The People, Appellant,v.Kerri Roberts, Respondent.

Brief

N.Y.March 22, 2018

APL-2016-00204 To be argued by PHILIP MORROW (15 Minutes Requested) Court of Appeals STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Appellant, - against - KERRI ROBERTS, Defendant-Respondent. B R I E F F O R A P P E L L A N T CYRUS R. VANCE, JR. District Attorney New York County Attorney for Respondent One Hogan Place New York, New York 10013 Telephone: (212) 335-9000 Facsimile: (212) 335-9288 ALICE WISEMAN PHILIP MORROW ASSISTANT DISTRICT ATTORNEYS Of Counsel MARCH 17, 2017 TABLE OF CONTENTS Page TABLE OF AUTHORITIES ............................................................................................. iii PRELIMINARY STATEMENT ......................................................................................... 1 QUESTIONS PRESENTED .............................................................................................. 2 JURISDICTIONAL STATEMENT ................................................................................... 2 INTRODUCTION................................................................................................................ 3 THE EVIDENCE AT TRIAL ............................................................................................ 6 The People’s Case ....................................................................................................... 6 The Defense Case ..................................................................................................... 13 Discussions Relating to the Identity Theft Charge and Defendant’s Motion for a Trial Order of Dismissal ....................................................................................... 13 THE APPELLATE DIVISION DECISION ................................................................. 17 RELEVANT STATUTES AND DECISIONS .............................................................. 17 POINT THE TRIAL EVIDENCE ESTABLISHED THAT DEFENDANT USED THE PERSONAL IDENTIFYING INFORMATION OF HIS VICTIM, AND, AS THE JURY CORRECTLY FOUND BASED UPON THE UNAMBIGUOUS LANGUAGE OF THE STATUTE, THEREBY ASSUMED HIS VICTIM’S IDENTITY .................................................................................................... 22 A. The identity theft statute unambiguously states that a person assumes the identity of another person by using that person’s personal identifying information ...................................................... 24 B. The legislative history and overall statutory scheme further support the conclusion that a defendant’s use of another person’s personal identifying information constitutes an assumption of that person’s identity ................................................................................. 34 C. The trial evidence here showed that, even under the Appellate Division’s interpretation of the statute, defendant assumed Kelly Fermoyle’s identity. His conviction should therefore be reinstated if this Court elects to hold that assumption of identity is an element separate from use of personal identifying information .. 44 CONCLUSION ................................................................................................................... 49 TABLE OF AUTHORITIES FEDERAL CASES Bifulco v. United States, 447 U.S. 381 (1980) ................................................................... 44 Lewis v. United States, 445 U.S. 55 (1980) ........................................................................ 32 Moskal v. United States, 498 U.S. 103 (1990) ................................................................... 44 Muscarello v. United States, 524 U.S. 125 (1998) ............................................................. 32 Robers v. United States, 134 S.Ct. 1854 (2014) ................................................................ 32 Shaw v. United States, 137 S.Ct. 462 (2016) ..................................................................... 33 Smith v. United States, 508 U.S. 223 (1993) ..................................................................... 32 United States v. Granderson, 511 U.S. 39 (1994) ............................................................. 44 STATE CASES Albany Law School v. New York State Office of Mental Retardation and Developmental Disabilities, 19 N.Y.3d 106 (2012) .................................................... 26 Gletzer v. Harris, 12 N.Y.3d 468 (2009)............................................................................ 39 Leader v. Maroney, Ponzini & Spencer, 97 N.Y.2d 95 (2001) ....................................... 29 Majewski v. Broadalbin-Perth Central School Dist., 91 N.Y.2d 577 (1998) ................................................................................................................................ 26 Matter of Wallach v. Town of Dryden, 23 N.Y.3d 728 (2014) ...................................... 34 People v. Abeel, 182 N.Y. 415 (1905) .......................................................................... 27, 43 People v. Barden, 117 A.D.3d 216 (1st Dep’t 2014), rev’d on other grounds, 27 N.Y.3d 550 (2016) ............................................................................... Passim People v. Boehlke, 137 A.D.3d 1321 (3rd Dep’t 2016) ................................................... 45 People v. Credel, 99 A.D.3d 541 (1st Dep’t 2012) ........................................................... 40 People v. Dethloff, 283 N.Y. 309 (1940) ........................................................................... 29 People v. Ditta, 52 N.Y.2d 657 (1981) .......................................................................... 26-27 People v. Essalek, 17 Misc.3d 835 (Crim. Ct. N.Y. County 2007) ................................. 37 People v. Golo, 26 N.Y.3d 358 (2015) .............................................................................. 26 People v. Green, 68 N.Y.2d 151 (1986)............................................................................. 31 People v. Hedgeman, 70 N.Y.2d 533 (1987) ..................................................................... 27 People v. Jones, 26 N.Y.3d 730 (2016) .............................................................................. 26 People v. Lewis, 23 N.Y.3d 179 (2014) ............................................................................. 40 People v. Napolitano, 282 A.D.2d 49 (1st Dep’t 2001) ................................................... 33 People v. Pabon, 28 N.Y.3d 147 (2016) ............................................................................ 26 People v. Roberts, 138 A.D.3d 461 (1st Dep’t 2016) .................................................. 5, 47 People v. Santi, 3 N.Y.3d 234 (2004) ................................................................................. 26 People v. Sigismundi, 89 N.Y.2d 587 (1997) .................................................................... 28 People v. Thompson, 26 N.Y.3d 678 (2016) .............................................................. 26, 34 People v. Versaggi, 83 N.Y.2d 123 (1994) .................................................................... 26-27 People v. Williams, 19 N.Y.3d 100 (2012)......................................................................... 26 People v. Wilson, 52 A.D.3d 239 (1st Dep’t 2008) .......................................................... 41 People v. Yuson, 133 A.D.3d 1221 (4th Dep’t 2015), lv. denied, 27 N.Y.3d 1157 (2016) ......................................................... 20-21, 23, 31-32 STATE STATUTES CPL 30.30 .............................................................................................................................. 28 CPL 450.90(1) ......................................................................................................................... 2 CPL 450.90(2)(a) ..................................................................................................................... 2 Mass. Gen. Laws Ch. 266, § 37E(b) ................................................................................... 29 McKinney’s Cons. Laws of N.Y., Book 1, Statutes § 95 ................................................. 39 North Carolina Gen. Statutes § 14-113.20(a) .................................................................... 30 Penal Law § 5.00 ................................................................................................................... 27 Penal Law § 110 .................................................................................................................... 25 Penal Law § 155.30(1) .......................................................................................................... 25 Penal Law § 165.45(2) ............................................................................................................ 4 Penal Law § 170.25 ............................................................................................................. 1, 4 Penal Law § 190.25(1) .......................................................................................................... 30 Penal Law § 190.25(2) .......................................................................................................... 30 Penal Law § 190.25(3) .......................................................................................................... 30 Penal Law § 190.25(4) .......................................................................................................... 30 Penal Law § 190.77 ............................................................................................................... 32 Penal Law § 190.77(1) .......................................................................................................... 18 Penal Law § 190.78(2) .......................................................................................................... 25 Penal Law § 190.78 ........................................................................................................... 2, 18 Penal Law § 190.79 ..................................................................................................... 2, 27, 33 Penal Law § 190.79(3) ..................................................................................... 1, 4, 18, 25, 38 Penal Law § 190.80 ............................................................................................... 2, 18, 21, 31 Penal Law § 190.80-a........................................................................................................ 2, 18 Penal Law § 190.81 .......................................................................................................... 37-38 Penal Law § 190.82 ............................................................................................................... 37 Penal Law § 190.83 ............................................................................................................... 37 Wisconsin Stat. Ann. § 943.201(2)...................................................................................... 30 OTHER AUTHORITIES 2002 Legislative Update from the NYS Assembly Consumer Affairs and Protection Committee, http://assembly.state.ny.us/comm/Affairs/20021120/ ........................................... 36 New York Senate Bill 2406 ................................................................................................. 43 N.Y. Bill Jacket, 2008 S.B. 8376 ......................................................................................... 36 Press Release, Governor Pataki Signs Identity Theft Legislation Into Law (Oct. 9, 2002) .......................................................................................................... 36 Sponsor’s Memorandum in Support, 2002 McKinney’s Session of Laws of N.Y. 2093. ....................................................................................................... 35, 38-39 State Senate Comm. On Investigations, Taxation, & Gov. Operations, Identity Theft: Is Your Identity Safe? (June 2000) ................................................ 34-35 COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Appellant, -against- KERRI ROBERTS, Defendant-Respondent. BRIEF FOR APPELLANT PRELIMINARY STATEMENT By permission of the Honorable Eugene F. Pigott, granted November 1, 2016, the People appeal from an April 7, 2016 order of the Appellate Division, First Department. That order unanimously modified a June 7, 2013 judgment of the Supreme Court, New York County (Roger S. Hayes, J.), convicting defendant, after a jury trial, of two counts of Criminal Possession of a Forged Instrument in the Second Degree (Penal Law § 170.25) and one count of Identity Theft in the Second Degree (Penal Law § 190.79[3]). Defendant was sentenced, as a second felony offender, to concurrent, indeterminate terms of three to six years on the forged-instrument counts and two to four years on the identity-theft count. The Appellate Division vacated defendant’s conviction for second-degree identity theft and otherwise affirmed the 2 conviction. Defendant served his sentence and was released to parole, but he is currently incarcerated pursuant to another conviction. QUESTIONS PRESENTED 1. To secure a conviction under the identity theft statutes, the People are required to prove that a defendant “knowingly and with the intent to defraud assume[d] the identity of another person by presenting himself or herself as that other person, or by acting as that other person or by using personal identifying information of that other person[.]” Penal Law §§ 190.78, 190.79, 190.80, 190.80-a. Based upon that language, does a defendant assume the identity of another person merely by using that person’s personal identifying information, even if he has not presented himself as the other person or acted as the other person? The trial court answered that question in the affirmative; the Appellate Division answered it in the negative. 2. If use of another person’s personal identifying information and assumption of that person’s identity are separate elements of the offense of identity theft, was defendant’s use of Fermoyle’s American Express account number an implicit assumption of her identity? The Appellate Division answered that question in the negative. JURISDICTIONAL STATEMENT This appeal is authorized by CPL 450.90(1) and (2)(a). The order of the Appellate Division, First Department modified the judgment of conviction and was therefore partially adverse to the appellant. The Appellate Division modified the 3 judgment “on the law,” and the question raised is fully preserved for this Court’s review. At trial, defense counsel moved to dismiss the identity theft charge at trial on the ground that defendant had pretended to be someone other than the person whose personal identifying information he had used, and the judge denied the motion. (See A495–98 [Motions: 490–93, 497]).1 INTRODUCTION On April 27, 2011, at a Champs Sports store in Times Square in Manhattan, defendant attempted to purchase more than $1,000 worth of merchandise using a counterfeit American Express card imprinted with the American Express account number of Kelly Fermoyle and the name “Craig Jonathan.” Because there was no information encoded on the card’s magnetic strip, the credit card machine would not read the card when defendant swiped it. Defendant insisted that the card belonged to him and showed store employees a New Jersey driver’s license bearing his photograph and the name “Craig Jonathan.” Employees refused defendant’s repeated requests to complete the purchase by manually entering the credit card number into the system, and the store manager examined the security features on defendant’s card and concluded that it was counterfeit. When the manager asked defendant to leave the store, defendant became angry and continued to insist that the employees complete the transaction by manually entering the credit card number. The manager 1 Numerical citations preceded by “A” are to the appendix for the appellant. 4 summoned uniformed police officers, who stopped defendant as he tried to flee and arrested him following a brief investigation. Inside defendant’s wallet, the police found a piece of paper bearing the American Express account number and billing details for Kelly Fermoyle. The account number was the same number that was imprinted on the counterfeit American Express card defendant had tried to use in the store. The New Jersey driver’s license was also counterfeit; however, there was no actual person named “Craig Jonathan” in the records of the New Jersey Motor Vehicle Commission. By New York County Indictment Number 2159/2011, filed on May 11, 2011, a grand jury charged defendant with two counts of Criminal Possession of a Forged Instrument in the Second Degree (Penal Law § 170.25) and one count each of Criminal Possession of Stolen Property in the Fourth Degree (Penal Law § 165.45[2]) and Identity Theft in the Second Degree (Penal Law § 190.79[3]). On September 11, 2012, after suppression proceedings not at issue on this appeal, defendant proceeded to trial before the Honorable Roger S. Hayes and a jury. At the close of the evidence, defendant moved to dismiss the identity theft count, arguing that the statute required proof that he had used the personal identifying information of the person that he had pretended to be, and that he had pretended to be Craig Jonathan rather than Kelly Fermoyle. Justice Hayes denied defendant’s motion. On September 19, 2012, the jury convicted defendant as charged. Following the jury’s verdict, Justice Hayes 5 granted defendant’s motion to dismiss the Criminal Possession of Stolen Property count. On June 17, 2013, the court sentenced defendant as noted above. On appeal to the Appellate Division, First Department, defendant argued, as is relevant here, that his conviction for identity theft was based on legally insufficient evidence, and that the trial court’s identity-theft jury instruction was erroneous. On April 7, 2016, the Appellate Division vacated defendant’s identity theft conviction, dismissed that count of the indictment, and otherwise affirmed defendant’s conviction (A2 [People v. Roberts, 138 A.D.3d 461 (1st Dep’t 2016)]).2 Relying on its decision in People v. Barden, 117 A.D.3d 216, 225 (1st Dep’t 2014), rev’d on other grounds, 27 N.Y.3d 550 (2016), in which it had held that a conviction for identity theft required proof that a defendant “both used the victim’s personal identifying information and assumed the victim’s identity,” the Appellate Division concluded that the evidence underlying defendant’s identity theft conviction was legally insufficient (A4). The Appellate Division recognized that there was clear proof that defendant had used the victim’s personal identifying information. However, in the court’s view, the facts showed that defendant had “assumed the identity” of a fictitious person—Craig Jonathan—rather than the identity of the victim, Kelly Fermoyle (A4). The Appellate 2 Defendant further argued that the police had arrested him without probable cause; that the trial court should have suppressed a statement that he made after waiving his Miranda rights; and that the jury’s verdict was against the weight of the evidence. The Appellate Division rejected all of these claims (A2–5). By an order dated November 1, 2016, Judge Pigott denied defendant’s application for leave to appeal the claims decided adversely to him. 6 Division further concluded that the jury charge on identity theft was “defective in the same respect” (A4). The People sought leave to appeal that portion of the Appellate Division’s order that was adverse to them and, by an order entered November 1, 2016, Judge Pigott granted the People leave to appeal to this Court (A1). THE EVIDENCE AT TRIAL The People’s Case In April of 2011, GABRIEL ORTIZ was the general manager of Champs Sports, located in Times Square in Manhattan (Ortiz: A251–52). On April 27, 2011, at approximately 9:30 p.m., one of the store security guards drew Ortiz’s attention to what the store called a “red flag” situation: someone—in this case, defendant—was attempting to purchase a large amount of footwear. Store policy in such situations was for Ortiz to supervise the purchase to make sure everything was “legit” (Ortiz: A252–53, A286–87). Thus, Ortiz walked over to the registers, and told cashier TASHIRA OROSCO to double-check defendant’s identification and credit card because “it was a large purchase” (Orosco: A49–50, A81–82, A96; Ortiz: A253–54, A268, A302; People’s Exh. 6 [surveillance video of cash register area]). An associate brought over the merchandise that defendant had selected, which consisted of two baseball caps and eight pairs of sneakers in various children’s and adult sizes, with a total cost before tax of $1079.90. Orosco scanned the merchandise as usual (Orosco: A50, A54–59, A78–A81, A96, A99; Ortiz: A260; People’s Exhs. 3 [receipt showing items scanned by Orosco], 6 [surveillance video]). Meanwhile, 7 because Champs Sports had a “hookup” policy that encouraged its employees to sell matching clothes or hats to customers who were buying shoes, Ortiz took defendant to the “Nike table” and showed him some t-shirts, which defendant declined to buy (Ortiz: A271–73, A278–79, A296–99, A318; People’s Exh. 6 [surveillance video]). Afterwards, defendant approached the register, opened his wallet, and gave Orosco an American Express card in the name of “Craig E. Jonathan.” He also provided her with a New Jersey driver’s license in the same name, which bore defendant’s photograph (Orosco: A50–52, A85–86; Ortiz: A255–56; People’s Exhs. 1 [American Express card], 2 [New Jersey driver’s license], 6 [surveillance video]). Orosco looked at the credit card and license, then handed them back to defendant, and directed him to swipe the American Express card. However, when defendant did so, a red box appeared on Orosco’s screen to indicate that the card “couldn’t be read” (Orosco: A52–53, A86, A99; Ortiz: A255–56, 273, 309; People’s Exh. 6 [surveillance video]). Orosco told defendant that the credit card “wasn’t working,” and defendant responded that she should manually enter the card number (Orosco: A52–53, A99; Ortiz: A258, A311). However, for any transaction where a credit card number is manually entered, employees were required to obtain an approval code, and the company prohibited employees from manually entering credit card numbers for transactions worth over $500 (Ortiz: A324–25). Accordingly, either Orosco or Ortiz 8 told defendant that they would not manually enter the number (Orosco: A53, A100; Ortiz: A311). Defendant then handed the credit card and driver’s license to Orosco, who handed them to Ortiz (Orosco: A53, A100; Ortiz: A256, A311; People’s Exh. 6 [surveillance video]). When Ortiz looked at the card, it seemed like it “wasn’t a legit card” (Orosco: A89; Ortiz: A256–57; People’s Exh. 6 [surveillance video]). There was a “black light” at each cash register that was used to make credit card security features visible, and Ortiz put defendant’s card under the black light. He then told defendant that the card “is not going to go through” and he could not accept it (Orosco: A53, A90, A100; Ortiz: A256–57, A273–74, A31, A314; People’s Exh. 6 [surveillance video]). Defendant responded, “[W]hat the fuck you mean? This is my card” (Ortiz: A274). Defendant showed Ortiz a New Jersey driver’s license and said, “[T]his is my card, this is my ID, what [do] you mean[?]” (Ortiz: A274). He again asked Ortiz to manually enter the numbers on the card (Ortiz: A274–75). As defendant kept insisting that Ortiz manually enter the numbers, Ortiz noticed that another customer was paying with an American Express card (Ortiz: A274–75). Ortiz took the other customer’s card and compared it with defendant’s under the black light. He “saw discrepancies from one card to the other” (Ortiz: A257, A275, A311–14; People’s Exh. 6 [surveillance video]). Concluding that defendant’s card “wasn’t good,” Ortiz approached defendant, returned the card, and quietly said, “[Y]ou and I both know this card’s not good, you can’t use this card in 9 here so please leave” (Orosco: A54, A91, A102–03; Ortiz: A257–59, A276–77, A282– 86, A316–17; People’s Exhs. 6 [surveillance video], 7–10 [still photographs of defendant at the register with license and credit card in his hand]). Defendant cursed at Ortiz and argued with him, saying, “[H]ow you gonna tell me this isn’t my card, how you gonna tell me, I can go to the bank right now and take out money, this is my card” (Orosco: A54, A91; Ortiz: A259, A276, A317). Defendant “kind of gave [the card] back” to Ortiz and asked him multiple times to punch in the numbers manually (Ortiz: A259, A276, A317–18; People’s Exh. 6 [surveillance video]). Finally, Ortiz told defendant that if defendant did not leave the store, he would call the police (Ortiz: A259, A277). Defendant still refused to leave, so Ortiz told one of the security guards to get the police (Orosco: A60, A102–03; Ortiz: A277, A318). Ortiz then refused defendant’s request to return the card, telling him that he would give the police the card (Ortiz: A277–78). As defendant continued to argue with Ortiz, he “kept inching away to the front exit” that led onto Seventh Avenue (Orosco: A60, A103; People’s Exh. 6 [surveillance video]). Ortiz gave a “signal” to his security guards to “hold the door” (Ortiz: A260, 278; People’s Exh. 6 [surveillance video]). Meanwhile, uniformed Police Officers MATTHEW OETTING and JAMES HALL were stationed at a foot post on the same corner as Champs Sports (Oetting: A109–10, A132–35; Hall: A458, A466–67 469–71). At approximately 9:35 p.m., a Champs security guard flagged them down and told them that there was “a problem 10 inside the store” (Oetting: A111, A135; Hall: A458, A474). The officers followed the guard into the store, where defendant was standing near the cash register. The guard pointed at defendant and said that he was “the one” (Oetting: A111–12, A135–36; Hall: A458–59, A474–75). Defendant “t[ook] off” towards the store’s Seventh Avenue exit and “pushed” the security guard at the door (Orosco: A92–93; Oetting: A112, A135–36; Ortiz: A260–61, A319; Hall: A459, A474–75). Oetting and Hall ran after defendant and stopped him just past the exit (Oetting: A113, A137; Hall: A459– 60, A475). Because defendant had pushed the security guard and tried to flee, Oetting put defendant in handcuffs while they tried to figure out “what [was] going on” (Oetting: A113, A137; Hall: A459–60, A475). At that point, Ortiz came out of the store, gave Hall the New Jersey license and the American Express card that defendant had presented, and explained what had happened (Ortiz: A262, A320; Hall: A460–63; People’s Exhs. 1 [American Express card], 2 [driver’s license]). Hall accompanied Ortiz back into the store, where Ortiz showed him how defendant’s American Express card looked under the black light (Ortiz: A320; Hall: A462, A476–77).3 After Hall went back outside and told Oetting what he had learned, Oetting arrested and searched defendant. He found a piece of paper and a New York State 3 The following day, Oetting swiped defendant’s American Express card through a card reader, which indicated that there was “no information on the magnetic strip” (Oetting: A131). 11 identification card inside defendant’s wallet (Oetting: A115–16, A149; Hall: A463; People’s Exh. 11 [paper]). The piece of paper was a form on which was written an account number, an expiration date, a “CW2 number,” and the names of four different types of credit cards, with an “X” marked next to “AMEX” (Oetting: A117). Also written on the paper was “customer name Kelly Fermoyle” and a “billing address” in Williamsville, New York (Oetting: A117). The account number on the paper was the same as the number printed on the American Express card that defendant had presented in the store (Oetting: A118–19). Defendant’s picture was on the New York State identification card, which Oetting believed was legitimate (Oetting: A119–27). At approximately 1:50 a.m. on April 28, 2011, in the Midtown South Detective Squad interview room, Detective MARK GROGAN advised defendant of his Miranda rights. Defendant said that he understood each of those rights and agreed to speak with Grogan (Oetting: A128–29, A154–55, A162–70; Grogan: A360–78; People’s Exh. 18 [Miranda waiver form]). Defendant then told Grogan that he had gone to the Port Authority to “meet a man to get a fake ID.” Defendant gave the man $40 and the man left, returning about 15 minutes later with a fake ID and credit card (Oetting: A130, A156–57, A168). Defendant then went to Champs Sports “to try out the credit card to see if it worked,” although he “didn’t think it would actually work” (Oetting: A130, A156–57). Defendant refused to provide any information about who had given him the fake documents (Oetting: A130–31, A168). 12 ROBERT T. CURRAN, a manager of investigations in the global security department at American Express, testified as an expert in the identification of forged American Express credit cards (Curran: A380–83). Curran examined the American Express card that defendant attempted to use at the Champs Sports and determined that it was counterfeit (Curran: A384, A389, A392; People’s Exh. 1 [American Express card]). There were numerous discrepancies between defendant’s card and an authentic American Express card (Curran: A385–89). The account holder for the number on defendant’s credit card was KELLY FERMOYLE, and her account was active on April 27, 2011 (Fermoyle: A330–31; Curran: A389–91; People’s Exh. 14 [printout from American Express database]). On that date, Fermoyle’s American Express card was in her possession (Fermoyle: A330– 31). She did not give permission to defendant or anyone else to use her credit card number or to purchase $1,000 worth of merchandise at Champs Sports in New York City (Fermoyle: A331). Fermoyle did not know anyone named “Craig E. Jonathan” (Fermoyle: A335). The piece of paper recovered from defendant’s wallet was a photocopy of a document on which Fermoyle had written her American Express account information (Fermoyle: A332–33; People’s Exh. 11 [paper]). Fermoyle believed that, in connection with her work, she had likely provided that information to a charitable or business organization that she trusted (Fermoyle: A333–34). Defendant did not have permission or authority to possess the paper containing Fermoyle’s account information (Fermoyle: A333–34). 13 Defendant’s New Jersey driver’s license was also counterfeit (MICHAEL BOEHM, supervising investigator for New Jersey Motor Vehicle Commission: A337– 52; People’s Exhs. 2 [license], 19 [printout from commission records]). The New Jersey Motor Vehicle Commission had never issued a driver’s license to a person named “Craig E. Jonathan,” and there was no “living, breathing” person by that name in its records (Boehm: A351–53). The Defense Case Defendant did not present any evidence at trial. Discussions Relating to the Identity Theft Charge and Defendant’s Motion for a Trial Order of Dismissal The parties and the court discussed the identity theft charge on several occasions during the trial. During the first day of testimony, the prosecutor explained that it was the People’s theory that defendant committed identity theft by using Fermoyle’s personal identifying information in the form of her credit card number (A176–78). In particular, the prosecutor acknowledged that defendant “clearly wasn’t trying to say” that he was Fermoyle, but argued that he was “using the credit card number of Fermoyle and in doing that he was committing identity theft” (A178–79). The prosecutor acknowledged that defendant purported to be Craig E. Jonathan in the Champs Sports store, but stressed that defendant used the personal identifying information of “that other person, that is Kelly Fermoyle” (A179–80). The court 14 agreed that defendant “seem[ed] to be presenting himself as one person, but using the identification number of another” (A180). For his part, defense counsel suggested that there was a potential issue that he would raise in his motion for a trial order of dismissal, specifically that the language in the CJI charge indicated that a defendant had to use the personal identifying information of the person whose identity he was assuming and that the Penal Law defined a person to be a living human being (A179–80). After stressing that he had not researched the matter, the judge suggested that the statute was likely intended to cover the scenario presented in this case in that, “by presenting the card” on which there was a real person’s personal identifying information, defendant was “presenting himself as that person, regardless of the name on the card” (A181). The judge indicated that he would submit the charge to the jury unless the parties found some controlling authority to the contrary, but that he would likely reserve decision on any defense motion to dismiss to allow the parties to prepare written submissions on the topic if the jury convicted defendant on the identity theft count (A181). The next day, the parties returned to the identity theft issue. The prosecutor pointed out that the “statutory definition of assume the identity of another person is written in the disjunctive,” and that that definition indicated that a defendant could assume another person’s identity “by engaging in one of three types of behavior,” including using the other person’s personal identifying information (A228). Defense 15 counsel responded that he did not disagree with the prosecutor that identity theft could be committed by using personal identifying information (A228–29, A332). However, he said that he was still researching the issue of whether the “name on the card and the identifying information must belong to the same individual” (A229). The prosecutor provided the judge with some trial court decisions and one Appellate Division opinion in support of his position that a defendant could commit identity theft by using personal identifying information (A230–32). The judge said that he would review the prosecutor’s authority. Following a brief recess, the judge said that, based on the prosecutor’s authority, “[I]t seems like the fact that a person, for instance, uses one individual’s personal identification information and actually presents themselves as someone else other than that person doesn’t remove them from the purview of that statute” (A232–33). Towards the end of the People’s case, the attorneys advised the court that they had worked together to draft a proposed jury charge on the identity theft count (A435). The proposed instruction included only the “third prong[,] by using personal identifying information of that other person” (A436–37). The “only difference” between the positions of the parties was that the defense wanted the charge to state that defendant “assumed the identity of another person by using personal identifying information of that person,” rather than identifying Fermoyle by name, as the prosecutor had suggested (A437). Counsel suggested that there was a legal issue as to whether the statute required that the personal identifying information was “of the 16 person he was pretending to be,” and he submitted that defendant had “pretended” to be someone other than the person whose information he had used (A437–38). Counsel therefore argued that the court should not use Fermoyle’s name in the identity theft charge, notwithstanding the court’s suggestion that identifying the victim was “more restrictive to the People” (A438–39). The prosecutor submitted that it was appropriate for the court to name Fermoyle because, under the identity theft statute, “by using personal identifying information of that other person, you thereby assume the identity of that person” (A439–40). The judge agreed with the prosecutor and elected to use Fermoyle’s name in the charge (A440). Following the People’s case, defendant moved to dismiss the identity theft charge. In the interests of time, the court considered all of defendant’s prior arguments on this topic to be incorporated in the motion (A497–98). Counsel argued that defendant was “pretending” to be Craig Jonathan, and he noted that Jonathan was not a living person. Further, counsel claimed that, based on the statute’s use of the words “that person,” defendant could only have committed identity theft by using Jonathan’s personal identifying information (A495). Specifically noting that he had considered defendant’s argument regarding the word “that,” the judge denied defendant’s motion to dismiss the identity theft charge (A502). The jury subsequently convicted defendant of identity theft in the second degree (A608). 17 THE APPELLATE DIVISION DECISION As is pertinent here, a unanimous panel of the Appellate Division, First Department modified the judgment “on the law” by vacating defendant’s conviction for second-degree identity theft and dismissing that count of the indictment (A2). The Appellate Division noted that it had held in Barden, 117 A.D.3d at 216, that proof that a defendant used the victim’s personal identifying information was, by itself, insufficient to convict a defendant for identity theft (A4). Instead, the Appellate Division explained, the People were required to prove that a defendant both used the victim’s personal identifying information and assumed the victim’s identity (A4). Applying Barden to the facts of this case, the Appellate Division held that the evidence underlying defendant’s identity theft conviction was legally insufficient (A4). Although the Appellate Division determined that there was “clear proof” that defendant used the victim’s personal identifying information, it concluded that there was no proof that defendant had assumed the victim’s identity and that he had instead actually assumed the identity of a fictitious person (A4). The Appellate Division also concluded that the court’s jury charge on identity theft was “defective in the same respect” as the trial proof (A4). RELEVANT STATUTES AND DECISIONS As is pertinent here, a person commits identity theft in the second-degree when he “knowingly and with intent to defraud assumes the identity of another person by presenting himself or herself as that other person, or by acting as that other person or 18 by using personal identifying information of that other person, and thereby” commits or attempts to commit a felony. Penal Law § 190.79(3). Section 190.77(1) of the Penal Law defines “personal identifying information” to include a “credit card account number or code.” The other identity theft statutes, contained in Penal Law Sections 190.78, 190.80, and 190.80-a, also require proof that the defendant “assume[d] the identity of another person by presenting himself or herself as that other person, or by acting as that other person or by using personal identifying information of that other person.” In Barden, 117 A.D.3d at 216, the defendant directed a hotel to charge his expenses to another person’s credit card. Pursuant to an agreement between the cardholder and the hotel, Barden was permitted to charge a certain amount to the card during a single hotel stay and no more. Id. at 220–21. Due to errors on the hotel’s part and intentional misrepresentation by Barden of his authority to charge the card, the hotel billed the victim’s credit card for more than $10,000 in expenses incurred by Barden during subsequent stays at the hotel. Id. at 221–23. However, Barden used his own name in his dealings with the hotel, and the hotel employees were aware that the credit card he told them to charge did not belong to him. Id. at 228–29. Because Barden had unlawfully been making charges to the victim’s credit card account number, he was subsequently charged with, and convicted of, identity theft in the first degree, based on his use of the victim’s personal identifying information. Id. at 223. 19 On Barden’s appeal, the Appellate Division, First Department, considered whether, under the identity theft statute, the use of another person’s personal identifying information automatically constituted an assumption of the person’s identity. Barden, 117 A.D.3d at 224. In answering that question, the Appellate Division concluded that the identity theft statute was “facially ambiguous” and subject to two reasonable interpretations. Id. at 226. Specifically, the Appellate Division determined that the Legislature might have intended for the words that follow “assumes the identity of another person” to define that phrase, such that “committing one of the described acts would constitute an assumption of identity[.]” Id. On the other hand, the Legislature might have intended for the three methods listed in the body of the statute to illustrate “various means by which assumption of identity can, but does not necessarily, take place.” Id. (emphasis in original). Based on that purported ambiguity, the Appellate Division applied the rule of lenity and adopted the interpretation of the statute that was more favorable to defendant. Barden, 117 A.D.3d at 226–27. Thus, the Appellate Division held that to secure a conviction for identity theft, the People were required to prove beyond a reasonable doubt “not only that a defendant used another’s personal identifying information, but that he or she consequently assumed the identity of that person.” Id. at 220. Applying that principle in Barden, the Appellate Division found that the defendant had not “assumed the identity” of the credit card holder because the hotel 20 was “aware of” the “distinct identities” of the card user and card holder. 117 A.D.3d at 228. In discussing the statute, the Appellate Division noted that “presenting oneself as another,” by, for instance, saying that you are that person or signing his name, was the quintessential way to assume another’s identity. Id. at 227. However, the court recognized that, in a “typical credit card transaction,” such as “when a person offers a credit card to pay for a hotel stay or to purchase an item at a store, or enters the person’s credit card information to make an Internet purchase,” it is “implied that the person presenting or using the card is the cardholder, even if the person does not affirmatively present himself or herself as such.” Id. at 227–28 (emphasis in original). Thus, in most cases, the use of another person’s credit card will “necessarily constitute an implied assumption of that person’s identity,” thereby rendering the user liable for identity theft. Id. at 228. On the other hand, in the “rare case” when the person accepting the credit card “knows that the card user is, in fact, someone other than the cardholder,” the implication that the person presenting the card is the account holder falls away. Id. Since the hotel staff in Barden knew that the defendant was not the cardholder, the Appellate Division concluded that the defendant had not assumed the identity of the cardholder, despite his unauthorized use of the cardholder’s personal identifying information. Id. The Appellate Division, Fourth Department subsequently considered the same provision of the identity theft statue and disagreed with the interpretation set forth by the First Department in Barden. In People v. Yuson, 133 A.D.3d 1221, 1221 (4th 21 Dep’t 2015), lv. denied, 27 N.Y.3d 1157 (2016), the defendant was convicted of two counts of first-degree identity theft after he deposited two forged checks into his bank account. The People’s theory was that the defendant had assumed the identities of the drawers of the checks by using their personal identifying information. Id. at 1221–22. On appeal, the defendant relied on Barden to argue that his identity theft conviction was not supported by legally sufficient evidence because the People did not establish that he assumed another person’s identity. Yuson, 133 A.D.3d at 1221. The Fourth Department acknowledged that there was no evidence that the defendant had “presented himself as the victims or acted as those victims[.]” Id. However, declining to follow Barden, the Fourth Department affirmed the defendant’s conviction. Id. at 1222. It held that the identity theft statute is “unambiguous” and that it “defines the phrase ‘assumes the identity of another person’ by the phrase that immediately follows it, i.e., by, inter alia, using the personal identifying information of that other person.” Id. (quoting Penal Law § 190.80). Thus, because the People established that the defendant used the victims’ personal identifying information, the Fourth Department held that he “assumed their identities for purposes of the statute.” Yuson, 133 A.D.2d at 1222. 22 POINT THE TRIAL EVIDENCE ESTABLISHED THAT DEFENDANT USED THE PERSONAL IDENTIFYING INFORMATION OF HIS VICTIM, AND, AS THE JURY CORRECTLY FOUND BASED UPON THE UNAMBIGUOUS LANGUAGE OF THE STATUTE, THEREBY ASSUMED HIS VICTIM’S IDENTITY. At trial, the jury convicted defendant of second-degree identity theft based on his attempt to charge more than $1,000 worth of merchandise to Kelly Fermoyle’s American Express account number. On appeal, defendant relied on the Appellate Division, First Department’s prior decision in Barden, 117 A.D.3d at 216, in which that court found that use of the victim’s personal identifying information and assumption of the victim’s identity were separate elements of identity theft, both of which the People had to prove beyond a reasonable doubt. Specifically, defendant contended that the evidence was legally insufficient under Barden because it did not establish that, in addition to using Fermoyle’s personal identifying information, he assumed her identity. Instead, defendant claimed, the evidence showed that he assumed the identity of “Craig E. Jonathan,” which was the name on his counterfeit American Express card and driver’s license. The Appellate Division agreed with defendant, vacated his identity theft conviction, and dismissed that count of the indictment. The Appellate Division’s decision was error and defendant’s identity-theft conviction should be reinstated. Based upon the court’s charge, which tracked the 23 language of the identity theft statute and was consistent with the pattern jury instruction, the jury correctly determined that defendant assumed Fermoyle’s identity by using her American Express account number. The plain language of the statute provides that the use of personal identifying information—such as Kelly Fermoyle’s credit card number—constitutes an assumption of identity. As the Fourth Department recognized in Yuson, 133 A.D.3d at 1221–22, the identity theft statutes themselves define the phrase “assumes the identity of another person”: specifically, one assumes another person’s identity by either presenting oneself as that person, acting as that person, or using that person’s personal identifying information. The reading of the statute adopted in Yuson is supported by the legislative history and the statutory scheme that covers crimes involving the illegitimate use of personal identifying information. In light of the Legislature’s stated concern about the harms experienced by consumers whose personal identifying information is exploited by criminals, it is unlikely that the Legislature intended for the use of such information to be prosecuted in the same manner as its possession. Indeed, the construction of the statute adopted by the Appellate Division, First Department would potentially exempt from prosecution for identity theft a common class of criminal—those who use their victim’s credit card account number but employ their own name or an alias to avoid raising suspicion. Given the clear language of the statute and these indicators of the Legislature’s intent, it was inappropriate for the Appellate Division to resort to the rule of lenity. 24 Furthermore, even if this Court were to adopt the reading of the statute propounded by the Appellate Division in Barden, it should still find that the evidence at defendant’s trial was sufficient to establish his guilt of identity theft. As the Appellate Division recognized in Barden, in almost every case a person presenting a credit card to make a purchase implicitly assumes the cardholder’s identity, particularly where, as here, that person repeatedly insists that the card and the account number thereon were his. And, unlike the unusual situation in Barden, where all parties were aware that the credit card to which the defendant charged his hotel expenses belonged to someone other than the defendant, there was nothing in this case that negated defendant’s implicit assumption of Fermoyle’s identity. Accordingly, the First Department erred in finding the evidence of defendant’s guilt legally insufficient. A. The identity theft statute unambiguously states that a person assumes the identity of another person by using that person’s personal identifying information. The uncontroverted proof at trial showed that defendant presented a counterfeit American Express card imprinted with Kelly Fermoyle’s American Express account number as payment for more than $1,000 of merchandise. Moreover, defendant repeatedly urged store employees to manually enter Fermoyle’s account number into their system in order to complete the purchase after the credit card machine was unable to read the magnetic strip on defendant’s counterfeit card. In doing so, there can be no doubt that defendant acted knowingly and with intent to defraud; after all, it is difficult to conceive of how one might unwittingly acquire and 25 use a counterfeit credit card bearing someone else’s account number. Further, defendant’s attempt to obtain more than $1,000 of merchandise using the counterfeit card was plainly an attempt to commit fourth-degree grand larceny. See Penal Law §§ 110/155.30(1). Based on these facts, and in accordance with a jury charge that tracked the language of the statute and the pattern jury instructions, see (A579, A584; CJI2nd[NY] Penal Law § 190.78[2]), the jury convicted defendant of second-degree identity theft.4 In spite of these facts, the Appellate Division, First Department held that the evidence was legally insufficient to establish defendant’s guilt of identity theft because the People failed to show that defendant assumed Fermoyle’s identity. This conclusion was premised upon an interpretation of the identity theft statute, first set forth in Barden, 117 A.D.3d at 216, that it is at odds with the plain language of the statute. Specifically, the court found that the People were required to prove assumption of identity as an element separate from use of personal identifying information. In fact, however, it is readily apparent from the statutory text that the Legislature intended a defendant’s use of another person’s personal identifying 4 For charges of second-degree identity theft under Penal Law § 190.79(3), the CJI directs the court to refer to the charge for identity theft in the third degree under Penal Law § 190.78(2), which differs only in that it has an element the defendant’s commission of a class-A misdemeanor or higher level crime, rather than the commission or attempted commission of a felony. 26 information to constitute an assumption of that person’s identity within the meaning of the identity theft statutes. Of course, this Court has long recognized that its “primary consideration” when interpreting a statute is to “discern and give effect to the Legislature’s intention[.]” Albany Law School v. New York State Office of Mental Retardation and Developmental Disabilities, 19 N.Y.3d 106, 120 (2012); see also People v. Thompson, 26 N.Y.3d 678, 685 (2016); People v. Santi, 3 N.Y.3d 234, 243 (2004). “It is well established that since ‘the clearest indicator of legislative intent is the statutory text, the starting point in any case of interpretation must always be the language itself, giving effect to the plain meaning thereof[.]’” People v. Pabon, 28 N.Y.3d 147, 152 (2016) (quoting People v. Golo, 26 N.Y.3d 358, 361 [2015]); see also Majewski v. Broadalbin-Perth Central School Dist., 91 N.Y.2d 577, 583 (1998) (the text of the statute itself is the “clearest indicator of legislative intent”). When the language in a statute is “‘clear and unambiguous,’” this Court should construe it “‘so as to give effect to the plain meaning of the words used[.]’” People v. Jones, 26 N.Y.3d 730, 733 (2016) (quoting People v. Williams, 19 N.Y.3d 100, 103 [2012]). When criminal statutes are at issue, this state no longer follows the common law policy of strict construction. See People v. Ditta, 52 N.Y.2d 657, 660 (1981). Instead, the Legislature “expressly declared that the provisions of the Penal Law be construed ‘according to the fair import of their terms to promote justice and effect the objects of the law.’” People v. Versaggi, 83 N.Y.2d 123, 131 (1994) (quoting 27 Penal Law § 5.00). Thus, “[a]s with other statutory provisions, those contained in the Penal Law are generally to be construed so as to give effect to their most natural and obvious meaning[.]” People v. Hedgeman, 70 N.Y.2d 533, 537 (1987). This rule of statutory construction “does not justify the imposition of criminal sanctions for conduct that falls beyond the scope of the Penal Law,” but it does “authorize a court to dispense with strained interpretations of the statute.” Ditta, 52 N.Y.2d at 660 (internal citations omitted). Moreover, because the enactment of a criminal law “often ‘follow[s] in the [the] wake’ of the activity it attempts to penalize, courts should not legislate or nullify statutes by overstrict construction[.]” Versaggi, 83 N.Y.2d at 131 (quoting People v. Abeel, 182 N.Y. 415, 421 [1905]). Application of those principles here indicates that the Appellate Division, First Department misinterpreted the identity theft statute. First, based upon the clear and unambiguous language of the statutory text, it is plain that the Legislature intended a defendant’s use of another person’s personal identifying information to constitute an assumption of that person’s identity, regardless of whether he took any other steps to suggest that he was that person. The statute identifies three distinct ways by which an identity thief can assume his victim’s identity: “by presenting himself or herself as that other person, or by acting as that other person or by using personal identifying information of that other person.” Penal Law § 190.79. These three methods of identity assumption are separated by the disjunctive “or.” Consequently, under the words in the statute as they are commonly understood, a defendant assumes the 28 identity of another person whenever he engages in any of the three methods specified, including the use of that person’s personal identifying information. And, in particular, the statute plainly contemplates that a person can engage in identity theft by using the personal identifying information of another person without actually “presenting” himself as the other person or “acting” as that person. Cf. People v. Sigismundi, 89 N.Y.2d 587, 591 (1997) (CPL 30.30 was “drafted in the disjunctive and thus furnished discrete alternative methods for determining whether and when a defendant is ‘absent’”). Notably, the Legislature has provided no definition of what it means to “assume the identity” of another person except the definition provided in the specific identity theft statutes themselves: i.e., that one assumes the identity of another person by engaging in any of the three listed acts. That “assumes the identity” was not intended to be a separate element is clear from the fact that any common understanding of assuming another person’s identity would be encompassed by “presenting” oneself as the other person or “acting” as that person. If use of personal identifying information is done in such a way that the user assumes the identity of another person in the ordinary, plain language meaning of the term, then it necessarily involves presenting oneself as the other person or acting as that person, thus rendering inclusion of the personal identifying information prong in the identity theft statutes superfluous. Accordingly, the inclusion of the third alternative in the statute must indicate that the use of someone else’s personal identifying information, in and 29 of itself, constitutes assumption of identity within the ambit of the identity theft statutes. See, e.g., Leader v. Maroney, Ponzini & Spencer, 97 N.Y.2d 95, 104 (2001) (in interpreting a statute, “meaning and effect should be given to every word of a statute”); People v. Dethloff, 283 N.Y. 309, 315 (1940) (Court must proceed “upon the assumption that the Legislature did not deliberately place in the statute a phrase which was intended to serve no purpose”). Indeed, if the Legislature had actually intended that a defendant’s use of another person’s personal identifying information would not, in itself, constitute the assumption of that person’s identity, it surely would have drafted the identity theft statutes accordingly. For instance, the Legislature could have specified that a defendant assumes the identity of another person by using the personal identifying information of that person and presenting himself as, or acting as, that other person. Alternatively, the Legislature could have written that a person commits identity theft when he uses the personal identifying information of another person in order to present himself as that other person.5 5 Laws from other states, which were enacted before New York’s identity theft statutes, offered the Legislature examples it could have followed had it wished to draft a statute that made assumption of another person’s identity a separate element from use of that person’s personal identifying information. In Massachusetts, for instance, a person commits “identity fraud” when, with the intent to defraud, he “poses as another person without the express authorization of that other person and uses such person’s personal identifying information.” Mass. Gen. Laws Ch. 266, § 37E(b) (approved Dec. 3, 1998) (emphasis added). Similarly, Wisconsin’s unauthorized use of personal identifying information statute makes it a felony for someone to intentionally use, attempt to use, or (Continued…) 30 Another option for the Legislature, if it had not intended the use of another’s personal identifying information to constitute an assumption of identity in and of itself, would have been to draw upon the language used in the pre-existing criminal impersonation statutes. A person commits criminal impersonation if he “[i]mpersonates” another person and does an act in “such assumed character” with the intent to obtain a benefit or to defraud or injure another, or if he “[i]mpersonates” another person by communicating by “internet website or electronic means” with the same intent. Penal Law §§ 190.25(1), (4). A person also commits criminal impersonation when he “[p]retends to be” certain specified categories of person. Penal Law §§ 190.25(2), (3); 190.26. If the Legislature had wished the identity theft statutes, like the criminal impersonation statutes, to require that the defendant assume another person’s identity in the ordinary meaning of the phrase, it could have stated that a person commits identity theft by using the personal identifying information of another person and “impersonat[ing]” or “pretend[ing] to be” the other person. It ___________________________ (…Continued) possess with the intent to use “any personal identifying information or personal identification document of an individual . . . without the authorization or consent of the individual and by representing that he or she is the individual, that he or she is acting with the authorization or consent of the individual, or that the information or document belongs to him[.]” Wisconsin Stat. Ann. § 943.201(2) (effective Apr. 28, 1998) (emphasis added). Under North Carolina law, a person is guilty of identity theft when he “knowingly obtains, possesses, or uses identifying information of another person . . . with the intent to fraudulently represent that the person is the other person” for the purpose of making financial transactions in the other person’s name, obtaining anything of value, or avoiding legal consequences. North Carolina Gen. Statutes § 14-113.20(a) (effective Dec. 1, 1999). 31 eschewed that option. As explained above, the identity theft statutes focus on three particular methods by which a person can be impersonated. The first two— presenting oneself as another person or acting as another person—clearly resemble the conduct criminalized by criminal impersonation. The method that is at issue here—using the personal identifying information of another person—is obviously different. By including that language in a disjunctive list in the statute, the Legislature recognized a new and independent manner by which a criminal could assume a victim’s identity. It also recognized the new reality of crimes involving identity and signaled that the reach of the statute was not limited to the types of physical impersonation commonly associated with criminal impersonation. In short, as the Appellate Division, Fourth Department has found, the statute is “unambiguous and defines the phrase ‘assumes the identity of another person’ by the phrase that immediately follows it, i.e., by, inter alia, using the personal identifying information of that other person[.]” Yuson, 133 A.D.3d at 1222 (quoting Penal Law § 190.80). And, given the unambiguous language of the statute, it was improper for the Appellate Division, First Department to resort to the rule of lenity and adopt an interpretation that was more favorable to the defendant. Barden, 117 A.D.3d at 226. The rule of lenity provides that “if two constructions of a criminal statute are plausible, the one more favorable to the defendant should be adopted[.]” People v. Green, 68 N.Y.2d 151, 153 (1986) (internal quotes and citation omitted). “The mere possibility of articulating a narrower construction, however, does not by itself make 32 the rule of lenity applicable.” Smith v. United States, 508 U.S. 223, 239 (1993). Instead, “the rule of lenity applies only if, after using the usual tools of statutory construction,” the court is “left with a ‘grievous ambiguity or uncertainty in the statute.’” Robers v. United States, 134 S.Ct. 1854, 1859 (2014) (quoting Muscarello v. United States, 524 U.S. 125, 139 [1998]); see also Lewis v. United States, 445 U.S. 55, 65 (1980) (the “touchstone” of the rule of lenity is “statutory ambiguity”). Here, because the statute is unambiguous, there was no occasion to invoke the rule of lenity. In reaching a contrary conclusion, the Appellate Division, First Department found it significant that Penal Law § 190.77, which provides definitions for terms used in the identity theft statutes, does not separately define the phrase “assumes the identity of another.” See Barden, 117 A.D.3d at 225–26. However, the most natural and plausible explanation for the phrase’s absence from the statute’s definitional subsection is that the Legislature intended to define “assumes the identity of another” in the wording of the statute itself. Id. at 226. The Appellate Division’s alternative suggestion—that “by excluding the phrase from the list of definitions, the Legislature may have intended” to list ways that a person could potentially assume the identity of another person—simply makes no sense. If the Legislature had wanted “assumes the identity” to have a meaning independent of the three methods specified in the statute, it would have provided a definition; the absence of a separate definition is only explicable if the phrase is, as the Fourth Department found, defined “by the phrase that immediately follows it[.]” Yuson, 133 A.D.3d at 1222. 33 This conclusion is supported by the nature of the methods by which a defendant can assume his victim’s identity—by “presenting” himself as the victim, by “acting” as the victim, or by using the victim’s personal identifying information. See Penal Law § 190.79. In the First Department’s view, it is possible for a defendant to use a victim’s personal identifying information without assuming the victim’s identity. Barden, 117 A.D.3d at 227. In contrast, the court acknowledged that it would be difficult to conceive of circumstances when presenting oneself as another person would not result in an assumption of that person’s identity, id.; the same is true about “acting” as the other person. However, the statute indicates no distinctions between the three methods. This is counter to what one would expect if an assumption of the victim’s identity was the inevitable result of a defendant acting as the victim or presenting himself as the victim, but merely a possibility when the defendant used the victim’s personal identifying information. In short, there is no statutory ambiguity here that would warrant invoking the rule of lenity. See, e.g., Shaw v. United States, 137 S.Ct. 462, 469 (2016) (“The statute is clear enough that we need not rely on the rule of lenity”); People v. Napolitano, 282 A.D.2d 49, 56 (1st Dep’t 2001) (the defendant’s rule of lenity argument was without merit where “the applicability of the Penal Law statutes is not ambiguous”). Rather, the natural and obvious meaning of the words chosen by the Legislature should be followed, and this Court should hold that the use of a person’s personal identifying 34 information constitutes assumption of that person’s identity for purposes of the identity theft statutes. B. The legislative history and overall statutory scheme further support the conclusion that a defendant’s use of another person’s personal identifying information constitutes an assumption of that person’s identity. Because the text of the statute is clear, the Court need look no further to determine the intent of the Legislature. However, if the Court were to seek further proof that the Legislature meant exactly what it said in the identity theft statute, it would be supplied by the available legislative history and the overall structure of the statutory scheme enacted to combat the misuse of consumers’ personal identifying information. See Thompson, 26 N.Y.3d at 685 (noting three-part statutory interpretation analysis employed by this Court that involves “review of (1) the plain language of the statute; (2) the statutory scheme as a whole; and (3) the relevant legislative history”) (citing Matter of Wallach v. Town of Dryden, 23 N.Y.3d 728, 744 [2014]). Rather than being “inconclusive,” as the Appellate Division suggested, Barden, 117 A.D.3d at 226, the available history makes it apparent that the Legislature was particularly concerned with the harm that stemmed from the improper use of consumers’ personal identifying information. In 2000, a State Senate Committee Report explained that identity theft “occurs when criminals steal the identity of law- abiding citizens by gaining access to their personal information such as name, address, Social Security Number, credit card numbers, bank account numbers or date of birth 35 to apply for credit or to obtain goods, services, or money.” State Senate Comm. on Investigations, Taxation & Gov. Operations, Identity Theft: Is Your Identity Safe? at 1 (June 2000) (“Senate Report”). The Report quoted a New York Times article which noted law enforcement’s concern with the “outright pilfering of people’s personal information for use in obtaining credit cards, loans, and other goods.” Id. In addition, the Report pointed out that identity theft was a growing problem because of the “increasing availability of information in computer databases,” and that the internet had made it exponentially easier for people to “disseminate identifying information, making it available for others to exploit.” Id. at 3–4. Subsequently, in 2002, the Legislature created the crime of identity theft. L. 2002, ch. 619, §3. During the preceding year, many other states had enacted legislation to combat the problem of identity theft. See Sponsor’s Memorandum in Support, 2002 McKinney’s Session Laws of N.Y. at 2093–94 (hereinafter “Sponsor’s Mem.”). New York was second only to California in the number of reported identity theft complaints, but it was unclear whether the “‘theft of identity’” was actually a crime under state law as it existed at the time. Id. The new legislation therefore added to the Penal Law felony and misdemeanor crimes for identity theft and the unlawful possession of personal identifying information to “aid law enforcement in combating one of the fastest growing financial crimes.” Id. Following the passage of the legislation, the sponsor of the bill explained that the new law criminalizing identity theft meant that New Yorkers would “be protected from the fraudulent use of their 36 personal information and identity.” 2002 Legislative Update from the NYS Assembly Consumer Affairs and Protection Committee, available at http://assembly.state.ny.us/comm/Affairs/20021120/ (last visited March 11, 2017). Governor Pataki voiced similar sentiments after signing the bill into law. His press release regarding the identity theft statutes reported, “The law provides new criminal penalties for the unlawful, unauthorized use of identifying information, including names, addresses, driver’s license numbers, social security numbers, credit card numbers, ATM codes.” Press Release, Governor Pataki Signs Identity Theft Legislation Into Law (Oct. 9, 2002) (“Pataki Press Release”). Thus, it is evident that the intent of the Legislature and Governor in enacting these statutes was not merely to criminalize conduct in which a defendant poses as another person in order to gain goods or services, but also to criminalize a wider array of conduct in which a defendant “use[s] another person’s personal identifying information to obtain goods or services.” Id.6 6 The Legislature’s concern with the misuse of consumers’ personal identifying information has persisted. In 2008, the Legislature passed a bill that “strengthen[ed] the State’s identity theft laws to protect individuals from misuse of their personal information[.]” N.Y. Bill Jacket, 2008 S.B. 8376. One of the chief justifications for the bill was the “heightened level of vulnerability and exposure” of consumers’ information due to “the compilation of large electronic databases[.]” See id. Accordingly, the Legislature sought to deter criminals from engaging in a method commonly used to obtain personal identifying information by making it illegal to possess a “skimmer,” defined as a device “designed or adapted to obtain personal identifying information from a credit card . . . or other card or device that contains personal identifying information.” See L. 2008, Ch. 279, §§ 9–13. 37 The provisions concerning unlawful possession of personal identification information, see L. 2002, ch. 619, §3, also shed light on the Legislature’s intent. The offense of unlawful possession of personal identification information is divided into three degrees. See Penal Law §§ 190.81, 190.82, 190.83. A defendant commits the third-degree crime, a class-A misdemeanor, when he knowingly possesses one of the forms of personal identification information listed in the statute with the knowledge that the information is intended to be used in furtherance of any crime defined in the Penal Law. See Penal Law § 190.81. A defendant commits the second-degree offense when he “knowingly possesses two hundred fifty or more” items of personal identification information with the knowledge that the information is intended to be used in furtherance of any Penal Law crime. See Penal Law § 190.82. Finally, a defendant commits first-degree unlawful possession of personal identification information when he commits the second-degree crime and either acts with the intent to further the commission of second-degree identity theft and supervises three or more “accomplices” or he has a previous conviction for any of the offenses listed in the statute. See Penal Law § 190.83. However, the Legislature introduced no provision—other than the crime of identity theft—that criminalized the use rather than the possession of personal identifying information. It seems entirely unlikely that the Legislature intended for the actual use of personal identifying information to be prosecuted as unlawful possession of personal identification information rather than identity theft. See People v. Essalek, 17 Misc.3d 38 835, 838 (Crim. Ct. N.Y. County 2007) (“A plain reading of the statute clearly reveals that a person need not actually use or attempt to use personal identification information to commit” unlawful possession of personal identification information). Here, defendant used Kelly Fermoyle’s American Express account number in an effort to purchase more than $1,000 worth of merchandise at a Manhattan store. By his unauthorized use of Fermoyle’s American Express account, defendant, even if he did not announce that he was Kelly Fermoyle, exposed her to the risk that she would be held liable for a large purchase that she did not make and also to potential damage to her credit history. When it made identity theft a crime, the Legislature took note of precisely these kinds of harms, which can result merely from a defendant’s unauthorized use of the victim’s personal identifying information. See Sponsor’s Mem. (identity theft victims are left with damaged reputation and bad credit and often have to spend large amounts of time to clear their names).7 Because defendant possessed only one item of personal identifying information, his conduct, if not deemed to be identity theft, would constitute third- degree unlawful possession of personal identification information. See Penal Law § 7 Although the Legislature was deeply concerned about these harms, it did not make liability for the portion of the identity theft statute at issue here dependent upon the defendant inflicting any particular harms upon his victim. See Penal Law § 190.79(3). Thus, the Appellate Division’s observation in Barden, 117 A.D.3d at 229, that the victim whose credit card was charged by the hotel did not suffer the “‘unique harms suffered by individuals whose identities have been stolen’” because he was able to have American Express remove the challenged charges from his account has no bearing here. 39 190.81. Thus, in spite of the fact that defendant was clearly deserving of a more severe criminal sanction that someone who simply possessed another person’s personal information without taking affirmative steps to use it, he would be exposed only to the sentences available for a class-A misdemeanor. That is cold comfort for the large numbers of identity theft victims in this state, and such a result would appear to be at odds with the Legislature’s goal for New York to “continue in its role as a leader in consumer protection.” See Sponsor’s Mem. Indeed, this Court has explained that “a statute should be construed in light of the problem to be cured and the event that prompted its enactment.” Gletzer v. Harris, 12 N.Y.3d 468, 475 (2009) (citing McKinney’s Cons. Laws of N.Y., Book 1, Statutes § 95). Here, the problem to be cured was the surging number of reported cases of identity theft. See Sponsor’s Mem. And, as the Appellate Division, First Department acknowledged in Barden, that surge was occurring in a technological context that allows a criminal readily to assume his victim’s identity without “pretending” to be her in the traditional sense. See Barden, 117 A.D.3d at 225 (“In our modern age of technology, identity theft is perhaps more easily and more fruitfully accomplished through the use of another’s personal information . . . rather than by presenting oneself as another”). Thus, by stating that a defendant assumes the identity of another person by using that person’s personal identifying information, the Legislature recognized that, in many instances, personal identifying information is all that is needed to actually assume another’s identity. 40 After all, the use of certain items of personal identifying information functions as an affirmative representation that the user is the person to whom that information belongs, and that representation is generally accepted at face value. In the overwhelming majority of cases, a customer paying by credit card completes the purchase herself by simply swiping the card through the store’s credit card reader, since the information necessary to complete the transaction is encoded on a magnetic strip or chip on the card. Recognizing this, criminals routinely use machines to encode legitimate account information stolen from unsuspecting consumers onto forged credit cards, which they then use make credit card purchases. See, e.g., People v. Lewis, 23 N.Y.3d 179, 184 (2014) (discussing scheme in which the defendants used forged credit cards encoded with stolen credit card numbers to make purchases in Manhattan stores); People v. Credel, 99 A.D.3d 541, 541–42 (1st Dep’t 2012) (the defendant’s fraudulent debit card “had been altered so that a third party would be billed for the transaction”). In most instances, if a credit card’s chip or magnetic strip is functional, then the card user’s identity is never questioned. In this case, to be sure, the store manager told the cashier to check defendant’s credit card and identification, but that was only because he was trying to make a substantial purchase (Orosco: A49– 50). Had defendant tried to make a more modest purchase, he likely would not have been asked any such questions. In short, although the Appellate Division looked to the name on defendant’s counterfeit credit card to determine that there was no assumption of identity here, the 41 reality is that, under normal circumstances, the name on a credit card is irrelevant—it is the personal identifying information that is the key to a transaction. As discussed, credit card purchases are most often completed by swiping or inserting the card into the store’s credit card reader. And, of course, the absence of face-to-face contact between merchant and customer in internet transactions means that it is even easier for criminals to exploit credit card numbers they have obtained by illegitimate means. That is because, “[t]ypically, a person’s identity is not verified in Internet transactions[,]” and “all the thief needs is a credit card number and expiration date to buy goods over the Internet[.]” Senate Report at 10; see Barden, 117 A.D.3d at 227– 28.8 Here, then, as defendant seemingly understood, Fermoyle’s account number was the key to completing his purchase because there was no information encoded on the card’s magnetic strip; that is why he urged the store employees to manually enter Fermoyle’s credit card number. Although the employees refused to do so—because of the amount of defendant’s purchase—Ortiz’s testimony confirmed that it was possible for a Champs customer to complete a purchase using a credit card number, without needing to swipe its magnetic strip (Ortiz: A324-25). 8 The same is true when stolen or forged credit cards are used in unattended vending machines. Indeed, in Barden, 117 A.D.3d at 227–28, the First Department cited People v. Wilson, 52 A.D.3d 239 (1st Dep’t 2008), a case where the defendant used a credit card that did not belong to him to purchase MetroCards from a vending machine, to support the idea that it is implied in a “typical credit card transaction” that a person who uses a credit card is the legitimate holder of the credit card. 42 Given these circumstances, the fact that defendant used an invented name rather than Fermoyle’s on the fake credit card bearing her account number is hardly surprising and should not exclude him from the purview of the identity theft statutes. For more savvy criminals, printing an alias rather than the victim’s name on a counterfeit credit card is one way to avoid arousing suspicion if, as happened to defendant, store personnel ask questions about the credit card. In that regard, an invented name eliminates the risk that the defendant’s appearance does not correspond with how a store employee expects that somebody with the name of the victim should look, such as when a male defendant has stolen the credit card account number of a woman. The same holds true, of course, even if a defendant has his own name imprinted on the card, making it even easier for him to allay any suspicion. Because, in transactions of this sort, it is the account number and not the name that enables the deception to succeed, it clearly made sense for the Legislature to provide that use of someone’s personal identifying information, without more, constitutes assumption of identity within the meaning of the identity theft statutes. Indeed, notwithstanding the Legislature’s passage of laws that criminalize identity theft, consumers remain vulnerable to the misuse of their credit card numbers. Based on Fermoyle’s testimony, it appears that her American Express account information was compromised when a piece of paper on which she had written her account details fell into the wrong hands. But, even if consumers themselves take every reasonable measure to safeguard their personal identifying 43 information, there is no guarantee that they will not be victimized. In 2017, identity theft remains the fastest growing crime in New York State and nationally, “with almost daily reports of breaches of customer information from large and small institutions.” 2017 New York Senate Bill 2406 (seeking to amend the Penal Law to account for new technology and increase the punishments for those who commit identity theft). It is reasonable to assume that others will engage in the same conduct as defendant here, and that criminals will continue to exploit consumers’ personal identifying information. This Court should therefore adopt an interpretation of the statute under which people who engage in such conduct can be prosecuted for identity theft, as the Legislature intended.9 In short, the additional proof of the Legislature’s intent provided by the legislative history, the overall statutory scheme, and the problem sought to be addressed by the statutes, further emphasizes that it was inappropriate for the 9 In Barden, 117 A.D.3d at 230, the Appellate Division stated that its decision did not mean that someone engaging in the same conduct as the defendant could avoid criminal responsibility, pointing out that the defendant was convicted of theft of services and that he could have faced unlawful possession of personal identification information charges. However, the existence of other statutes under which defendant could have been prosecuted should not be accorded undue significance. See Abeel, 182 N.Y. at 422 (“It may be equally true that the same act might be punished with even greater effectiveness under a different name, but it is not the province of courts to legislate or to nullify statutes by overstrict construction”). In any event, here, as discussed above, it is unlikely that the Legislature intended a defendant’s actual use of personal identifying information to be prosecuted as misdemeanor possession of personal identification information. Further, while it is true that defendant was convicted of two counts of possession of a forged instrument, his use of Fermoyle’s personal identifying information was not integral to those charges, and thus those charges fail to capture that separate, and extremely serious, aspect of his misconduct. 44 Appellate Division to invoke the rule of lenity in this case. See Moskal v. United States, 498 U.S. 103, 108 (1990) (the rule of lenity is reserved “for those situations in which a reasonable doubt persists about a statute’s intended scope even after resort to ‘the language and structure, legislative history, and motivating policies’ of the statute”) (emphasis in original) (quoting Bifulco v. United States, 447 U.S. 381, 387 [1980]); see also United States v. Granderson, 511 U.S. 39, 54 (1994) (applying the rule of lenity where the “text, structure, and history fail to establish that the Government’s position is unambiguously correct”). C. The trial evidence here showed that, even under the Appellate Division’s interpretation of the statute, defendant assumed Kelly Fermoyle’s identity. His conviction should therefore be reinstated if this Court elects to hold that assumption of identity is an element separate from use of personal identifying information. For the reasons discussed above, the Appellate Division improperly resorted to the rule of lenity to adopt a strained reading of the identity theft statute when there was no ambiguity about the Legislature’s intent. Yet, even if this Court were inclined to agree with the First Department’s reading of the statute, it should nevertheless reinstate defendant’s conviction for identity theft, because the First Department misapplied its own precedent in this case. Quite simply, there was no way that anyone could have known that defendant was not the holder of the American Express account, which he affirmatively insisted was his own, and therefore there was adequate proof, even under Barden, that defendant implicitly assumed Kelly Fermoyle’s identity by using her account number. 45 First, unlike in Barden, defendant did not merely claim that he was authorized to use Fermoyle’s credit card number when that was not the case. Rather, defendant attempted to conduct a “typical credit card transaction,” Barden, 113 A.D.3d at 227, by offering a credit card on which Fermoyle’s account number was printed as the form of payment when he attempted to purchase more than $1,000 worth of merchandise. Although defendant did not “affirmatively present himself” as Kelly Fermolye, he did affirmatively hold himself out to be the legitimate holder of the American Express account, angrily insisting, “This is my card,” after the employees told him the card could not be used (Orosco: A54, A91; Ortiz: A259, A274, A276, A317). Thus, as in “most cases,” defendant’s use of Fermoyle’s credit card account information “constitute[d] an implied assumption of [her] identity.” Barden, 117 A.D.3d at 228; see also People v. Boehlke, 137 A.D.3d 1321, 1323 (3rd Dep’t 2016) (concluding that conviction for identity theft was not against the weight of the evidence where the defendant’s unauthorized use of the victim’s ATM card and PIN number to make cash withdrawal implied that he was the cardholder). The fact that defendant’s counterfeit credit card and New Jersey driver’s license bore the name “Craig E. Jonathan” is of no moment. Unlike the hotel employees in Barden, the Champs Sports employees here had no reason to be aware of the “card user and cardholder’s distinct identities[.]” Barden, 117 A.D.3d at 228. In Barden, when the defendant checked in at the hotel, he informed the hotel staff that the victim had agreed to charge defendant’s room to his credit card, and the victim spoke 46 with a hotel employee to confirm the defendant’s representation and to authorize a third-party billing agreement. The trial evidence revealed that the hotel employees knew that the defendant, who was a long-term guest, was not using his own credit card. The employees also knew the defendant by his real name. See id. at 228–29. Thus, in that case, there was never any uncertainty about the defendant’s identity. Here, on the other hand, defendant insisted that the credit card belonged to him, and he made repeated, vociferous efforts to induce the employees to enter the numbers manually into their system when the card could not be read by the machine. In doing so, he implicitly represented himself as the person whose credit card account this was: Kelly Fermoyle. Under the circumstances, it would be absurd for the outcome of this case to depend on whether or not the employees looked at the name on the card and believed that defendant was, in fact, “Craig E. Jonathan.” After all, during defendant’s brief and one-off visit to the Champs Sports store in Times Square, the employees had no way of knowing the name of the person who was the holder of the American Express account. There was no information encoded on the magnetic strip on defendant’s counterfeit credit card, and the employees did not acquire any potential information from the account number itself because they refused defendant’s overtures to manually input the numbers. Moreover, in words and actions, defendant represented himself as the holder of the actual American Express account, and there was no dispute that the account holder was a real person named Kelly Fermoyle. Plainly, 47 then, this was not the “rare case” when the implied assumption of identity attendant upon use of a person’s personal identifying information “falls away,” Barden, 117 A.D.3d at 228, and it was therefore not error for the jury to convict defendant of identity theft. Finally, the Appellate Division’s determination that defendant assumed the identity of Craig Jonathan, a “fictitious person,” Roberts, 138 A.D.3d at 462, misses the point. Defendant’s assumption of identity was based on his use of personal identifying information, and he used an account number that belonged to Kelly Fermoyle, who was a real person. Under other circumstances, such as if there were no allegation that defendant used a real person’s personal identifying information and if the alleged assumption of identity was based simply upon him “presenting” himself as someone else or “acting” as someone else, then it might be relevant that it was not shown that a living person called Craig Jonathan existed. Here, where defendant used Fermoyle’s personal identifying information and thereby assumed her identity, his tangential efforts to pass himself off as Craig Jonathan are irrelevant. In short, even under the interpretation of the statute set forth in Barden, the People adduced legally sufficient proof that defendant committed identity theft. * * * In sum, the evidence at trial provided the jury with a legally sufficient basis to conclude that defendant assumed Kelly Fermoyle’s identity by using her personal identifying information. The Appellate Division’s interpretation of the identity theft 48 law is at odds with the intent of the Legislature, as evidenced by the statutory text, legislative history, concurrent enactments, and problem that prompted passage of the legislation. From those sources, it is apparent that the Legislature understood that a defendant can assume his victim’s identity without having to trick another person into believing that he is the victim. But, even if this Court ultimately agrees with the Appellate Division’s interpretation of the statute, it should still reinstate the identity theft conviction, because nothing in the trial proof nullified the implicit assumption of identity that took place when defendant used Kelly Fermoyle’s American Express account number in his attempt to pay for more than $1,000 worth of merchandise. CONCLUSION The order of the Appellate Division should be modified and defendant's conviction for Identity Theft in the Second Degree should be reinstated. ALICE WISEMAN PHILIP MORROW Assistant District Attorneys Of Counsel March 17,2017 Respectfully submitted, CYRUS R. VANCE,JR. District Attorney New York County BY: fJ_M~ PHILIP MORROW Assistant District Attorney 49 PRINTING SPECIFICATIONS STATEMENT I certify that the word count for this brief is 12498, excluding the Table of Contents and Table of Authorities. The word processing system used to prepare this brief and to calculate the word count was Microsoft Word 2016. The brief is printed in Garamond, a serifed, proportionally spaced typeface. The type size is 14 points in the text and headings, and 13 points in the footnotes. PHILIP MORROW Assistant District Attorney