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

979
KA 11-00060
PRESENT: FAHEY, J.P., PERADOTTO, CARNI, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

MARIA F. RAMIREZ, DEFENDANT-APPELLANT.


LEANNE LAPP, PUBLIC DEFENDER, CANANDAIGUA (ERIC M. DOLAN OF COUNSEL),
FOR DEFENDANT-APPELLANT.

R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA, FOR RESPONDENT.


     Appeal from a judgment of the Ontario County Court (Craig J.
Doran, J.), rendered August 3, 2010. The judgment convicted
defendant, upon a jury verdict, of falsifying business records in the
first degree, criminal mischief in the fourth degree and petit
larceny.

     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 falsifying business records in the first degree
(Penal Law § 175.10), criminal mischief in the fourth degree (§
145.00), and petit larceny (§ 155.25). We reject defendant’s
contention that the evidence adduced at trial is legally insufficient
to support the conviction of falsifying business records (see
generally People v Bleakley, 69 NY2d 490, 495). Viewed in the light
most favorable to the prosecution (see People v Contes, 60 NY2d 620,
621), the evidence established that defendant knowingly returned
unpurchased merchandise at a Lord & Taylor store in exchange for store
credit. Defendant then used the fraudulently obtained store credit to
purchase several other items of merchandise before she left the store.
Thus, the People established that defendant “cause[d] a false entry in
the business records of an enterprise” (§ 175.05 [1]), i.e., that she
returned merchandise that she had not in fact purchased, and that she
thereby “inten[ded] . . . to aid or conceal [her] commission” of the
crime of petit larceny (§ 175.10; see People v Weaver, 89 AD3d 1477,
1478; People v Hopkins, 28 AD3d 1244, 1244, lv denied 7 NY3d 790).

     We reject defendant’s further contention that the first count of
the indictment, charging her with falsifying business records in the
first degree, was rendered duplicitous by the evidence at trial and
that it is unclear whether the jury reached a unanimous verdict
concerning that count. The summations of the prosecutor and defense
                                 -2-                           979
                                                         KA 11-00060

counsel made it clear that defendant’s return of merchandise she had
not purchased, i.e., the “no receipt” transaction, was the sole cash
register transaction that related to the count charging her with
falsifying business records. Thus, there is an adequate basis in the
record to connect that count of the indictment to a particular cash
register transaction, and there is no danger that different jurors
convicted defendant based on different cash register transactions
involving defendant on the day in question (see People v Mathis, 8
AD3d 966, 967-968, lv denied 3 NY3d 709; People v Drayton, 198 AD2d
770, 770). Finally, defendant contends that prosecutorial misconduct
on summation requires reversal. We reject that contention. “[A]ny
improprieties [in the prosecutor’s summation] were not so pervasive or
egregious as to deprive defendant of a fair trial” (People v Cox, 21
AD3d 1361, 1364, lv denied 6 NY3d 753 [internal quotation marks
omitted]).




Entered:   October 5, 2012                     Frances E. Cafarell
                                               Clerk of the Court
