17 N.Y.S.3d 22, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-petithomme-nyappdiv-2015.

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