People v Appau-Kwarteng (Kwabena)

[*1] People v Appau-Kwarteng (Kwabena) 2020 NY Slip Op 51164(U) Decided on October 5, 2020 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 5, 2020
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Edmead, P.J., Cooper, Higgitt, JJ.
570260/19

The People of the State of New York, Respondent,

against

Kwabena Appau-Kwarteng, Defendant-Appellant.

Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (Laurie Peterson, J.), rendered March 13, 2019, convicting him, upon a plea of guilty, of identity theft in the third degree, and imposing sentence.

Per Curiam.

Judgment of conviction (Laurie Peterson, J.), rendered March 13, 2019, affirmed.

In view of defendant's knowing waiver of his right to prosecution by information, the accusatory instrument only had to satisfy the reasonable cause requirement (see People v Dumay, 23 NY3d 518, 522 [2014]). So viewed, the accusatory instrument was jurisdictionally valid. Allegations that on December 12, 2018, defendant made purchases at several stores utilizing a specified EPPI debit card, without the permission or authority of the owner of said debit card, were sufficient to charge defendant with identity theft in the third degree (see Penal Law § 190.78[1]; People v Roberts, 31 NY3d 406 [2018]). Contrary to defendant's present claim, the deponent police officer's sworn allegations, which were derived from his personal observations and firsthand information provided to him by the owner of the debit card, whose identity was known to law enforcement, "appear[] reliable" (CPL 70.10[2]). By pleading guilty, defendant not only waived any hearsay defect in the instrument (see People v Keizer, 100 NY2d 114, 122 [2003]), but also any claim that the instrument was based on information "without disclosing the source thereof" (People v Scott, 3 NY2d 148, 152 [1957]).

Defendant's challenge to the amount of the restitution order is unpreserved, inasmuch as he did not request a hearing to determine the amount of restitution or otherwise challenge the amount and, in fact, expressly consented to the amount of restitution during the plea colloquy (see People v Horne, 97 NY2d 404, 414 n 3 [2002]; People v Paul, 159 AD3d 657 [2018], lv denied 31 NY3d 1120 [2018]; see also People v Vazquez, 173 AD3d 907, 908 [2019]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: October 5, 2020