You are here: / Criminal Law
,

Grand Larceny 4th and Criminal Possession of Stolen Property 4th, as Those Statutes Relate to Credit/Debit Cards, Require the Theft and Possession of the Physical Card Itself, Not Merely the Unauthorized Use of the Credit/Debit Card Number—Other Offenses in the Penal Law Criminalize the Unauthorized Use of Credit/Debit Card Numbers

The Second Department, in a full-fledged opinion by Justice Balkin, determined that the crimes of grand larceny (4th degree) and criminal possession of stolen property (4th degree), as they relate to credit/debit cards, require the theft and possession of the physical card, not simply the use of the card number to make a purchase.  [The 1st Department recently reached the opposite conclusion.]  Here the juvenile (Luis) used his grandfather’s debit card number to purchase sneakers.  The Second Department noted that there are provisions of the penal law which criminalize the unauthorized use of credit/debit card numbers (without physical possession of the card), but those crimes were not charged here:

…[G]iven the text of the provisions at issue, the context of the law and its development over the years, we agree with Luis and the Presentment Agency that “debit card” as used in Penal Law §§ 155.30(4) and 165.45(2) means the physical card, not the intangible account information associated with it. We also agree that, at bottom, this case involves errors made when the petition was drafted. Luis’s acts undoubtedly violated provisions of the Penal Law, but not the provisions charged in the petition.

A person who appropriates account information is not immune from punishment. The legislature has enacted laws to protect account information, in addition to the laws relating to the cards themselves. Specifically, in chapter 619 of the Laws of 2002, the legislature amended or added sections to various statutes in order to address the problem of people who engage in identity theft or use other people’s personal information without authorization. That legislation added the crimes of identity theft in the third, second, and first degrees (Penal Law §§ 190.78, 190.79, and 190.80), as well as unlawful possession of personal identification information in the third, second, and first degrees (Penal Law §§ 190.81, 190.82, and 190.83). Later, the legislature added “aggravated identity theft” (Penal Law § 190.80-a; see L 2008, ch 226, § 2). These provisions, similar to the provisions at issue in this case, make the criminal possession of account information a completed crime; no proof is required that the information was actually used.

One of the crimes added in 2002, unlawful possession of personal identification information in the third degree (Penal Law § 190.81), directly proscribes what Luis did in this case when he used his grandfather’s debit card number, without permission, to buy sneakers * * *:

Thus, just as the legislature added credit cards to the penal provisions of the law when the use of credit cards became widespread, and added debit cards when the use of debit cards became widespread, it also added provisions related to the unauthorized possession of the intangible account information when technology demanded.

We also note that crimes relating to the theft or possession of cards or account information are distinct from the crimes committed when the cards or account information are subsequently misused; the subsequent misuse is an additional crime, distinct from the taking of the card or the obtaining of the numbers … . Matter of Luis C, 2014 NY Slip Op 08428, 2nd Dept 12-3-14

 

,

Trial Court Abused Its Discretion When It Disqualified Defense Counsel Over Defendant’s Objection on Conflict of Interest Grounds—The Fact that a Co-Defendant Had Been Represented by Another Attorney from the New York County Defender Services (NYCDS) Did Not Create a Conflict for Defendant’s NYCDS Attorney—Defendant’s Attorney Did Not Have Access to Any Information Provided by the Co-Defendant (Who Had Already Pled Out)—Client Confidences Are Not Generally Shared by Attorneys Within a Large Institution Like the NYCDS, As They Might Be Within a Private Law Firm

The First Department, in a full-fledged opinion by Justice Kapnick, over a dissent, determined that the fact that a co-defendant (Stephens) had been represented by a New York County Defender Services (NYCDS) attorney did not create a conflict requiring the disqualification of defendant's trial attorney (Fisher), who also worked for the NYCDS.  The court noted that Fisher was not privy to any confidences of Stephens (who had pled out shortly after arraignment) and there was little danger attorneys within a large institution like the NYCDS would share their clients' confidential information.  Therefore Fisher could effectively cross-examine Stephens should he be called to testify (the People did not intend to call Stephens). The defendant did not want Fisher disqualified and was willing to waive any conflict:

As both the United States Supreme Court and the Court of Appeals have explained, the Sixth Amendment encompasses a right to select and be represented by one's preferred counsel. However, that right is not absolute …, and it must be balanced with the right to effective assistance of counsel … . Thus, trial courts are given “substantial latitude in refusing waivers of conflicts of interests not only in those rare cases where an actual conflict may be demonstrated before trial, but in the more common cases where a potential for conflict exists which may or may not burgeon into an actual conflict as the trial progresses” … . …

Here … defendant not only challenges the trial court's refusal to accept his waiver of the potential conflict of interest, but also questions whether there was even a potential conflict of interest, in the first instance, where Fisher, who is a staff attorney at an institutional defense organization, never personally represented Stephens. It is crucial to recognize that here, unlike in other right to counsel cases, the proper initial inquiry is not whether defendant's waiver should have been accepted, but whether there was even a conflict or potential conflict of interest to waive in the first place. The court need only reach the issue of whether the waiver was properly accepted or denied after it has been established that there was a conflict or potential conflict of interest to waive. I find that on this record, no conflict or potential conflict of interest existed. * * *

Here, defendant and Stephens were arrested in connection with the same incident, but Stephens's case was already concluded by the time of Fisher's disqualification and, again, there was no evidence or suggestion that information concerning Stephens was ever shared with Fisher. Indeed, Fisher acknowledged that he would be barred from viewing his office's file on Stephens or using the address on file to try to locate Stephens; similarly no other attorney would have had access to NYCDS's file either. Thus … it cannot be said that the prior representation of Stephens by the same public defense organization created a potential conflict of interest. Although this Court is aware that the trial court's “discretion is especially broad” when balancing the right to counsel of a criminal defendant's choosing and the right to effective assistance of counsel free of conflicts … , under the specific circumstances here, we find that the trial court abused its discretion in disqualifying defendant's counsel. People v Watson, 2014 NY Slip Op 08383, 1st Dept 12-2-14


 

,

Criteria for Presentation of Defense Expert Re: the Accuracy of Eyewitness Testimony Explained (Criteria Not Met Here)

In finding that the defendant’s request to present expert evidence on the accuracy of eyewitness testimony was properly denied, the Second Department explained the relevant criteria:

Where a case “turns on the accuracy of eyewitness identifications and there is little or no corroborating evidence connecting the defendant to the crime, it is an abuse of discretion for a trial court to exclude expert testimony on the reliability of eyewitness identifications if that testimony is (1) relevant to the witness’s identification of defendant, (2) based on principles that are generally accepted within the relevant scientific community, (3) proffered by a qualified expert and (4) on a topic beyond the ken of the average juror” … . Here, however, there was sufficient corroborating evidence connecting the defendant to the crimes to obviate the need for expert testimony * * *.  People v Granger, 2014 NY Slip Op 08349, 2nd Dept 11-26-14

 

, ,

Mistrial Declaration Over Defendant’s Objection Was “Manifestly Necessary”—Double Jeopardy Prohibition Not Triggered

The Second Department determined the trial judge had no choice but to declare a mistrial when defense counsel could not proceed because of a conflict and new counsel needed a two-month adjournment.  Because the mistrial, granted over defendant’s objection, was “manifestly necessary” the double jeopardy prohibition of a second trial was not triggered:

The double jeopardy clauses of the New York State and United States Constitutions protect an accused from multiple prosecutions for the same offense . “In a jury trial, once the jury is empaneled and sworn, jeopardy attaches, and the defendant has a valued right to have his trial completed by a particular tribunal'” … .

When a mistrial is granted over the defendant’s objection or without the defendant’s consent, a retrial is precluded unless ” there was manifest necessity for the mistrial or the ends of public justice would be defeated'” … . “Manifest necessity” means a ” high degree of necessity'” based on reasons that are ” actual and substantial'” … . Moreover, before declaring a mistrial, a court must explore all appropriate alternatives and must provide a sufficient basis in the record for resorting to this “drastic measure” …  . Matter of Roey v Lopresto, 2014 NY Slip Op 08340, 2nd Dept 11-26-14

 

, ,

Retroactive Application of New Regulations Affecting the Revocation of Driver’s Licenses for Alcohol- and Drug-Related Convictions or Incidents Okay—No Vested Right Re: License to Drive

The Third Department determined the new regulations concerning the effect of alcohol- or drug-related convictions or incidents can be applied retroactively because they do not affect a vested right:

“Retroactive statutes are those which impair vested rights or alter past transactions or considerations” … . Here, however, petitioner’s driver’s license is not generally viewed as a vested right, but merely a personal privilege subject to reasonable restrictions and revocation by respondent under her discretionary powers (see Vehicle and Traffic Law §§ 510 [c]; 1192 [2]…). Thus, respondent remained free to apply her most recent regulations when exercising her discretion in deciding whether to grant or deny petitioner’s application for relicensing. This is especially so in light of the rational, seven-month moratorium placed on all similarly-situated applicants for relicensing — i.e., persons with three or more alcohol-related driving convictions (see NY Reg, Mar. 13, 2013 at 46…). Furthermore, inasmuch as the revised regulations operated only to nominally change the effect of petitioner’s past acts on his future eligibility to obtain a driver’s license and was not imposed as punishment but, rather, to promote public safety, respondent’s application of 15 NYCRR 136.5 (b) (2) was proper under these circumstances (see … State Administrative Procedure Act § 202 [6]). Matter of Scism v Fiala, 2014 NY Slip Op 08283, 3rd Dept 11-26-14

 

, ,

Proper Jury Instructions in False Imprisonment Case Based Upon Detention During the Execution of a Search Warrant Explained

The Second Department set aside the verdict and ordered a new trial on liability and damages because the jury was not properly instructed.  The plaintiff was detained at gunpoint while the police executed a search warrant based upon (apparently wrong) information provided by a confidential informant. The issues which should have been presented to the jury were whether the presumption of probable cause for the search warrant was rebutted and whether the “limited authority” to detain during a search was exceeded:

The Supreme Court erred when it instructed the jury to, in effect, apply the Aguilar-Spinelli test to determine the validity of the search warrant. Under the Aguilar-Spinelli rule, as applied in a criminal prosecution, where probable cause is predicated in whole or in part upon the hearsay statements of an informant, it must be demonstrated that the informant is reliable and had a sufficient basis for his or her knowledge … . By contrast, in a trial on the issue of liability for false imprisonment, there is a presumption of probable cause for the detention which the plaintiff must rebut with evidence that the warrant was procured based upon the false or unsubstantiated statements of a police officer … .* * *

The Supreme Court should have instructed the jury to determine whether the plaintiffs rebutted the presumption of probable cause by establishing that the NYPD presented “false or unsubstantiated statements” to the Criminal Court Judge to procure the issuance of the warrant … . * * *

We further note that police officers executing a search warrant have “limited authority to detain the occupants of the premises while a proper search is conducted” …, and are “privileged to use reasonable force to effectuate the detention of the occupants of the place to be searched” … . Accordingly, if warranted by the evidence presented at the new trial, the Supreme Court should direct the jury to determine, in the context of evaluating whether [plaintiff’s] confinement was privileged, whether the police officers, even if they possessed probable cause to enter the apartment initially, exceeded the scope of their limited authority to detain the occupants of the apartment… . Ali v City of New York, 2014 NY Slip Op 08310, 2nd Dept 11-26-14

 

,

Verdict May Not Be Set Aside Pursuant to Criminal Procedure Law 330.30 On a (Waivable) Ground Not Preserved by Objection at Trial

The Second Department determined Supreme Court should not have set aside the verdict pursuant to a CPL 330.30 motion on a ground which was not preserved by an objection.  Supreme Court set aside the assault second conviction on the ground that the indictment, which charged assault first, was improperly amended during trial to assault second.  Because the defendant did not object to the amendment, the issue could not be the basis for setting aside the verdict pursuant to CPL 330.30:

In considering a motion to set aside or modify a verdict pursuant to CPL 330.30(1), a trial court may only consider questions of law, not fact … . Moreover, a trial court may only consider claims of legal error under CPL 330.30(1) where those claims are properly preserved for appellate review … .

Contrary to the Supreme Court’s determination, the alleged amendment of the indictment was not a nonwaivable defect, and the defendant was required to make a timely objection at trial to preserve, for the Supreme Court’s consideration, a claim pursuant to CPL 330.30(1) that the indictment was impermissibly amended … . As the defendant failed to object at trial, he “waived” any challenge to the reduction of the count alleging assault in the first degree …, and the Supreme Court was without authority to set aside the verdict on that ground … . People v Davidson, 2014 NY Slip Op 08346, 2nd Dept 11-26-14

 

,

Proof Requirements for Constructive Possession of Contraband Explained

The Third Department explained the criteria for constructive possession.  The fact that others might have access to the contraband does not disprove constructive possession, contraband can be possessed jointly with others:

“Where, as here, the People proceed upon the theory of constructive possession, they bear the burden of establishing that defendant exercised dominion and control over the contraband or the area where the contraband was found”… . Such possession may be shown through direct or circumstantial evidence, and does not require proof that no one else had access to the contraband or the premises … . While mere presence in the same location where contraband is found does not prove constructive possession …, the evidence here established that defendant–who was wearing only boxer shorts when he was found and identified one of the bedrooms where contraband was found as the one where he kept his clothes and belongings–was not merely present in the residence by happenstance at the time of the search, but lived there. When found, he was lying in close proximity to the laundry basket that contained the disassembled weapon, as though he had just placed it there. Further, shortly before the search, he had been seen in physical possession of a weapon by witnesses who identified him as the individual who fired a black handgun in the direction of a vehicle, and, later on the day of the shooting, another witness saw him holding a black semiautomatic pistol. Accordingly, the evidence went beyond defendant’s mere presence in the residence at the time of the search and established “a particular set of circumstances from which a jury could infer possession” of the contraband … . The fact that some of the contraband was found in defendant’s brother’s bedroom and other parts of the house to which family members also had access does not preclude a finding of constructive possession, as such possession may be joint, and all of the items were “readily accessible and available” to defendant… . People v McGough, 2014 NY Slip Op 08269, 3rd Dept 11-26-14

 

,

Defendant’s Fourth Amendment Rights Violated When Officer Opened an Envelope Containing Defendant’s Personal Belongings at the Hospital Where Defendant Was Being Treated—The Fact that the Officer Thought Defendant Was a Crime Victim at the Time Does Not Matter—The Personal Belongings, Which Included Evidence of a Robbery, Should Have Been Suppressed

The Second Department determined the contents of an envelope containing defendant’s personal belongings, which included evidence of a robbery of which defendant was convicted, should have been suppressed.  The defendant was in the hospital when the police officer asked for identification.  The defendant indicated his belongings had been taken by the hospital.  The officer then retrieved the envelope from the hospital security office and opened it.  The Second Department determined that the fact that the officer thought the defendant was a crime victim (he had been stabbed) at the time he opened the envelope did not change the fact that the defendant’s fourth amendment rights were thereby violated:

“On a motion by a defendant to suppress physical evidence, the People have the burden of going forward to show the legality of the police conduct in the first instance” … . The People failed to meet their burden in this instance.

Initially, we note that the defendant had a legitimate expectation of privacy in his personal belongings, notwithstanding the fact that he was a hospital patient and his belongings were being temporarily stored in the hospital’s security office … . In addition, the fact that the officer perceived the defendant to be a victim rather than a suspect did not strip the defendant of Fourth Amendment protection … . People v Alston, 2014 NY Slip Op 08344, 2nd Dept 11-26-14

 

Photo Array Unduly Suggestive—Proof Burdens Explained

The Third Department determined a photo array was unduly suggestive because the nature of defendant’s picture was significantly different from the other photos:

Initially, a pretrial identification that is unduly suggestive violates due process and is therefore inadmissible against the defendant … . In this regard, a photo array is unduly suggestive if it “depicts a unique characteristic which draws the viewer’s attention so as to indicate that the police have selected a particular individual” … . “While the People have the initial burden of going forward to establish the reasonableness of the police conduct and the lack of any undue suggestiveness in a pretrial identification procedure, it is the defendant who bears the ultimate burden of proving that the procedure was unduly suggestive” … . Where suggestiveness is shown, it is the People’s burden to demonstrate the existence of an independent source by clear and convincing evidence … .

Finding that the People met their initial burden to establish that the police conduct was reasonable and their procedure was not unduly suggestive, we turn to defendant’s ultimate burden. … The array depicts six individuals of equivalent age and ethnicity who are reasonably similar in appearance. However, we nonetheless find the array to be unduly suggestive to the extent that defendant’s photo draws the viewer’s immediate attention. Specifically, while the other five photos depict individuals from the shoulders up with the upper portion of their photos consisting of nothing more than a blank, gray background, defendant is shown from the chest up with the top of his head reaching to the very top of the photo. Thus, defendant’s face occupies the space that, in all of the other photos, is bare. In our view, this difference cannot be deemed minor and impermissibly “create[d] a substantial likelihood that the defendant would be singled out for identification” … . Thus, County Court improperly held that the photo array was not unduly suggestive. People v Smith, 2014 NY Slip Op 08268, 3rd Dept 11-26-14

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy