People v Forde

[*1] People v Forde 2014 NY Slip Op 51843(U) Decided on December 18, 2014 Supreme Court, New York County Merchan, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 18, 2014
Supreme Court, New York County

The People of the State of New York,

against

Aslam Forde and KABA SOW, Defendant.



4279/13



For the People of the State of New York:

Cyrus R. Vance, Jr., New York County District Attorney

By:R. Jeannie Campbell-Urban, Esq.

Assistant District Attorney

For Defendant Forde:

Gotlin & Jaffe

100 Lafayette Street

New York, New York 10013

By:Howard S. Jaffe, Esq.

For Defendant Sow:

New York County Defender Services

225 Broadway, Suite 1100
Juan M. Merchan, J.

Defendants Forde and Sow were charged in a twenty-nine count indictment with committing the crimes of Identity Theft in the First Degree in violation of Penal Law § 190.80(1) (count one); Identity Theft in the First Degree in violation of Penal Law § 190.80(3) (counts two through seven); Criminal Possession of a Forged Instrument in the Second Degree in violation of Penal Law § 170.25 (counts eight through sixteen); Identity Theft in the Second Degree in violation of Penal Law § 190.79(1) (count eighteen)[FN1] ; Criminal Possession of Stolen Property in the Fourth Degree in violation of Penal Law § 165.45(2) (counts nineteen through twenty-seven); Grand Larceny in the Fourth Degree in violation of Penal Law § 155.30(1) (count twenty-eight); and Petit Larceny in violation of Penal Law § 155.25 (count twenty-nine). Following a jury trial, both Defendants were acquitted of all but the last two counts, Grand Larceny in the Fourth Degree and Petit Larceny. Defendants now move, pursuant to Criminal Procedure Law § 330.30(1), to set aside the verdicts on the grounds that they are repugnant, and in the alternative, that they are not based on legally sufficient evidence.

Evidence at Trial

At trial, the People presented evidence that on September 25, 2013, the two Defendants together with Co-defendant Moussa Diasseny and an unapprehended male, entered Bloomingdale's department store in midtown Manhattan and within approximately thirty minutes, made five purchases totaling over three thousand dollars. The evidence showed that, upon entering Bloomingdale's, Defendants and their accomplices quickly and randomly selected an assortment of expensive merchandise. They placed the items on a cash register counter where their co-defendant, Moussa Diasseny, purchased the items using forged credit cards. The forged credit cards were embedded with stolen credit card numbers belonging to several individuals living in Texas, all of whom had checking accounts with the same Texas bank.

After Mr. Diasseny completed the purchase of the merchandise, the four men exited Bloomingdale's and walked to a nearby parking garage where they placed the merchandise in a parked vehicle. They then proceeded to Barney's, another upscale department store, where they employed the same method to purchase a pair of shoes. Upon returning to the parking garage, the two Defendants were arrested along with Mr. Diasseny. The fourth male fled the scene and remains at large. Police recovered all of the merchandise, as well as receipts for those items. They also recovered nine forged credits cards from Mr. Diasseny. Police recovered cell phones from each defendant and Mr. Diasseny, which revealed that Defendants and Mr. Diasseny all knew each other [*2]and that they had been in communication in the days leading up to the thefts.

The Parties' Contentions

Defendants argue that the jury's verdicts are repugnant because it was wholly illogical for the jury to find Defendants guilty of stealing property, and yet not guilty of the charges pertaining to how the goods were stolen. Defendants further argue that, even if the verdicts are not repugnant, they should still be set aside on the ground that they are not supported by legally sufficient evidence.

The People contend that the verdicts are not repugnant because Defendants' acquittals as to the crimes charged in counts one through twenty-seven do not negate any of the essential elements of Grand Larceny in the Fourth Degree or Petit Larceny. The People further contend that Defendants' argument that the verdicts are not supported by legally sufficient evidence is without merit because there is ample evidence in the record to support the jury's decision to convict Defendants of Grand Larceny in the Fourth Degree and Petit Larceny.

Discussion

Pursuant to CPL § 330.30(1), a defendant may move, after a verdict, but prior to sentencing, to set aside or modify a verdict on "[a]ny ground appearing in the record which, if raised upon an appeal from a prospective judgment of conviction, would require a reversal or modification of the judgment as a matter of law by an appellate court," CPL § 330.30(1); see also People v. Medina, 11 AD3d 331 (1st Dept. 2004), including, but not limited to, a repugnant verdict, see People v. Alfaro, 66 NY2d 985, 987 (1985), or legal insufficiency of the evidence to support the charges for which defendant was convicted, see People v. Danielson, 9 NY3d 342, 348 (2007). In deciding a CPL § 330.30 motion, "every reasonable inference must be drawn in the People's favor." People v. Floyd, 176 AD2d 554, 555 (1st Dept. 1999).

A.Repugnancy Claim

Repugnant verdicts are those which are "inherently inconsistent when viewed in light of the elements of each crime as charged to the jury." People v. Mohammad, 17 NY3d 532, 539 (2011) (internal quotations omitted), quoting People v. Tucker, 55 NY2d 1, 4 (1981); see also People v. DeLee, __N.Y.3d__2014, NY Slip Op. 08212 (Nov. 24, 2014). In other words, "a verdict is inconsistent or repugnant—the difference is inconsequential—where the defendant is convicted of an offense containing an essential element that the jury has found the defendant did not commit." People v. Trappier, 87 NY2d 55, 58 (1995); see also CPL § 300.30(5) ("[t]wo counts are inconsistent' when guilt of the offense charged in one necessarily negates guilt of the offense charged in the other"). In determining whether the jury reached "an inherently self-contradictory verdict," a court is limited to examining the essential elements of each count as charged to the jury. Tucker, 55 NY2d at 8. "Review of the entire record in an attempt to divine the jury's collective mental process of weighing the evidence is inappropriate." Id. at 4.

Here, the verdicts are not inherently inconsistent when viewed in light of the elements of each crime. Id. at 4. The Court charged the jury that: (1) Identity Theft in the First Degree under count one requires proof beyond a reasonable doubt that Defendants knowingly and with intent to defraud, assumed the identity of another person and thereby obtained goods, money, property, or services in an aggregate amount that exceeded two thousand dollars; (2) Identity Theft in the First Degree under counts two through seven requires proof beyond a reasonable doubt that Defendants knowingly and with the intent to defraud, assumed the identity of another person and thereby committed a class D felony; (3) Criminal Possession of a Forged Instrument in the Second Degree as charged in counts [*3]eight through sixteen requires proof beyond a reasonable doubt that Defendants knowingly and with the intent to defraud, deceive or injure another, personally or by acting in concert with another, uttered or possessed a forged instrument, namely a credit card; (4) Identity Theft in the Second Degree under count eighteen requires proof beyond a reasonable doubt that Defendants knowingly and with the intent to defraud, personally or by acting in concert with another person, assumed the identity of another person by presenting themselves as that person or by using personal identifying information of that person and thereby obtained goods, money, property or services (or used a credit card of that person) in an aggregate amount that exceeded five hundred dollars; (5) Criminal Possession of Stolen Property in the Fourth Degree under counts nineteen through twenty-seven requires proof beyond a reasonable doubts thatDefendants knowingly possessed stolen property (a credit card or credit card number) with the intent to benefit themselves or another person other than an owner of such property, or to impede the recovery thereof; (6) Grand Larceny in the Fourth Degree under count twenty-eight requires proof beyond a reasonable doubt that Defendants wrongfully took, obtained, or withheld property valued at over one thousand dollars, and that they did so with the intent to deprive another of the property or to appropriate the property to themselves or a third person; and (7) Petit Larceny under count twenty-nine requires proof beyond a reasonable doubt that Defendants wrongfully took, obtained, or withheld property, and that they did so with the intent to deprive another of the property or to appropriate the property to themselves or a third person.

The larceny offenses for which Defendants were convicted merely require the wrongful taking of property, whereas the charges of which the jury acquitted Defendants — Count one (assuming the identity of another person), Counts two through seven (assuming the identity of another person), Counts eight through sixteen (that Defendants uttered or possessed a forged instrument, namely a credit card), and Counts nineteen through twenty-seven (that Defendants knowingly possessed stolen property, namely a credit card or a credit card number) — all require, in one way or another, that the prosecution demonstrate beyond a reasonable doubt, the method or manner employed by the Defendants to carry out the larceny. Based upon the Court's charge, the jury could find that Defendants stole clothing from the department stores and yet, that they were not aware of Co-defendant Diasseny's scheme, or that, even if they were, they did not participate in the identity theft and the possession and utterance of the forged credit cards. As a result, the jury's acquittal of Defendants on the charges relating to identify theft and possession and utterance of a forged instrument does not conflict with the convictions for larceny. Thus, there is no basis for determining that the verdicts are repugnant absent any overlap between the essential elements of the crimes for which Defendants were acquitted and those for which they were convicted. Mohammad, 17 NY3d at 539.

While Defendants argue that, given the People's theory of the case, it was wholly illogical for the jury to find Defendants guilty of stealing property, but not guilty of the very method by which the stolen goods were acquired, that alone does not undermine the verdicts as a matter of law. Id. at 540. The issue before this Court is whether the verdicts are legally repugnant, not whether they are factually repugnant. Mohammad, 17 NY3d at 545. As explained in both Tucker and Mohammad, "[S]heer conjecture about what actually occurred in the minds of the jurors during deliberations is the reason why our precedent precludes judges from intrud[ing] into the jury's deliberative process' and requires repugnancy to be analyzed from a theoretical perspective." Id. at 544, citing Tucker, [*4]55 NY2d at7. Theoretically, the jury could have found that there existed proof beyond a reasonable doubt that Defendants intentionally stole property from Bloomingdale's and Barney's but, that there was a lack of proof that Defendants knowingly and intentionally participated in the identity theft or forgery schemes. This is because the crimes for which Defendants were acquitted do not share those essential elements with the crimes for which they were convicted, and therefore, in no way negate Defendants' guilt as to Grand Larceny in the Fourth Degree and Petit Larceny. Id. at 542.

For these reasons, this Court finds that the jury's verdicts are not repugnant, and denies Defendants' motions to set aside the verdicts.

B.Legal Sufficiency Claim

The standard of review for a legal insufficiency claim is "whether there is any valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the [fact-finder] on the basis of the evidence at trial." People v. Mateo, 2 NY3d 383 (2004), quoting People v. Bleakley, 69 NY2d 490, 495 (1987); see Danielson, 9 NY3d at 348. In making this assessment, a reviewing court must view all the evidence in the light most favorable to the People. Mateo, 2 NY3d at 409, citing People v. Cabey, 85 NY2d 417, 420 (1995).

Analyzed under this criteria, it is clear that the evidence was sufficient to sustain the jury's verdicts convicting Defendants of Grand Larceny in the Fourth Degree and Petit Larceny. As previously recited, both crimes require proof beyond a reasonable doubt that Defendants "wrongfully took, withheld or obtained property and they did so with the intent to deprive another of that property or to appropriate the property to themselves or a third person." Penal Law §§ 155.30(1) and 155.25. Grand Larceny in the Fourth Degree specifically requires that the property be valued in excess of one thousand dollars. Penal Law § 155.30(1). Under the law of accomplice liability, even if Defendants were not the principal actors in the commission of the thefts, they can still be held criminally liable if they acted with the same mental culpability, i.e., intent, required for the commission of the crime. See Penal Law § 20.00; see also People v. Adams, 296 AD2d 418 (2d Dept. 2001).

With respect to the Bloomingdale's theft, two Bloomingdale's loss prevention employees testified that they observed Defendants quickly and randomly select expensive merchandise, which they then placed on a cash register counter for Mr. Diasseny to purchase. They further testified that Defendants and the fourth unapprehended male stood at or near the cash register while Co-defendant Diasseny presented at least five different credit cards to complete the purchases totaling over three thousand dollars. This testimony was corroborated by the Bloomingdale's surveillance video, which showed that although it was Co-defendant Diasseny who tendered the credit cards, all four men entered, shopped, interacted and left as a group. Further, each man carried at least one of the fraudulent purchases at one time or another. Viewing the evidence in the light most favorable to the People, the logical inference is that all four men were working together. Thus, the jury could have reasonably found that the elements of Grand Larceny in the Fourth Degree were proven beyond a reasonable doubt. See e.g., People v. Shabazz, 264 AD2d 669 (1st Dept. 1999).

As to the Barney's theft, Police Officer Kremer testified that when Defendants entered Barney's and proceeded to the men's shoe department, he observed them looking at and trying on several different pairs of shoes. He then observed Mr. Diasseny purchase a pair of shoes with a forged credit card and a forged driver's license while Defendants and the fourth unapprehended male stood near him. Police Officer Kremer's testimony was also corroborated by Barney's video surveillance, which again showed all four men shopping and interacting as a group. Based upon this [*5]evidence, a reasonable inference can be drawn that Defendants were intentionally participating in a theft of merchandise from Barney's, which was almost identical in nature to their theft at Bloomingdale's. Accordingly, there was ample legally sufficient evidence to support Defendants' convictions for Petit Larceny. Compare People v. Hazel, 26 AD3d 191, 192 (1st Dept. 2006).

Moreover, Defendants' claim that the jury's decision to acquit them of the vast majority of the charges indicates a lack of evidence is without merit. It is well settled that, while a "reviewing court may consider a jury's acquittal on one count in reviewing the record to determine if a factually inconsistent conviction on another count is supported by legally sufficient evidence . . . it does not follow that such factual inconsistency in the verdict renders the record evidence legally insufficient to support the conviction." People v. Abraham, 22 NY3d 140, 147 (2013); see Rayam, 94 NY2d at 563. "Put another way, an acquittal is not a preclusive finding of any fact, in the same trial, that could have underlain the jury's determination." Abraham, 22 NY3d at 147. The fact that the jury rejected the People's theory that Defendants knowingly and intentionally committed identity theft and possessed and uttered forged credit cards, does not amount to a preclusive finding of fact that there was insufficient legal evidence to support the theory that Defendants intentionally stole property from Bloomingdale's and Barney's. There was ample evidence to support this theory and therefore, when viewed in the light most favorable to the People, a rational jury could find Defendants guilty of Grand Larceny in the Fourth Degree and Petit Larceny.

Accordingly, Defendants' CPL § 330.30 motions are hereby denied.

The above constitutes the decision and order of this Court.

Dated:December, 18, 20014

New York, New York

_________________________________

Juan M. Merchan

Judge of the Court of Claims

Acting Justice - Supreme Court

Footnotes

Footnote 1:Co-Defendant Moussa Diasseny pled guilty to Identity Theft in the First Degree in violation of Penal Law § 190.80(1) and Grand Larceny in the Fourth Degree in violation of Penal Law § 155.30(1), and received an indeterminate prison sentence of two to four years. Count seventeen charged Diasseny individually with Criminal Possession of a Forged Instrument in the Second Degree in violation of Penal Law § 170.25.