People v. Wingate

134 A.D.3d 456, 19 N.Y.S.3d 880

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 8, 2015
• Docket: 2468/11 -5134/11 16315B 1395/12 16315A 16315
• Status: Published

Opinion

Judgment, Supreme Court, New York County (Thomas Farber, J.), rendered March 20, 2012, as amended March 26 and 28, 2012, convicting defendant, after a jury trial, of identity theft in the second degree, scheme to defraud in the second degree, criminal possession of stolen property in the fifth degree (three counts) and criminal impersonation in the second degree (two counts), and sentencing him to an aggregate term of one to three years, and judgments, same court and Justice, rendered March 11, 2013, convicting defendant, upon his pleas of guilty, of two counts of grand larceny in the second degree and two counts of identity theft in the first degree, and sentencing him to a concurrent aggregate term of 3 to 9 years, unanimously affirmed.

Authenticated records of purchase confirmation emails were properly admitted, not for their truth, but for the nonhearsay purpose of showing that defendant’s identifying information, including his address, phone number, last name, nickname and date of birth, appeared in a particular email account that was associated with a fraudulent credit card application. In the context of the case, the contents of these emails constituted circumstantial evidence linking defendant to that account (see People v Boswell, 167 AD2d 928 [4th Dept 1990], lv denied 77 NY2d 876 [1991], lv dismissed 81 NY2d 785 [1993]; see also People v Lynes, 49 NY2d 286, 291-293 [1980]). In any event, any error in receipt of this evidence was harmless (see People v Crimmins, 36 NY2d 230 [1975]). Concur — Sweeny, J.P., Acosta, Andrias and Moskowitz, JJ.