People v Petithomme

People v Petithomme 2015 NY Slip Op 06962 Decided on September 29, 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 September 29, 2015
Friedman, J.P., Andrias, Saxe, Gische, Kapnick, JJ.
15707 2355/11

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

v

Louis Petithomme, Defendant-Appellant.

Robert S. Dean, Center for Appellate Litigation, New York (Claudia B. Flores of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (John T. Hughes of counsel), for respondent.

Judgment, Supreme Court, New York County (Michael Obus, J. at suppression hearing; Daniel McCullough, J. at jury trial and sentencing), rendered August 10, 2012, as amended August 22, 2012, convicting defendant of identity theft in the first and second degrees and forgery in the second degree, and sentencing him, as a second felony offender, to an aggregate term of 2½ to 5 years, unanimously affirmed.

The court properly denied defendant's motion to suppress a cell phone recovered from his person at the time of his arrest. There is no basis for disturbing the court's credibility determinations. Defendant's pattern of behavior, both before and after being stopped by the police, strongly indicated that he was a participant in his companion's fraudulent credit card purchase,

and provided probable cause for defendant's arrest (see e.g. People v Arriaga, 204 AD2d 96 [1st Dept 1994]). In order to establish probable cause, the People were not required to prove accessorial liability under Penal Law § 20.00 beyond a reasonable doubt.

The court properly exercised its discretion in admitting evidence of an uncharged attempted online purchase involving the same fraudulently obtained credit card that was used in the charged crime. This evidence was relevant to establish defendant's participation in the charged crime and his intent to defraud (see e.g. People v Scott, 85 AD3d 481 [1st Dept 2011], lv denied 17 NY3d 821 [2011]). The probative value of this evidence outweighed any potential for prejudice. Defendant's claim that the court erred in failing to give a limiting instruction is unpreserved, and we decline to review it in the interest of justice. Even if a limiting instruction [*2]would have been appropriate, defendant may have had strategic reasons to avoid highlighting this evidence (see People v Wilson, 123 AD3d 626 [1st Dept 2014]).

We perceive no basis for reducing the sentence.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: SEPTEMBER 29, 2015

CLERK