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

224
KA 11-02039
PRESENT: WHALEN, P.J., CENTRA, PERADOTTO, DEJOSEPH, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

TERRIE J. RUSH, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER, PHILLIPS LYTLE LLP,
BUFFALO (DEENA K. MUELLER OF COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LEAH R. MERVINE OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Melchor E.
Castro, A.J.), rendered August 12, 2011. The judgment convicted
defendant, upon a jury verdict, of identity theft in the first degree
and criminal possession of a forged instrument in the second degree.

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

     Memorandum: Defendant appeals from a judgment convicting her
upon a jury verdict 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). Defendant is convicted of assuming the
identity of another person by using the name of another person and
depositing a forged instrument into a bank account set up in the name
of that person. The People presented evidence that the check at issue
had been stolen from the company named as payor within a month before
the transaction at issue occurred. The person named as payee on the
check at issue and in whose purported account the check was deposited
testified that he did not set up the bank account, nor did he endorse
the check at issue or ask defendant to conduct any banking
transactions for him. Photos depicting a woman making a deposit at
the time the check at issue was deposited and depicting a woman
withdrawing funds from that account at an ATM in temporal proximity to
the deposit also were in evidence. Contrary to defendant’s
contention, viewing the evidence in the light most favorable to the
People (see People v Contes, 60 NY2d 620, 621), we conclude that the
evidence is legally sufficient to support the conviction of identity
theft in the first degree (see generally People v Bleakley, 69 NY2d
490, 495).

     We reject defendant’s contention that the phrase “assumes the
identity of another person” is a discrete element that must be proved
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                                                         KA 11-02039

(see People v Yuson, 133 AD3d 1221, 1221-1222, lv denied 27 NY3d 1157;
see also People v Box, 145 AD3d 1510, 1511). In Yuson, we expressly
declined to follow the decision of the First Department in People v
Barden (117 AD3d 216, 224-230, revd on other grounds 27 NY3d 550), and
we wrote 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 person” (id. at 1222). We thus
concluded in Yuson that, “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” (id.). Likewise, here the People
established that defendant used the personal identifying information
of another person, i.e., that person’s name and bank account number
(see Penal Law § 190.77 [1]), to defraud the bank herein (see
§ 190.80).

      We also reject defendant’s contention that, even assuming that
she used the person’s personal identifying information, she did not
“thereby” commit the offense of criminal possession of a forged
instrument because she possessed the check before she deposited it and
the use of the identifying information did not cause her to commit the
offense. We reject defendant’s overly restrictive interpretation of
the term “thereby” to mean “because of this” or “as a result of this
action,” and we instead conclude that the correct interpretation of
the term is “[b]y that means” or “in that way” (Black’s Law Dictionary
1707 [10th ed 2014]). We therefore conclude that the evidence is
legally sufficient to establish that there is a “valid line of
reasoning and permissible inferences which could lead a rational
person to the conclusion reached by the jury on the basis of the
evidence at trial” (Bleakley, 69 NY2d at 495), i.e., that defendant
assumed the identity of another person by using personal identifying
information of that person and thereby committed the crime of criminal
possession of a forged instrument by uttering the check, that is, by
presenting it as if it were genuine (see Black’s Law Dictionary 1781
[10th ed 2014]; see also William C. Donnino, Practice Commentary,
McKinney’s Cons Laws of NY, Book 30, Penal Law § 170.00, at 330).

     We further conclude that, contrary to the contention of
defendant, when viewing the elements of the crimes as charged to the
jury (see People v Danielson, 9 NY3d 342, 349), the verdict is not
against the weight of the evidence with respect to the element of
knowledge, and with respect to identity (see generally Bleakley, 69
NY2d at 495). Even assuming, arguendo, that a different verdict would
not have been unreasonable, we conclude that the jury did not fail to
give the evidence the weight it should be accorded (see id.).
Specifically, the People presented evidence that defendant both
deposited the stolen check at issue into the account and withdrew
funds from that account, and the named payee and account holder
testified that he did not set up the account, did not endorse the
check and did not authorize defendant to conduct any banking
transactions on his behalf. Furthermore, the jury had the opportunity
to compare the photos of the person making a deposit and a withdrawal
                                 -3-                           224
                                                         KA 11-02039

at the ATM at the relevant times and was in a position to make “an
independent assessment regarding whether the [person] in the bank
photographs was indeed the defendant” (People v Russell, 79 NY2d 1024,
1025). Contrary to defendant’s further contention, the photographic
evidence taken at the ATM machine was relevant with respect to intent,
knowledge and identity, and thus County Court did not abuse its
discretion in admitting that evidence upon determining that it was
more probative than prejudicial (see People v Goodrell, 130 AD3d 1502,
1503).

     We agree with defendant, however, that the court erred in closing
the courtroom during jury selection because, inter alia, there was
standing room only, thereby excluding the father of defendant’s
children from the courtroom (see People v Floyd, 21 NY3d 892, 893-894;
People v Torres [appeal No. 1], 97 AD3d 1125, 1126, affd 20 NY3d 890;
People v Martin, 16 NY3d 607, 611). Indeed, under those
circumstances, the court was “required to consider alternatives even
if neither party [had] suggest[ed] any” (Martin, 16 NY3d at 612). We
conclude, however, that, under the circumstances presented here, the
court properly denied defendant’s motion pursuant to CPL 330.30 (1),
seeking to set aside the verdict based on the courtroom closure.

     As an initial matter, by requesting a hearing based upon the
court’s recollection that a deputy left the courtroom after the venire
panel was seated in order to locate defendant’s companion, defendant
waived her contention that the court improperly expanded the record
when it conducted a hearing on her CPL 330.30 (1) motion. The trial
record establishes that, rather than closing the courtroom until some
prospective jurors were excused (cf. Floyd, 21 NY3d at 893; Torres, 97
AD3d at 1127; Martin, 16 NY3d at 610), the court stated that
defendant’s companion was required to leave the courtroom until the
first 21 prospective jurors were seated for voir dire, and that the
man would be notified when that process was completed. The court
security officer testified at the hearing that, after the first 21
prospective jurors were seated, she and the other court security
officer cleared the rear row of the courtroom and she went into the
lobby to find defendant’s companion (cf. Torres, 97 AD3d at 1127), but
that no one was out there, with the exception of another deputy. She
testified that “the judge was just beginning to give his speech to the
jury panel” when she exited the courtroom to look for defendant’s
companion. She advised defense counsel at the first break that the
man was “gone.” She testified that she looked through the windows of
the courtroom doors throughout the day and did not see the man. We
conclude that under the circumstances presented here, where the
process of jury selection had not yet begun before the courtroom was
reopened (cf. Torres, 97 AD3d at 1126-1127; Martin, 16 NY3d at 613;
see generally People Alvarez, 20 NY3d 75, 81, cert denied ___ US ___,
133 S Ct 2004), the improper closing of the courtroom was “too trivial
to warrant the remedy of nullifying an otherwise properly conducted .
. . criminal trial” (Gibbons v Savage, 555 F3d 112, 121 [2nd Cir
                                  -4-                  224
                                                 KA 11-02039

2009], cert denied 558 US 932).




Entered:   March 24, 2017               Frances E. Cafarell
                                        Clerk of the Court
