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

1099
KA 14-00192
PRESENT: WHALEN, P.J., CENTRA, LINDLEY, NEMOYER, AND TROUTMAN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

BRANDON W. BOX, DEFENDANT-APPELLANT.


THE ABBATOY LAW FIRM, PLLC, ROCHESTER (DAVID M. ABBATOY, JR., OF
COUNSEL), FOR DEFENDANT-APPELLANT.

BRANDON W. BOX, DEFENDANT-APPELLANT PRO SE.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County (Alex
R. Renzi, J.), rendered December 11, 2013. The judgment convicted
defendant, upon a jury verdict, of identity theft in the first degree
and falsifying business records in the first degree.

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

      Memorandum: Defendant appeals from a judgment convicting him,
following a jury trial, of identity theft in the first degree (Penal
Law § 190.80 [1]) and falsifying business records in the first degree
(§ 175.10), based on allegations that he applied for a credit card in
his grandfather’s name and then either he or his accomplice used that
credit card to make over $2,000 in cash withdrawals or gift card
purchases at two different Wal-Mart stores over the course of one
week. To the extent that defendant contends that the evidence is
legally insufficient to establish that the multiple uses of the credit
card were part of a single, intentional crime as opposed to separate
and distinct lesser crimes, we conclude that defendant failed to
preserve that contention for our review by a timely motion to dismiss
directed at that specific deficiency in the proof (see People v Gray,
86 NY2d 10, 19). Were we to reach the merits of that contention, we
would conclude that there is sufficient evidence that the repeated use
of the credit card “was governed by a single intent and a general
illegal design” (People v Cox, 286 NY 137, 143, rearg denied 286 NY
706).

     In his pro se supplemental brief, defendant contends that the
evidence is legally insufficient to establish that he assumed his
grandfather’s identity. That contention is also not preserved for our
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                                                         KA 14-00192

review (see Gray, 86 NY2d at 19) and, in any event, we conclude that
it lacks merit (see People v Yuson, 133 AD3d 1221, 1222, lv denied 27
NY3d 1157).

     Contrary to defendant’s contention, viewing the evidence in light
of the elements of the crimes 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 with respect to defendant’s intent
to defraud, an element of both offenses (see generally People v
Bleakley, 69 NY2d 490, 495). Although the grandfather did not
testify, the evidence at trial established that defendant lacked the
grandfather’s permission to apply for and use the credit card, thereby
establishing that defendant acted with an intent to defraud.
Defendant filed the application in the predawn hours of January 18,
2013 and, although he testified that he filed the application in the
presence of and with the permission of his grandfather, defendant’s
sister, with whom the grandfather lived, testified that defendant did
not visit his grandfather during the entire month of January 2013.
Moreover, the accomplice testified that defendant filed the
application online at his own residence without the grandfather’s
knowledge or consent. Defendant and the accomplice admitted at trial
that they made over $1,000 in cash withdrawals and that they used that
money to buy crack cocaine. From documentary exhibits and the
accomplice’s testimony, the People established that defendant and the
accomplice purchased over $1,000 in gift cards, which they traded for
crack cocaine. In a recorded telephone call with his mother,
defendant attempted to ensure that the grandfather would not testify
at trial, which would be illogical if, in fact, defendant had the
grandfather’s permission to apply for and use the credit card.

     Defendant failed to preserve for our review his contention that
Supreme Court improperly limited defense counsel’s summation (see
People v Kimmy, 137 AD3d 1723, 1723-1724, lv denied 27 NY3d 1134;
People v Gong, 30 AD3d 336, 336, lv denied 7 NY3d 812), and we decline
to exercise our power to review that contention as a matter of
discretion in the interest of justice (see CPL 470.15 [6] [a]).
Moreover, although defendant contends that the prosecutor improperly
shifted the burden of proof during summation, we conclude that
reversal is not warranted because the prosecutor’s “single improper
comment was not so egregious that defendant was thereby deprived of a
fair trial” (People v Willson, 272 AD2d 959, 960, lv denied 95 NY2d
873). We note that the court “sustained defendant’s objection to the
improper comment and instructed the jury to disregard it, and the jury
is presumed to have followed the court’s instructions” (People v
Smalls, 100 AD3d 1428, 1430, lv denied 21 NY3d 1010).

     Defendant contends that the indictment was duplicitous and
multiplicitous and, further, that the testimony at trial rendered the
indictment duplicitous. The Court of Appeals has unequivocally held
that “issues of non-facial duplicity, like those of facial duplicity,
must be preserved for appellate review,” and defendant failed to do so
by either a motion to dismiss the indictment or an objection at trial
(People v Allen, 24 NY3d 441, 449-450; see People v Rivera, 133 AD3d
1255, 1256, lv denied 27 NY3d 1154). Defendant likewise failed to
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                                                         KA 14-00192

preserve for our review his multiplicity contention “inasmuch as [he]
failed to challenge the indictment on that ground” (People v Fulton,
133 AD3d 1194, 1194, lv denied 26 NY3d 1109, reconsideration denied 27
NY3d 997; see People v Morey, 224 AD2d 730, 731, lv denied 87 NY2d
1022). We decline to exercise our power to review those contentions
as a matter of discretion in the interest of justice (see CPL 470.15
[6] [a]).

     With respect to count two, charging defendant with falsifying
business records in the first degree (Penal Law § 175.10), defendant
contends that this count impermissibly “double counts” defendant’s
single criminal intent in violation of People v Cahill (2 NY3d 14).
We reject that contention. Section 175.10 provides that a person is
guilty of falsifying business records in the first degree if he or she
commits the crime of falsifying business records in the second degree
and “his [or her] intent to defraud includes an intent to commit
another crime or to aid or conceal the commission thereof.” Defendant
thus contends that his intent to defraud in using the credit card was
“not meaningfully independent of his intent to defraud through
commission (or concealment) of the identity theft associated with
gaining the credit card.”

     Defendant’s reliance on Cahill in support of that contention is
misplaced. In Cahill, the defendant was charged with murder in the
first degree under Penal Law § 125.27 (1) (a) (vii), based on the
aggravating factor that the victim was killed during the commission of
a burglary. In that case, the crime the defendant intended to commit
for purposes of the underlying burglary was the murder of the victim,
and the Court thus held that, “[i]f the burglar intends only murder,
that intent cannot be used both to define the burglary and at the same
time bootstrap the second degree (intentional) murder to a capital
crime” (id. at 65). In short, the intent to commit murder could not
serve as both the basis for the crime (intentional murder) as well as
the basis for the aggravating factor (burglary committed with the
intent to commit the crime of murder) for the same murder charge. To
do so would “double count” the same criminal intent in a single
charge. Here, however, defendant’s intent to commit a crime, an
element of falsifying business records in the first degree, was the
intent to commit the separate and distinct crime of identity theft.
We thus conclude that, even if defendant’s intent to defraud was the
same in both charges, the indictment did not impermissibly double-
count that intent in a single charge.

     Also with respect to count two, defendant contends that the
court’s instruction on that charge violated the rule of People v
Gaines (74 NY2d 358) and may have resulted in a lack of unanimity in
the verdict in violation of People v McNab (167 AD2d 858). Because
defendant failed to object to the charge as given, we conclude that
those contentions are not preserved for our review (see Allen, 24 NY3d
at 449; People v Curella, 296 AD2d 578, 578; People v Nelson, 186 AD2d
1068, 1068, lv denied 81 NY2d 764), and we decline to exercise our
power to review those contentions as a matter of discretion in the
interest of justice (see CPL 470.15 [6] [a]).
                                 -4-                          1099
                                                         KA 14-00192

     Throughout the proceedings in the trial court, defendant
requested a substitution of counsel, contending that defense counsel
was operating under a conflict of interest because another attorney in
the Public Defender’s office had previously represented the accomplice
on unrelated charges. In both his main and pro se supplemental
briefs, defendant contends that the court erred in refusing to
substitute counsel and in deferring to defense counsel’s conclusion
that there was no conflict of interest. We reject defendant’s
contentions. A review of the record establishes that the court made
the requisite minimal inquiry (see People v Porto, 16 NY3d 93, 99-101;
People v Sides, 75 NY2d 822, 824-825), and properly concluded that
there was no basis to substitute counsel where, as here, defendant
failed to “show that the conduct of his defense was in fact affected
by the operation of the conflict of interest” (People v Bones, 309
AD2d 1238, 1240, lv denied 1 NY3d 568 [internal quotation marks
omitted]; see People v Harris, 99 NY2d 202, 210; People v Weeks, 15
AD3d 845, 847, lv denied 4 NY3d 892).

     In both his main and pro se supplemental briefs, defendant
contends that he was denied effective assistance of counsel based on
defense counsel’s failure to make various motions or requests.
Although defense counsel failed to make certain motions, “[t]here can
be no denial of effective assistance of trial counsel arising from
counsel’s failure to ‘make a motion or argument that has little or no
chance of success’ ” (People v Caban, 5 NY3d 143, 152), and
“[d]efendant . . . failed to demonstrate a lack of strategic or other
legitimate explanations for defense counsel’s alleged ineffectiveness
in . . . failing to request” certain jury instructions, including a
missing witness charge (People v Hicks, 110 AD3d 1488, 1489, lv denied
22 NY3d 1156; see People v Myers, 87 AD3d 826, 828, lv denied 17 NY3d
954; see generally People v Benevento, 91 NY2d 708, 712). To the
extent that defendant contends in his pro se supplemental brief that
defense counsel lost a video containing exculpatory evidence, that
contention is based on matters outside the record and must be raised
by a motion pursuant to CPL article 440 (see People v Weaver, 118 AD3d
1270, 1272, lv denied 24 NY3d 965).

     Defendant contends in his pro se supplemental brief that he was
entitled to dismissal of the indictment based on an alleged
Payton violation; that defense counsel was ineffective in failing to
request a hearing on that alleged violation; and that the court erred
in denying his pro se motions seeking such a hearing. Defendant’s
contentions are wholly lacking in merit. Even assuming, arguendo,
that defendant was arrested in his home without a warrant in violation
of Payton, we recognize that the remedy for such a violation would not
be dismissal of the indictment but, rather, suppression of any
evidence obtained from defendant following that violation “unless the
taint resulting from the violation has been attenuated” (People v
Harris, 77 NY2d 434, 437). Inasmuch as there was no evidence that
could be said to be a “ ‘product of’ the alleged Payton violation,”
there was nothing to suppress and thus no basis to hold a Payton
hearing (People v Jones, 38 AD3d 1272, 1273, lv denied 9 NY3d 866,
quoting New York v Harris, 495 US 14, 19).
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                                                         KA 14-00192

     Although defendant correctly contends in both his main and pro se
supplemental briefs that the court erred in refusing to instruct the
jury on corroboration (see CPL 60.22), “in light of the overwhelming
corroborating proof of defendant’s guilt, the failure to charge the
accomplice rule is harmless error” (People v Kimbrough, 155 AD2d 935,
935, lv denied 75 NY2d 814; see People v Fortino, 61 AD3d 1410, 1411,
lv denied 12 NY3d 925). Finally, we reject defendant’s contention
that he was not properly sentenced as a second felony offender (see
CPL 400.21). “The election by defendant to remain silent ‘does not
negate the opportunity accorded him to controvert [the predicate
felony statement]’ . . . , and ‘[u]ncontroverted allegations in the
statement shall be deemed to have been admitted by the defendant’ ”
(People v Neary, 56 AD3d 1224, 1224, lv denied 11 NY3d 928; see CPL
400.21 [3]; People v Woodall, 145 AD2d 921, 921).




Entered:   December 23, 2016                    Frances E. Cafarell
                                                Clerk of the Court
