        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1087
KA 12-01688
PRESENT: SMITH, J.P., CENTRA, VALENTINO, WHALEN, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

MORRIS B. YUSON, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DAVID R. JUERGENS OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DANIEL GROSS OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Frank P.
Geraci, Jr., J.), rendered March 7, 2012. The judgment convicted
defendant, upon a jury verdict, of identity theft in the first degree
(two counts) and criminal possession of a forged instrument in the
second degree (two counts).

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of two counts each of identity theft in the first
degree (Penal Law § 190.80 [3]) and criminal possession of a forged
instrument in the second degree (§ 170.25), stemming from two
different incidents in which defendant deposited forged checks into
his bank account. Defendant, relying on People v Barden (117 AD3d
216, 224-230, lv granted 24 NY3d 959), contends that the conviction of
identity theft in the first degree is not supported by legally
sufficient evidence because the People did not establish that he
assumed the identity of another person. We reject that contention.
As relevant herein, the statute provides that “[a] person is guilty of
identity theft in the first degree when he or she knowingly and with
intent to defraud assumes the identity of another person by presenting
himself or herself as that other person, or by acting as that other
person or by using personal identifying information of that other
person, and thereby . . . commits or attempts to commit a class D
felony” (§ 190.80 [3]). There was no evidence at trial that defendant
presented himself as the victims or acted as those victims, and the
People proceeded on the theory that defendant assumed the identity of
the victims by using their personal identifying information. In
relevant part, the term “ ‘personal identifying information’ means a
person’s name, address, telephone number, date of birth, driver’s
license number, social security number, place of employment . . . [or]
                                 -2-                             1087
                                                            KA 12-01688

checking account number or code” (§ 190.77 [1]).

     We decline to follow Barden, which concludes that “assumption of
identity is not necessarily accomplished when a person uses another’s
personal identifying information” (id. at 227), and that the People
must prove both that a defendant used the personal identifying
information of the victim and that he assumed the victim’s identity
(see id. at 226-227). Instead, we conclude that the statute is
unambiguous and defines the phrase “assumes the identity of another
person” by the phrase that immediately follows it, i.e., by, inter
alia, using the personal identifying information of that other person
(Penal Law § 190.80). Therefore, inasmuch as the People established
that defendant used the personal identifying information of the
victims, they thereby established that defendant assumed their
identities for the purposes of the statute.

     Defendant’s further challenge to the legal sufficiency of the
evidence with respect to the identity theft convictions is not
preserved for our review (see People v Gray, 86 NY2d 10, 19). Viewing
the evidence in light of the elements of the crime of identity theft
in the first degree as charged to the jury (see People v Danielson, 9
NY3d 342, 349), we conclude that the verdict is not against the weight
of the evidence (see generally People v Bleakley, 69 NY2d 490, 495).
Finally, defendant contends that the ability of certain jurors to
remain fair and impartial was affected by an allegedly prejudicial
remark made by a police officer in their presence. County Court
questioned the jurors who were present when the remark was made and
determined that none of them overhead the prejudicial remark (see
generally People v Buford, 69 NY2d 290, 299). The court therefore did
not abuse its discretion in denying defendant’s motion for a mistrial
(see People v Matt, 78 AD3d 1616, 1617, lv denied 15 NY3d 954; People
v Bassett, 55 AD3d 1434, 1435, lv denied 11 NY3d 922; People v
Figueroa, 37 AD3d 246, 247, lv denied 8 NY3d 984).




Entered:   November 13, 2015                       Frances E. Cafarell
                                                   Clerk of the Court
