PEOPLE v. BROOKS (2019)

Judgment, Supreme Court, New York County (Ellen I. Biben, J.), rendered October 24, 2016, convicting defendant, after a jury trial, of identity theft in the first degree (two counts) and grand larceny in the third degree, and sentencing him to concurrent terms of 11/313 to 4 years, unanimously affirmed.

Defendant did not preserve his argument that assumption of a corporation's identity cannot constitute identity theft, and we decline to review it in the interest of justice.  As an alternative holding, we reject it on the merits.  The corporation from which defendant stole by making unauthorized online transfers of funds to his personal accounts qualified as a “person” within the meaning of Penal Law § 10.00(7) (see People v. Assi, 14 N.Y.3d 335, 340–341, 902 N.Y.S.2d 6, 928 N.E.2d 388 [2010] ).  The mere fact that Penal Law § 190.80 employs gendered pronouns (he or she) in describing the conduct that a “person” must engage in to commit identity theft does not compel the conclusion that the statute restricts either the class of “persons” who may commit the crime, or may be victims of it, to individuals rather than corporations.  Nor do any of defendant's other arguments regarding statutory language or legislative history warrant such a conclusion.

Defendant's legal sufficiency claim regarding the grand larceny convictions is also unpreserved, and we decline to review it in the interest of justice.  As an alternative holding, we reject it on the merits.  We also find that the verdict was not against the weight of the evidence (see People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ).  The evidence supports the conclusion that defendant's thefts “involved a unitary fraudulent scheme, rather than separate and independent impulses” (People v. Miller, 145 A.D.3d 593, 594, 45 N.Y.S.3d 1 [1st Dept 2016], lv denied 29 N.Y.3d 950, 54 N.Y.S.3d 381, 76 N.E.3d 1084 [2017] ), and that the “thefts were committed pursuant to a single, ongoing intent” (id. at 594, 45 N.Y.S.3d 1), so that it was proper to aggregate the individual amounts to reach the statutory threshold.