People v Wingate

People v Wingate 2015 NY Slip Op 08949 Decided on December 8, 2015 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 8, 2015
Sweeny, J.P., Acosta, Andrias, Moskowitz, JJ.
2468/11 -5134/11 16315B 1395/12 16315A 16315

[*1] The People of the State of New York, Respondent,

v

Chris Wingate, Defendant-Appellant.

Robert S. Dean, Center for Appellate Litigation, New York (Ben A. Schatz), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Jessica Olive of counsel), for respondent.

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 three to nine 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]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 8, 2015

CLERK