The People, Respondent,v.Fernando Maldonado, Appellant.

Brief

N.Y.January 11, 2017

TABLE OF CONTENTS Page TABLE OF AUTHORITIES........................................... i QUESTIONS PRESENTED ............................................ v PRELIMINARY STATEMENT .......................................... 1 STATEMENT OF FACTS ............................................. 3 Introduction.............................................. 3 The Trial................................................. 5 The People’s Case ..................................... 5 Defendant’s Case ..................................... 28 The Motion to Dismiss and the Charge Conference .......................................... 28 The Verdict, the Motion to Set Aside the Verdict, and the Sentence ....................................... 30 The Appeal............................................... 31 POINT I - DEFENDANT’S CLAIM THAT THE EVIDENCE WAS LEGALLY INSUFFICIENT TO SUPPORT THE FIRST-DEGREE GRAND LARCENY CONVICTION, BECAUSE, IN HIS VIEW, THE EVIDENCE FAILED TO SHOW THAT HE OBTAINED ANY PROPERTY, IS PARTIALLY UNPRESERVED FOR APPELLATE REVIEW. MOREOVER, DEFENDANT’S CLAIM IS MERITLESS........................... 33 A. Defendant’s Claim that the Evidence Was Legally Insufficient to Support the First-Degree Grand Larceny Conviction, Because the Forged Deed that He Filed Was Void Ab Initio -- and Thus He Obtained Nothing, and Hence Stole Nothing -- Is Largely Unpreserved for Appellate Review and Is Meritless............................................34 B. Defendant’s Additional Claim, that the Evidence Was Legally Insufficient to Support the First- Degree Grand Larceny Conviction, Because the Deed that He Filed Was a Quitclaim Deed, and Thus, He Obtained Nothing and Hence Stole Nothing, Is Meritless............................................59 POINT II - DEFENDANT’S CLAIM THAT, BECAUSE THE EVIDENCE FAILED TO SHOW THAT THE PROPERTY OWNERS RELIED ON HIS FALSE PRETENSES, THE EVIDENCE WAS LEGALLY INSUFFICIENT TO SUPPORT THE FIRST-DEGREE GRAND LARCENY CONVICTION, IS UNPRESERVED FOR APPELLATE REVIEW. MOREOVER, DEFENDANT’S CLAIM IS MERITLESS........................... 63 TABLE OF CONTENTS (cont’d) Page ii POINT III - DEFENDANT’S CLAIM THAT THE EVIDENCE WAS LEGALLY INSUFFICIENT TO ESTABLISH HIS GUILT OF CRIMINAL POSSESSION OF A FORGED INSTRUMENT IN THE SECOND DEGREE IS UNPRESERVED FOR APPELLATE REVIEW AND MERITLESS........ 79 POINT IV - THE EVIDENCE WAS LEGALLY SUFFICIENT TO PROVE DEFENDANT’S GUILT OF ATTEMPTED GRAND LARCENY............. 93 POINT V - DEFENDANT’S CLAIM THAT THE EVIDENCE WAS LEGALLY INSUFFICIENT TO PROVE THAT THE VALUE OF THE LOAN THAT DEFENDANT ATTEMPTED TO OBTAIN UNDER FALSE PRETENSES EXCEEDED ONE MILLION DOLLARS IS UNPRESERVED FOR APPELLATE REVIEW AND MERITLESS.......................... 102 CONCLUSION - FOR ALL OF THE ABOVE REASONS, THE ORDER OF THE APPELLATE DIVISION AFFIRMING THE JUDGMENT OF CONVICTION SHOULD BE AFFIRMED........................... 109 TABLE OF AUTHORITIES Pages CASES Aetna Cas. & Sur. Co. v. Shuler, 72 A.D.2d 591 (2d Dep’t 1979) ....................................................... 85 Carr v. Maltby, 165 N.Y. 557 (1901)........................... 45 Commonwealth v. Figueroa, 859 A.2d 793 (Pa. Super. Ct. 2004) ....................................................... 52 Faison v. Lewis, 25 N.Y.3d 220 (2015)..................... 41, 51 In re Sharon B., 72 N.Y.2d 394 (1988)......................... 84 Int’l Union Bank v. Nat’l Sur. Co., 245 N.Y. 368 (1927)....... 88 Jackson v. Virginia, 443 U.S. 307 (1979)...................... 39 Jones v. Barnes, 463 U.S. 745 (1983).......................... 91 Karaduman v. Newsday, 51 N.Y.2d 531 (1980).................... 84 Kraker v. Roll, 100 A.D.2d 424 (2d Dep’t 1984)................ 88 Marden v. Dorthy, 160 N.Y. 39 (1899)..................... 55, 106 People v. Alamo, 34 N.Y.2d 453 (1974)......................... 68 People v. Asaro, 94 N.Y.2d 792 (1999)......................... 90 People v. Becoats, 17 N.Y.3d 643 (2011)............... 38, 39, 81 People v. Benevento, 91 N.Y.2d 708 (1998)..................... 74 People v. Byrne, 77 N.Y.2d 460 (1991)......................... 84 People v. Caban, 5 N.Y.3d 143 (2005)...................... 74, 90 People v. Contes, 60 N.Y.2d 620 (1983)........................ 39 People v. Cunningham, 2 N.Y.3d 593 (2004)......... 82, 83, 85, 87 People v. Davidson, 98 N.Y.2d 738 (2002)...................... 64 TABLE OF AUTHORITIES (cont’d) Pages ii People v. Dekle, 56 N.Y.2d 835 (1982)..................... 39, 66 People v. Denson, 26 N.Y.3d 179 (2015).................... 94, 97 People v. Dlugash, 41 N.Y.2d 725 (1977)....................... 96 People v. Ford, 11 N.Y.3d 875 (2008)...................... 39, 66 People v. Ford, 66 N.Y.2d 428 (1985).......................... 39 People v. Foster, 73 N.Y.2d 596 (1989)........................ 68 People v. Gray, 86 N.Y.2d 10 (1995)....................... 38, 81 People v. Hines, 97 N.Y.2d 56 (2001).................. 38, 64, 81 People v. Hughes, 22 N.Y.3d 44 (2013)..................... 64, 65 People v. Jennings, 69 N.Y.2d 103 (1986)...................... 77 People v. King, 23 N.Y.3d 1022 (2014).......................... 1 People v. Laraby, 92 N.Y.2d 932 (1998)........................ 64 People v. Levitan, 49 N.Y.2d 87 (1980)................ 87, 88, 89 People v. Mahboubian, 74 N.Y.2d 174 (1989)........... 94, 96, 103 People v. Maldonado, 25 N.Y.3d 1167 (2015)................. 2, 32 People v. Maldonado, 119 A.D.3d 610 (2d Dep’t 2014) ............................................ 1, 31, 88, 92 People v. Mirenda, 23 N.Y.2d 439 (1969)....................... 96 People v. Norman, 85 N.Y.2d 609 (1995).................... 38, 81 People v. Olivo, 52 N.Y.2d 309 (1981)..................... 67, 77 People v. Padro, 75 N.Y.2d 820 (1990)......................... 64 People v. Robles, 116 A.D.3d 1071 (2d Dep’t 2014)............. 74 People v. Rossey, 89 N.Y.2d 970 (1997)........................ 39 People v. Sala, 95 N.Y.2d 254 (2000).......................... 39 TABLE OF AUTHORITIES (cont’d) Pages iii People v. Sanders, 67 Cal. App. 4th 1403 (1998)............... 54 People v. Smith, 128 A.D.3d 1434 (4th Dep’t 2015)............. 74 People v. Stultz, 2 N.Y.3d 277 (2004)......................... 91 People v. Termotto, 178 A.D.2d 1025 (4th Dep’t 1991), aff’d, 81 N.Y.2d 1008 (1993) ................................ 73 People v. Termotto, 81 N.Y.2d 1008 (1993)..................... 58 People’s Trust Co. v. Smith, 215 N.Y. 488 (1915).............. 88 State v. Pittman, 2015 Iowa App. LEXIS 81 (Ct. App. Feb. 11, 2015) ................................................... 71 STATUTES C.P.L. § 210.20............................................... 65 C.P.L. § 330.30............................................... 64 C.P.L. § 470.05........................................... passim Cal. Penal Code (former) § 487................................ 54 Cal. Penal Code § 484......................................... 54 Model Penal Code and Commentaries (Official Draft and Revised Comments 1980) ...................................... 71 P.L. § 110.00...................................... 1, 4, 93, 108 P.L. § 110.10................................................. 96 P.L. § 135.00................................................. 98 P.L. § 145.45................................................. 75 P.L. § 155.00............................................. passim P.L. § 155.05............................................. passim P.L. § 155.35.................................................. 4 P.L. § 155.40........................................... 107, 108 TABLE OF AUTHORITIES (cont’d) Pages iv P.L. § 155.42...................................... 1, 4, 41, 108 P.L. § 165.15......................................... 47, 48, 50 P.L. § 170.00................................................. 82 P.L. § 170.10................................................. 82 P.L. § 170.25........................................... 1, 4, 82 P.L. § 175.10.................................................. 4 Real Prop. Law § 266.......................................... 45 CONSTITUTIONAL PROVISIONS N.Y. Const. art. VI, § 3(a)............................... passim TREATISES 43A N.Y. Jur. 2d (2007)....................................... 45 3 Wayne R. LaFave, Substantive Criminal Law (2d ed. 1986)..... 69 OTHER AUTHORITIES Black’s Law Dictionary (9th ed. 2004) ..................... 44, 58 Merriam-Webster’s Collegiate Dictionary (11th ed. 2003)....... 44 QUESTIONS PRESENTED 1. Whether defendant has, in part, failed to preserve for appellate review his claim that, because the evidence did not prove that he brought about an actual or purported transfer of property to himself, the evidence was legally insufficient to support his conviction of first-degree grand larceny; and whether, in any event, his claim is meritless, (a) because the evidence was legally sufficient to establish the elements of the crime of first-degree grand larceny as those elements were charged to the jury without exception, and (b) because, even when considering the statutory elements of that crime, the evidence, in fact, showed that defendant, by filing a forged property deed, unlawfully brought about a purported transfer of property to himself. 2. Whether defendant has failed to preserve for appellate review his claim that, because the evidence failed to show that the property owners relied on his false pretenses, the evidence was legally insufficient to support his conviction of first- degree grand larceny; and whether, in any event, his claim is meritless, (a) because the evidence was legally sufficient to establish the elements of the crime of first-degree grand larceny as those elements were charged to the jury without exception, and (b) because, even when considering the statutory vi elements of that crime, for a prosecution of larceny by false pretenses, there need not invariably be a showing that it was the property owner who relied on the defendant’s false pretenses. 3. Whether defendant has failed to preserve for appellate review his claim that the trial evidence was legally insufficient to establish his guilt of second-degree criminal possession of a forged instrument; and whether, in any event, his claim is meritless, because the evidence was legally sufficient to show that defendant, who had no legal connection to the corporate owner of the property, signed the deed as the owner of the corporation, thereby falsely assuming the identity of the owner and ostensible maker of the deed. 4. Whether the evidence was legally sufficient to prove that defendant had come dangerously close to obtaining a loan under false pretenses, and thus that he was guilty of attempted grand larceny, where the evidence showed that he had taken numerous steps in furtherance of his attempt to obtain the loan, and where the evidence also showed that, if the attendant circumstances had been as defendant believed them to be, then he would have succeeded in obtaining the loan. 5. Whether defendant has failed to preserve for appellate review his claim that the evidence was legally insufficient to vii prove that the value of the loan that he attempted to obtain under false pretenses exceeded one million dollars; and whether, in any event, his claim is meritless. COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- FERNANDO MALDONADO, Defendant-Appellant. Kings County Indictment Number 5424/2009 APL-2015-00173 RESPONDENT’S BRIEF PRELIMINARY STATEMENT Defendant Fernando Maldonado appeals from an order of the Appellate Division, Second Department, entered July 2, 2014. People v. Maldonado, 119 A.D.3d 610 (2d Dep’t 2014). That order affirmed a judgment of the Supreme Court, Kings County, entered on May 19, 2011, convicting defendant, after a jury trial, of Grand Larceny in the First Degree (P.L. § 155.42), Attempted Grand Larceny in the First Degree (P.L. §§ 110.00/155.42), and Criminal Possession of a Forged Instrument in the Second Degree (P.L. § 170.25), and sentencing him to concurrent terms of imprisonment of three to nine years on the grand larceny count, three to nine years on the attempted grand larceny count, and two to six years on the possession of a forged instrument count (McKay, J., at trial and sentence). By certificate dated June 19, 2015, former Chief Judge Jonathan Lippman granted defendant’s application for leave to 2 appeal to this Court from the order of the Appellate Division. People v. Maldonado, 25 N.Y.3d 1167 (2015). Defendant was discharged from his sentence on November 12, 2014. There were no codefendants. 3 STATEMENT OF FACTS Introduction Over the course of approximately two years, 2007 and 2008, defendant Fernando Maldonado pursued a scheme to steal ownership of a six-story apartment building located at 242 South Second Street, in Brooklyn, and to take out a loan in excess of one million dollars, to be secured by a mortgage on that building. The building, a cooperative, was owned by the 242 South Second Street Housing Development Fund Corporation (“HDFC”). The shares in the corporation were largely held by the tenants of the cooperative. By the summer of 2008, HDFC had a fair market value of several million dollars. By 2007, defendant, who had once been a shareholding president of the board of HDFC and a tenant, no longer was a tenant, no longer owned shares in HDFC, and no longer was on the board. In sum, by 2007, defendant no longer had any legal relationship with HDFC. Nevertheless, during 2007 and 2008, defendant repeatedly proclaimed to the shareholders and various governmental agencies that he owned the building and that he was president of the board of HDFC. During that period, defendant also engaged in a series of acts that materially interfered with the rights of the shareholders and tenants of HDFC to quiet enjoyment of their property. Pursuant to his scheme, defendant, without permission 4 or authority of the building’s shareholders, filed with Metro Funding Corporation (“MFC”) an application to obtain a loan in excess of one million dollars, to be secured by the property owned by HDFC. Pursuant to the loan application, defendant submitted to MFC forged rent rolls for the building. To pay the filing fee on the mortgage application, defendant took a loan from James Bond. Defendant also hired Bond as a consultant. In 2008, defendant filed a forged deed with the New York Department of Finance, City Register (“City Register”), which purported to transfer an ownership interest in the property from HDFC to defendant himself. For these acts, defendant was charged, under Kings County Indictment Number 5425/2009, with Grand Larceny in the First Degree (P.L. § 155.42) (relating to defendant’s filing of the forged deed), Attempted Grand Larceny in the First Degree (P.L. §§ 110.00/155.42) (relating to defendant’s attempt to obtain a mortgage from MFC under false pretenses), Grand Larceny in the Third Degree (P.L. § 155.35) (relating to defendant’s taking money from James Bond under false pretenses), Criminal Possession of a Forged Instrument in the Second Degree (P.L. § 170.25) (two counts) (relating to defendant’s possessing and filing of the forged deed), and Falsifying Business Records in the First Degree (P.L. § 175.10) (relating to defendant’s having submitted falsified rent rolls to MFC). 5 The Trial The People’s Case In 1983, New York City owned the six-story apartment building at 242 South Second Street in Brooklyn (MARK MATTHEWS: A 157-59).1 On June 22, 1983, the New York City Department of Housing Preservation and Development (“HPD”), on behalf of New York City, incorporated HDFC (Matthews: A 158-59). The purpose for creating HDFC was to transfer ownership of the property at 242 South Second Street to HDFC from New York City and then to offer for sale shares in HDFC to the tenants of the building (Matthews: A 151-53, 157). As a result, the property would become a cooperative for low-income tenants (ROSARIO ANDRADE [HDFC Board President]: A 49; Matthews: A 152). Each share of HDFC was to be sold for two hundred fifty dollars (Matthews: A 151). Each share purchased by a tenant would entitle that tenant to a ninety-nine-year proprietary lease on one apartment or one unit in the building (Matthews: A 151-52). Each share owned by a shareholder would also entitle the shareholder to one vote for each slot on the board of 1 Numbers in parentheses preceded by “A” refer to pages of defendant’s appendix. Number in parentheses preceded by “RA” refer to pages of the respondent’s appendix. Names in parentheses preceding page references refer to the witnesses whose testimony is cited. Mark Matthews was an asset manager for New York City Department of Housing Preservation and Development (Matthews: A 150). 6 directors of HDFC (Andrade: A 49; Matthews: A 159). There were to be no income restrictions for the tenants already living in the building to purchase a share in HDFC (Matthews: A 151). Any new prospective tenants or shareholders, however, would have to qualify under low-income guidelines (Matthews: A 151). Upkeep, maintenance, and taxes on the property would be funded by monthly payments assessed on each shareholder (Matthews: A 146). Any shareholder who failed to pay the monthly assessment would be subject to eviction (Matthews: A 153-54). By a deed dated February 28, 1985, New York City conveyed ownership of the property at 242 South Second Street to HDFC (Matthews: A 160-61; JOY BOBROW: A 543-45).2 The deed was signed by the deputy mayor of New York City, on behalf of the City, and by defendant, as president of HDFC, on behalf of HDFC (Matthews: A 161-62). Being president of HDFC did not confer on defendant any ownership rights in the property (Matthews: A 162). In 2004, HDFC entered into a regulatory agreement with the City of New York, pursuant to which, for the following thirty years, no shareholder could acquire more than a twenty percent stake in HDFC (MIGDALIA RAMOS [HDFC Board Member]: A 320). 2 JOY BOBROW was an employee of the New York City Department of Finance and had previously served as that agency’s City Register (Bobrow: A 542). 7 Ultimately, shares representing all but two of the thirty- four units in the building at 242 South Second Street were purchased by its tenants, giving each of the shareholding tenants a proprietary lease on his or her unit (Matthews: A 151- 52; Ramos: A 336). The remaining two unsold units had tenants with non-proprietary rental leases (Ramos: A 336). Only eight of HDFC’s proprietary leases were recorded with the New York City Department of Finance, City Register (“City Register”) (STEVE WOLGIN [Appraiser]: A 607, 625; see JODY SALTZMAN [Attorney for MFC]: A 277). The shareholders of HDFC held periodic elections for its board of directors and officers (Andrade: A 50). Being a board member or officer was an unpaid position, and conferred no additional ownership interest in HDFC (Andrade: A 51). Any major decision regarding HDFC would require approval by a majority of the board of HDFC, and the president could not unilaterally decide to encumber the property (Andrade: A 51, 113-14). Any payments made by the president of HDFC for expenses incurred by HDFC would have to be cosigned by another board member (Andrade: A 51, 113). HDFC hired Del-Mar Management Company to manage the property (Andrade: A 50). After having served less than a year as president of the board of HDFC, defendant was removed from his post, because he had fallen into arrears on his common charges to HDFC and a 8 board member could not be in arrears on those charges (Porrata: A 303). In the late 1980’s, the marshal arrived to evict defendant from his apartment in 242 South Second Street, after which RAMONA PORRATA, who had been defendant’s next-door neighbor, and who was a shareholding tenant, observed that defendant no longer appeared to be living in the building (Porrata: A 302-07; Ramos: A 315-16). HDFC’s business records showed that by 1993 defendant was no longer a shareholder in HDFC and that he was no longer a member or officer of HDFC’s board of directors (Ramos: A 307-08). In 1998, Rosario Andrade moved into an apartment at 242 South Second Street (Andrade: A 46). In about 2005, she was elected Board President of HDFC, a position she continued to hold as of the time of her trial testimony (Andrade: A 50). In January 2007, Andrade, who owned and worked in a salon in a storefront on the ground floor of 242 South Second Street, began being approached repeatedly by various people who would inform her that they were interested in buying the building from its owner, “Fernando Maldonado” (Andrade: A 52). On one such occasion, defendant was with a prospective buyer (Andrade: A 52- 53). In January 2007, Andrade also began receiving many telephone calls from people interested in buying the building from its owner, “Fernando Maldonado” (Andrade: A 55). Andrade 9 would explain to the interested buyers that the property was not for sale (Andrade: A 55). On July 2, 2007, Andrade received a letter from the New York City Department of Environmental Protection (“DEP”), notifying her that the name on the building’s DEP account for water service had been changed from HDFC’s corporate name to “Fernando Maldonado” (Andrade: A 55-56; Ramos: A 323-24). After Andrade and Migdalia Ramos, another board member, contacted DEP, the name on the account was switched back to HDFC’s corporate name (Andrade: A 57; Ramos: A 324). In the evening of July 17, 2007, Andrade saw that two large posters were prominently posted on each floor of the building, one in English and one in Spanish (Andrade: A 57-58). The English posters stated: FOR EVERYONE TO READ I, Fernando Maldonado, president since 1985 of 242 South 2nd Street Have Not and Do Not give any tenant or anyone else permission to do any type of demolition or renovations in any unit. I, Fernando Maldonado, Founder and President of 242 South 2nd Street H.D.F.C. with the order of the Deputy Commissioner Thomas J. Farielo ORDER No Work to be done in this building if a work permit from the Department of Buildings is NOT POSTED by Owner: “D.O.B. OR BY FOUNDER F.M.” YOU WILL BE WORKING UNDER HAZARDOUS CONDITION IF YOU DON’T FOLLOW THESE ORDERS!!! 10 UNDER ARTICLES XI XV (RA 1-2 [People’s Exhibit 3]; Andrade: A 57-59). The posters in Spanish were substantively the same as the posters in English (RA 1-2; Andrade: A 57-59). Both the English and Spanish posters were signed “Fernando Maldonado” and were notarized (RA 1-2; Andrade: A 57-59). In the lobby, Andrade encountered defendant and “Bernard” posting even larger copies of the posters that were posted on the higher floors (Andrade: A 59-60, 116). Andrade asked defendant who he was, and defendant replied that “he was the owner of the building” (Andrade: A 60-61). When Andrade told defendant that HDFC owned the building, defendant replied, “Fucking bitch, I’m going to see you in court” (Andrade: A 61). The next day, Andrade filed a police report relating to the incident (Andrade: A 55). Subsequently, defendant mailed copies of the posters to each of the tenants (Andrade: A 61). In October 2007, HDFC hired a contractor to repair the roof and repoint the brickwork (Andrade: A 61-62; Ramos: A 321-22). HDFC obtained a permit from the Department of Buildings (“DOB”) to perform the work (Andrade: A 62). On November 26, 2007, DOB received a letter from defendant, in which he protested that he had not authorized the ongoing repair work at 242 South Second Street (NEIL ADLER [of DOB]: A 355-57). On November 27, 2007, DOB posted at the building a 11 “stop-work order,” on the ground that the owner, defendant, had not authorized the work that was being performed there (Andrade: A 63-66; Ramos: A 322; Adler: A 358). As a result of the stop work order, all repair work on the HDFC building ceased, until DOB lifted the stop work order in September 2008 (Andrade: A 65; Ramos: A 322-23; Adler: A 352-58). As a result of the stop work order that was issued at defendant’s behest, HDFC paid thousands of dollars in fines to DOB and legal fees for an attorney HDFC had retained to resolve the matter (Andrade: A 65, 118; Ramos: A 322; Adler: A 359). * * * Metro Funding Corporation (“MFC”) was in the business of lending money short term at high interest rates to commercial property owners who had poor credit histories, and to those who otherwise would not qualify for a conventional loan (BEN RUTKEVITZ [MFC Manager]: A 175, 178-80, 183-84, 228). MFC typically loaned no more than fifty or sixty percent of the value of the borrower’s collateral, as determined by the “quick- sale” value of the collateral if the collateral were to be sold at foreclosure, in an “as is” condition (Rutkevitz: A 180, 197- 98). In June 2008, Ron Simone, a California-based loan broker acting on defendant’s behalf, submitted to MFC an application 12 for a loan of ten million dollars, to be secured by a mortgage on the property at 242 South Second Street, which property, according to the application, was owned by defendant, and was worth twenty million dollars (Rutkevitz: A 192-93, 225-27, 252). The loan-application papers identified defendant as a bartender who owned HFDC, which in turn, owned in fee simple the property at 242 South Second Street, which HDFC had purchased in 1985 for $8,500 (Rutkevitz: A 188-90). The application stated that defendant wanted the loan for purposes of debt consolidation and to cash out equity in the property (Rutkevitz: A 188). In a telephone conference with MFC, defendant claimed that HFDC’s building was worth twenty million dollars, and that its “quick-sale value,” at an “as-is” sale, was between fourteen and fifteen million dollars (Rutkevitz: A 196-97). Defendant assured MFC that he was authorized to take the loan, and MFC accepted defendant at his word, because it was rare for anyone to request a loan on a building that he or she did not own (Rutkevitz: A 192). As a result, MFC issued to defendant a letter of intent, indicating its willingness to give defendant a loan for seven million dollars, subject to an appraisal, a title search, and payment by defendant to MFC of $12,700 as an application fee (Rutevitz: A 199-202). The purpose of the loan, as stated in the letter of intent, was now to enable defendant 13 to renovate HDFC’s building and to enhance the building’s value (Rutkevitz: A 201). On June 18, 2008, Rich Ayabarreno, a mortgage broker, asked JAMES BOND to lend “Fernando Maldonado” money to pay the application costs for obtaining a commercial loan that was to be secured by the property at 242 South Second Street (Bond: A 373- 77). Bond spoke by telephone to defendant, and defendant told Bond that he, together with eight other investors, had purchased the building from the city, that he was the majority stakeholder in HDFC, that he had a controlling interest in HDFC, and that he was the president of HDFC (Bond: A 381-82). Defendant told Bond that he intended to renovate the building so that he could increase the rent and so that, if he later decided to sell the building, he could sell it at a higher price (Bond: A 384). Defendant submitted to Bond those copies of HDFC’s water bills that had defendant’s name on the account, the stop-work order that he had initiated, and the posters that he had displayed in the building (Bond: A 377-78). Bond drafted for defendant a Statement of Understanding, pursuant to which Bond would personally invest five thousand dollars, and pursuant to which Bond would provide seven other investors, who would invest up to fifty thousand dollars in total (Bond: A 385-87, 450-51). Bond also agreed to work for defendant as a consultant (Bond: A 387-89). Defendant gave Bond 14 power of attorney to act on defendant’s behalf (Bond: A 388, 390). Bond gave MFC a check, dated July 11, 2008, for five thousand dollars towards the application fee on the loan (Rutkevitz: A 220; Bond: A 395-96). On July 20, 2008, Bond wrote to defendant, reiterating that defendant still needed to provide MFC with a property deed, a property survey, the rent rolls, and proof of property insurance (Bond: A 396-97). By a check dated July 30, 2008, Bond paid MFC the $7,700 balance remaining on the application fee (Rutkevitz: A 219; Bond: A 397). At some point, defendant submitted to MFC a forged record of the “rent rolls” for 242 South Second Street, in which the amounts of money that the tenants allegedly paid each month to HDFC was greatly inflated (Rutkevitz: A 193-95; see Ramos: A 331-33). The fraudulently prepared records had defendant’s signature, and identified him as “president” (Rutkevitz: A 193- 95). In early August 2008, Andrade saw two men measuring the front of the building at 242 South Second Street (Andrade: A 73- 74, 97-98, 121-22). When Andrade confronted the two men, they told her that they were with MFC and that they had been sent by defendant, who owned the building (Andrade: A 73-74, 97-98, 121- 15 22). Andrade informed them that HDFC owned the building, and the men left after Andrade threatened to call the police (Andrade: A 73-74, 97-98, 121-22). On August 9, 2008, Andrade received a telephone call from James Bond, who identified himself as a representative of a mortgage company from which defendant, “the owner of the building,” was taking out a loan (Andrade: A 104-05). Andrade explained to Bond that the property was owned by a low income “co-op,” that the co-op was financially stable, and that the co-op did not need a loan (Andrade: A 105). Bond asked Andrade, “Are you kidding me?”, and Andrade replied that she was not (Andrade: A 105). Later that day, the board of HDFC referred the matter to the District Attorney (Andrade: A 107-08). On August 12, 2008, MFC sent defendant a loan commitment letter, which provided that the loan would be for seven million dollars, of which one million and five hundred thousand dollars would be for renovating the building, and the balance would be for defendant’s own use (Rutkevitz: A 204-05, 236, 241-43). On August 25, 2008, defendant, Bond, STEVE WOLGIN, who was a licensed appraiser, and Wolgin’s assistant, Kathleen Mann, went to 242 South Second Street (Andrade: A 75-76; Bond: A 402- 03; Wolgin: A 590-91, 601). The appraisers measured and photographed the interiors of some of the apartments, including Ramona Porrata’s apartment (Andrade: A 75-80, 97-98). Andrade 16 contacted Del-Mar Management, HDFC’s property manager, and Del-Mar dispatched Ellis DellValle to the building (Andrade: A 77-78). Upon arriving at 242 South Second Street, Dellvalle summoned the police, who told the appraisers to leave (Andrade: A 78, 126-27; Wolgin: A 603). Wolgin contacted MFC and told them what had happened during the appraisal (Wolgin: A 603). On September 10, 2008, Wolgin provided MFC with an appraisal report, in which Wolgin appraised the quick-sale market value of the twenty-six units that defendant asserted he owned at $1,650,000 (Wolgin: A 596-97, 607, 610-11). The appraisal value of the twenty-six units was reduced from the appraisal value at which it would otherwise have been appraised, because, pursuant to HDFC rules, no more than $59,520 could be earned by a shareholder on the sale of any unit in the building (Wolgin: A 607). Wolgin further concluded in the report that the quick-sale market value after the anticipated renovations would be $2,925,000 (Wolgin: A 596-97, 606). A quick-sale appraisal value was generally as much as thirty percent lower than what the appraisal value would otherwise be (Wolgin: A 600). By letter dated September 12, 2008, MFC informed defendant that, because of the reduced appraisal value, MFC could offer a loan of only $1,608,750, of which defendant would receive an initial disbursement of $907,500 (Rutkevitz: A 208-09). On that 17 same date, defendant signed his agreement to the modified loan offer (Rutkevitz: A 209; Bond: A 411-12). On September 15, 2008, the tenants of HDFC each received the following letter, dated August 30, 2008: HDFC Building Owner, Fernando Maldonado 242 South 2nd Street Brooklyn, NY. 11211 8/30/2008 Re: Building Report Dear Tenant or Co-op resident: The purpose of this letter is to assure you that I am not in the process of selling the building. I had appraisers in the building on or about August 25, 2008, because I plan to take out a construction loan through MFC, a mortgage company. I plan to remodel and upgrade the entire building so that you will enjoy having a better living environment. In closing, the rumor going around the building or the letter that you folks received has no merit and is not true. I will notify you when we plan to start the work. Also, I further promise that I will take care of any inconvenience that this may cause you during the remodeling. If you have any questions, feel free to contact me at , or my cell phone [ ], leave your phone number and I will return your phone call. Sincerely, [signature] Fernando Maldonado, Pres. 18 (RA 3 [People’s Exhibit 5]; Andrade: A 80-83, 89).3 The letters from defendant were embossed with a round raised seal, which stated in an outer circle, “242 SOUTH 2ND STREET HOUSING DEVELOPMENT FUND CORP.,” in an inner circle, “PRESIDENT CORPORATION,” and in its center, “SEAL 1985” (People’s Exhibit 5; Andrade: A 83).4 The seal was forged; HDFC’s genuine corporate seal was different and was in Ramos’s possession (Andrade: A 83-84; Ramos: A 326-28). A copy of the letter in Spanish was also attached to each letter from defendant (RA 4; Andrade: A 58-59). The letter from defendant that was addressed to Ramos had a handwritten addendum: “P.S. Management Company, along with Andrade Rosario, have both been terminated your next .. (Dolly) F.M.” (RA 5 [People’s Exhibit 18] [emphasis in original]; Ramos: A 324-26). Dolly was Ramos’s nickname (Ramos: A 326). The copy of defendant’s letter that Andrade received had a handwritten addendum in Spanish stating: “P.S. your fraudulent [or tricky] services are done. We’ll see each other in court” (RA 6 [People’s Exhibit 5]; Andrade: A 84). 3 This letter and the two letters quoted on pages 19-21 of this brief are quoted verbatim, including their blank spaces and spelling errors. 4 The embossed seal is not visible in the photocopy in the respondent’s appendix (RA 3). 19 By letter dated September 15, 2008, Bond, at defendant’s behest, sent to MFC a detailed list of improvements and renovations that defendant intended to perform on the building. The letter also stated that defendant and Bond anticipated that the market value of the building after work on it was completed would be fifteen million dollars (Bond: A 413-15; RA [People’s Exhibit 17, at 79-82]). On September 18, 2008, each resident of the HDFC building received a notarized letter from defendant, stating: Fernando Maldonado-HDFC 242 South 2nd Street Brooklyn, N.Y. 11211 To all tenants: Effective Immediately Del Mar Management & Andrade Rosario have both been terminated from doing any business with 242 South 2nd Street. For several years they have been conducting business transactions without the consent of the building owner which is Fernando Maldonado. At the present moment the owner is in the process of court proceedings with Andrade Rosario, which will be on 9/25/08. Anyone that interferes with any business that the owner tries to do in the building is subject to arrest by the police. The Brooklyn District Attorney has issued an order to Andrade Rosario letting her know that she MUST stay away from the owner while he is on the premises conducting business. Also effective immediately, as of October 1st. 2008 all tenants must send there rent to the owner. NO EXCEPTIONS. Also, anyone that does not send their rent by October 10th, or anyone that does not send rent at all will be subject to legal proceedings by Marshal. Please call Fernando Maldonado at [] so that you can be given instructions as to where you should mail your rent. 20 P.S. please do not disregard this letter it is important that you comply. (RA 11 [People’s Exhibit 6]; Andrade: A 85-86, 127-28). The letter was signed by defendant and bore the same forged seal as the seal on the letter from defendant dated August 30, 2008 (People’s Exhibit 6; Andrade: A 86, 88-89). Attached to the letter, was a copy of another letter, this one dated September 3, 2008, from defendant as “Building Owner” to Del-Mar Management Services: H.D.F.C. Building Owner, Fernando Madlonado 242 South 2nd Street Brooklyn, N.Y. 11211 Re: Dismissal of Management Services Dear Mr. Ellis DelValle or to Whom it Ma Concern: The purpose of this letter is to inform you, your company, or any assistants that are involved with the management of the above property; that your authority is hereby terminated. This notification also includes the future collections of rents, repairs, or new leases, etc. I have also never signed any contracts with your company, received any rent proceeds, bills, etc., nor have I authorized anyone on my behalf to sign any contracts with your firm. I am the current owner and president of this property. I closing, since I have never signed any documents authorizing the management of my property or permitted any partnership arrangements that state that I must give you a 30 day notice; your authority ceases immediately. If you have any questions, feel free to contact me at , or my cell phone [ ], leave your phone number and I will return your phone call. 21 Sincerely, [signature] Fernando Maldonado, Pres. (RA 12 [People’s Exhibit 6]; Andrade: A 87-89). That same day, September 18, 2008, the board of HDFC met to consider whether to place a lien on the building to thwart defendant’s efforts to encumber the property with a mortgage. The board, however, voted to reject placing a lien, because there were HDFC shareholders who were seeking to sell or obtain mortgages on their units, and the efforts of those shareholders would be hampered by a lien (Andrade: A 99-100). Instead, the board, on advice from counsel, voted to again refer the matter to the District Attorney (Andrade: A 100). On September 19, 2008, James Bond sent a check for ten thousand dollars to MFC’s attorney, JODY SALTZMAN, in prepayment for the legal fees that MFC would accrue in finalizing the loan (Saltzman: A 264-65; Bond: A 417-18). Saltzman informed MFC that defendant’s first attorney had stopped communicating with her and that defendant’s second attorney had ultimately declined to continue representing defendant (Saltzman: A 267-68). Saltzman told MFC that she would not close on the loan unless defendant had an attorney (Saltzman: A 267). Saltzman requested defendant to show that he had obtained title insurance for the loan and to provide her with HDFC’s 22 corporate bylaws and organizational documents, as well as any relevant title documents (Saltzman: A 266-69, 281-82). Meanwhile, Saltzman received a report indicating that the property was owned by HDFC (Saltzman: A 270; RA 13-15 [People’s Exhibit 15, at 156-58]). MFC was also waiting for defendant to provide copies of the tenant leases that defendant had been asked to provide (Rutkevitz: A 214-15; Bond: A 424). On September 24, 2008, Bond issued, on defendant’s behalf, a bank check to the Department of Finance for $3,897.31 to cover the costs associated with filing a deed transferring ownership of HDFC to defendant (Bond: A 427). On September 29, 2008, defendant attempted to file with the City Register a quitclaim deed purporting to transfer ownership of 242 South Second Street from HDFC to defendant and HDFC (Bobrow: A 550-62). The City Register rejected the application, because some of the documents that defendant submitted were unsigned (Bobrow: A 551). At some point in September 2008, Rutkevitz and David Hecht of MFC, together with Bond and defendant, conducted a walk- through of the building at 242 South Second Street for approximately forty-five minutes (Andrade: A 98; Rutkevitz: A 209-11; Bond: A 415-16). Later, after defendant and Bond left, Andrade told Hecht and Rutkevitz that “Fernando has no right, he doesn’t own the property,” and referred them to HDFC’s 23 attorney, Lawrence Stern (Andrade: A 98-99; Rutkevitz: A 211). About a day or two later, Rutkevitz consulted with Stern, who told Rutkevitz that defendant did not own the building, that defendant had been evicted from the building many years before, that defendant had previously attempted to mortgage the property, and that Stern “ha[d] a case against Fernando” (Rutkevitz: A 212). On October 6, 2008, Stern contacted Saltzman and informed her that, contrary to defendant’s assertions, Del-Mar Management Company was still the management company for HDFC (Saltzman: A 277-78). Del-Mar provided Saltzman with a copy of the authentic rent rolls, and also provided Saltzman with the names of HDFC’s officers and board members; defendant was not an officer or board member (Saltzman: A 278, 292-93). At some point, Bond contacted Saltzman and told her that he had power of attorney to act on defendant’s behalf and that Bond wanted Saltzman to stop all work on the loan, because Bond now believed that defendant had “duped” him about defendant’s ownership of the property (Saltzman: A 273-74; Bond: A 431-32). On October 8, 2008, in furtherance of Bond’s request to Saltzman, Bond sent an e-mail to Saltzman, in which Bond wrote that he wanted a refund of any money for legal services for which he had paid Saltzman in advance and which Saltzman had not yet performed (Saltzman: A 275-76; Bond: A 431-32). 24 On October 11, 2008, defendant sent to MFC, by facsimile (FAX), a note stating that he was still interested in moving forward with the closing and that he wanted to have the closing “ASAP” (Rutkevitz: A 217-18). By letter dated October 13, 2008, Saltzman informed defendant that, in order to have the closing, defendant would have to retain an attorney and that he would also have to resolve with Bond who had ultimate authority to speak for defendant (Saltzman: A 294-95). By mid-October 2008, Andrade realized that for about the previous ten days HDFC had not received any postal deliveries from the United States Postal Service (Andrade: A 100-01). The Postal Service informed Andrade that defendant had filed with the Postal Service a change of address form for HDFC (Andrade: A 101-03). Because of the change of address form that the Postal Service had received for HDFC, the Postal Service refused to deliver any mail to HDFC at 242 South Second Street until Andrade went to the Post Office and spoke to an official (Andrade: A 103-04). On October 28, 2008, the City Register accepted for filing a quitclaim deed dated October 23, 2008, which purported to transfer ownership of the property at 242 South Second Street from HDFC to defendant and HDFC. The deed was signed, “Fernando 25 Maldonado – Owner” (RA 16-37 [People’s Exhibit 9]; Bobrow: A 562-65; A 854-55). Whether a document submitted for filing would be accepted by the City Register depended on whether the document was “properly notarized and acknowledged” (Bobrow: A 547-48). The City Register would rely on the signatures, acknowledgments, and notarizations on the submitted document, and would make no independent inquiry into the authenticity of the document (Bobrow: A 547-48). A document filed with the City Register served as official “notice to the world” of whatever was stated in the document (Bobrow: A 548, 586-87). The effect of defendant’s filing of the forged deed with the City Register was that it created a “cloud” on HDFC’s title, which, as a practical matter, would continue to prevent HDFC’s shareholders from selling or mortgaging their units, and would prevent HDFC from obtaining a mortgage on the building, unless and until HDFC prevailed in a civil suit to clear the cloud on HDFC’s title (Bobrow: A 548-50). The City Register mailed to HDFC a copy of the deed that the City Register had rejected on September 29, 2008 (Andrade: A 108-11). Andrade, Ramos, and Stern went online to the City Register’s “ACRIS” website, in which the City Register’s records could be viewed, and they discovered the recorded quitclaim deed that defendant had successfully filed on October 23, 2008 26 (Andrade: A 111-13; Ramos: A 328). Stern went to the City Register to attempt to clear the cloud on the title, and Ramos contacted the Attorney General, the Department of Finance, and other governmental agencies (Ramos: A 328-29). The board of HDFC filed a lawsuit to clear the cloud on HDFC’s title. At the time of trial, that lawsuit was still pending, and HDFC had already incurred more than twenty thousand dollars in related legal fees (Ramos: A 329). When Bond, who was unfamiliar with how deeds were recorded in New York City, saw that defendant’s deed was recorded, he believed that defendant must have proved to the government that he owned the property (Bond: A 424-26). Lawrence Stern, HDFC’s attorney, sent Bond a copy of two letters that Stern had sent to the Department of Finance, dated November 12 and November 24, 2008 (Bond: A 429-30; RA 12-14 [People’s Exhibit 17, at 38-40]). The letters stated in substance that defendant was not authorized to act on behalf of HDFC to transfer ownership of HDFC’s property (RA 12-14). By letter dated November 10, 2008, Saltzman notified defendant that MFC was withdrawing its loan offer, because MFC now had serious doubts about defendant’s authority to encumber the property (Rutkevitz: A 220; Saltzman: A 276-79, 282-83). On November 14, 2008, Dora Jaffee, who was an Assistant Commissioner of the Department of Finance, recorded an 27 affidavit, in which she averred, regarding the deed that defendant filed on October 28, 2008, that the property at 242 South Second Street was owned by an HDFC, and that “defendant was not authorized by the HDFC to sign the deed as owner” (Bobrow: A 567-68). Jaffee further stated in the affidavit that, “[u]ntil such time as the purported fraudulent conveyance is nullified, this affidavit shall serve as notice to the public of the possible defect in the chain of title” (Bobrow: A 568). Jaffee’s affidavit, however, had no legal effect, because the City Register could not deem defendant’s deed invalid or otherwise remove it from its records, unless it received a court order directing it to do so (Bobrow: A 568-69, 587-89). At the time of trial, defendant’s quitclaim deed was still on file and still was a cloud on HDFC’s title (Bobrow: A 569). On November 29, 2009, defendant called HDFC board member Migdalia Ramos by telephone at her home and told her that “he [defendant] started this and he’s going to end it” (Ramos: A 329-30). Later that afternoon, Ramos filed a complaint with the local precinct (Ramos: A 329). On February 18, 2009, Detective RAYMOND CASABLANCA arrested defendant at his home. Defendant gathered documents, and Detective Casablanca vouchered those documents (Casablanca: A 628-29). Those documents, among others, included: defendant’s letters to Del-Mar Management and Andrade asserting 28 his ownership of HDFC; a copy of the filed deed; and a letter dated October 27, 2006 to the Attorney General requesting a copy of the original offering plan for HDFC (Casablanca: A 626-35). Defendant did not repay the loan that Bond and his investors had made to defendant (Bond: A 432). Defendant’s Case The defense presented no witnesses or documentary evidence on his behalf (A 681). The Motion to Dismiss and the Charge Conference At the close of evidence, defendant moved for a trial order of dismissal of the charges. With respect to the count of first-degree grand larceny, defendant argued that the evidence was legally insufficient to support a finding that he had stolen the property, because the deed that he filed was a quitclaim deed, and a quitclaim deed only purports to transfer the ownership right that the conveyor has. Accordingly, because defendant had no ownership right to transfer, he transferred nothing, and hence stole nothing (A 637-38, 666). Defendant further argued that the evidence was consistent with a finding that he filed the forged deed solely to obtain a mortgage from MFC, and that the evidence did not show that, by filing the forged deed, he intended to steal ownership of the property from its owners (A 641-42). 29 Defendant also argued that the People failed to show that the portion of the property that defendant sought to convey to himself as an individual was valued in excess of one million dollars, in that the appraisal value of the property introduced at trial was based on faulty information (A 642-43, 662-66). Defendant further argued that, because the conservative appraisal value of the property was $1,975,000, and because defendant purported to transfer to himself, through the deed, a one-half interest in the property, his purported share in the property was less than one million dollars (A 643-44, 661-62). Finally, defendant argued that larceny of real estate can occur only when the owners are physically dispossessed of their property, and in this case the owners were not physically dispossessed of their property (A 678). With respect to the count of attempted grand larceny (relating to MFC), defendant argued that the evidence was consistent with a finding that he believed that his loan application would be rejected (A 645). Defendant further argued that, because the loan application had “red flags,” the evidence was legally insufficient to show that he came dangerously close to completing the larceny (A 646-47). With respect to the count of third-degree grand larceny (relating to Bond), defendant argued that Bond had not 30 personally sustained a loss exceeding three thousand dollars (A 647-48). With respect to the count of criminal possession of a forged instrument, defendant argued that the evidence failed to show that he believed that the deed was a forgery, in that the evidence was consistent with a finding that he had believed that he was engaged in a “legitimate process” (A 650).5 The Verdict, the Motion to Set Aside the Verdict, and the Sentence The jury found defendant not guilty of the count of third- degree grand larceny (relating to defendant’s theft from Bond), and found defendant guilty of the counts of first-degree grand larceny (relating to the unlawful purported transfer of ownership of 242 South Second Street), attempted first-degree grand larceny (relating to the attempt to obtain the MFC loan), and second-degree criminal possession of a forged instrument (relating to the forged deed) (A 849-50). Prior to sentencing, defendant moved, pursuant to C.P.L. § 330.30, to set aside the verdict on the count of grand larceny, on the ground that the trial evidence was legally insufficient to support a conviction on that count (defendant’s appendix). The court denied the motion (A 916-19). 5 Upon consent of the parties, the remaining counts in the indictment were not submitted to the jury (A 649, 650-51). 31 On May 19, 2011, the court sentenced defendant to concurrent terms of imprisonment of three to nine years on the grand larceny count, three to nine years on the attempted grand larceny count, and two to six years on the forged instrument count (defendant’s appendix, sentencing transcript at 13-14). The Appeal Defendant appealed from the judgment of conviction to the Appellate Division, Second Department, asserting, among other claims, that the trial evidence was legally insufficient to support any of the counts on which defendant was convicted. Defendant also asserted that he was denied effective assistance of trial counsel, because counsel failed to preserve for appellate review some of the arguments that defendant raised on appeal relating to his claim that the evidence was legally insufficient to support any of the counts on which he was convicted. By decision and order dated July 2, 2014, the Appellate Division unanimously affirmed the judgment of conviction (A 2- 4). People v. Maldonado, 119 A.D.3d 610 (2d Dep’t 2014). The Appellate Division held that defendant’s claim regarding the legal sufficiency of the evidence to support the grand larceny conviction was partially unpreserved for appellate review, and that, in any event, “when considered in light of the trial 32 court’s charge as given without exception,” the evidence was legally sufficient to support that conviction (A 3). 119 A.D.3d at 610-11. The Appellate Division held that defendant’s contention that the evidence was legally insufficient to establish his guilt of attempted first-degree grand larceny on the ground that the People failed to prove that the value of the loan that defendant attempted to obtain exceeded one million dollars was unpreserved for appellate review, and that, in any event, the evidence was legally sufficient to establish that element of the charged offense (A 3). 119 A.D.3d at 611. The Appellate Division held that defendant’s claim -- that because defendant signed his own name to the deed, he was not guilty of possessing a forged instrument -- was meritless, because “the defendant signed the deed as the owner of the corporation, thereby falsely assuming the identity of the owner and ostensible maker of the deed” (A 3). 119 A.D.3d at 611-12. In addition, the Appellate Division held that defendant was not deprived of the effective assistance of counsel (A 3-4). 119 A.D.3d at 612. By certificate dated June 19, 2015, defendant was granted leave to appeal to this Court from the order of the Appellate Division (A 1). People v. Maldonado, 25 N.Y.3d 1167 (2015) (Lippman, C.J.). 33 POINT I DEFENDANT’S CLAIM THAT THE EVIDENCE WAS LEGALLY INSUFFICIENT TO SUPPORT THE FIRST-DEGREE GRAND LARCENY CONVICTION, BECAUSE, IN HIS VIEW, THE EVIDENCE FAILED TO SHOW THAT HE OBTAINED ANY PROPERTY, IS PARTIALLY UNPRESERVED FOR APPELLATE REVIEW. MOREOVER, DEFENDANT’S CLAIM IS MERITLESS. Defendant raises essentially two arguments in support of his claim that the evidence was legally insufficient to support the taking element of the first-degree grand larceny count. First, he claims that the evidence was legally insufficient to support the taking element, because the deed he filed was a forged deed, and thus void ab initio. In defendant’s view, because the forged deed that he filed was void ab initio, by filing the deed he obtained nothing, and hence stole nothing. Defendant did not raise this argument at trial, and therefore his argument is unpreserved for appellate review, and beyond review of this Court. Moreover, defendant’s argument is meritless. Whether larceny is committed is not dependent on whether an actual transfer of property occurs. Rather, larceny is committed even where only a purported transfer of property occurs. See P.L. §§ 155.00(2), 155.05(1), (2). Accordingly, even though, by filing the forged deed, defendant did not bring about an actual transfer of property, nonetheless, he was guilty of larceny, because, by filing the forged deed, he brought about a purported transfer of property. 34 Second, defendant argues that the evidence was legally insufficient to support the taking element of larceny, because the deed that he filed was a quitclaim deed. In defendant’s view, because a quitclaim deed purports to transfer only such ownership interest that the grantor had, and because defendant had no ownership interest to transfer, by filing the quitclaim deed defendant transferred nothing to himself, and thus he was not guilty of larceny. Defendant’s claim is meritless, because defendant misstates the nature of the transfer that he purported to bring about by filing the quitclaim deed. Contrary to defendant’s assertion, by filing the quitclaim deed, defendant did not purport to bring about a transfer from himself to himself. Rather, by filing the quitclaim deed, defendant purported to transfer an ownership interest from HDFC to himself. Accordingly, because HDFC indisputably did have an ownership interest to transfer, defendant, by filing the quitclaim deed, did unlawfully bring about a purported transfer of property to himself. A. Defendant’s Claim that the Evidence Was Legally Insufficient to Support the First-Degree Grand Larceny Conviction, Because the Forged Deed that He Filed Was Void Ab Initio -- and Thus He Obtained Nothing, and Hence Stole Nothing -- Is Largely Unpreserved for Appellate Review and Is Meritless. Defendant claims that, because the deed that he filed was a forged deed, the evidence was legally insufficient to support 35 the taking element of the first-degree grand larceny count, but that claim is largely unpreserved for appellate review. On appeal, defendant argues that the trial evidence was legally insufficient to support a finding that he committed larceny, because the evidence failed to show that, by filing the forged deed, he unlawfully brought about an actual or even a purported transfer of property (Defendant’s Brief at 25-26, 29-37). See P.L. §§ 155.00(2), 155.05(2). At trial, defense counsel argued that the evidence was legally insufficient to show that defendant unlawfully brought about an actual transfer of property (A 637-40), but counsel did not argue that the evidence was legally insufficient to show that defendant unlawfully brought about a purported transfer of property. Therefore, defendant’s present claim is largely unpreserved for appellate review. In response to counsel’s motion to dismiss the grand larceny count on the ground that there was no actual transfer of property, the prosecutor argued that the evidence was legally sufficient to show that defendant was guilty of larceny, because the evidence showed that defendant had unlawfully brought about a purported transfer of property (A 653). See P.L. §§ 155.00(2), 155.05(2). When the trial court stated that it would reserve decision to consider the merits of the prosecutor’s argument about a purported transfer (A 657), and 36 later when the People again raised the argument (A 666-67), and still later, when counsel moved to reargue after the court denied counsel’s motion (A 678-79), counsel did not alert the court to defendant’s appellate contention, namely, that, because the deed that defendant filed was forged, the filing of the deed did not bring about even a purported transfer of property. Rather, counsel again asserted that defendant was not guilty of larceny, because defendant’s filing of the quitclaim deed did not effect an actual, valid conveyance of title (A 667) and because defendant did not physically dispossess the true owners (A 678-79). On appeal, defendant recognizes that, pursuant to P.L. §§ 155.00(2) and 155.05(2), a person who unlawfully brings about a purported transfer of property, or of a legal interest therein, is guilty of larceny (Defendant’s Brief at 26, 38-42). But, for purposes of defining larceny, defendant seeks to distinguish between a deed that is void ab initio, such as a forged deed is, and a deed that is merely voidable. According to defendant, the issuance of a deed that is void ab initio does not bring about even a purported transfer of property, but rather brings about no transfer at all. By contrast, the issuance of a voidable deed brings about a purported transfer of property. Therefore, according to defendant, because defendant filed a forged deed, and because a forged deed is void ab 37 initio, he did not, by the filing of the forged deed, bring about even a purported transfer of property, and hence, he did not commit larceny (Defendant’s Brief at 25-26, 29-37). In support of his assertion that his appellate claim is preserved for appellate review, defendant quotes a sentence from defense counsel’s motion for a trial order of dismissal: “There’s been no testimony about Mr. Maldonado having ever obtained possession or title to the property” (Defendant’s Brief at 42; see A 637). But counsel’s trial argument in that regard addressed only whether the filing of the deed brought about an actual transfer of property, and that argument in no way addressed whether the filing of the forged deed unlawfully brought about a purported transfer of property. Indeed, counsel did not use at all the words “purported,” “void,” or “voidable” in her motion for a trial order of dismissal of the grand larceny count, or even in her motion for re-argument of that motion. Accordingly, because counsel did not raise at trial defendant’s appellate claim -- that, because a forged deed is void ab initio, defendant’s filing of the forged deed did not bring about even a purported transfer of property -- defendant’s appellate claim is unpreserved for appellate review. In sum, at trial, counsel argued that defendant was not guilty of larceny, because defendant did not effect an actual, valid transfer of property, but on appeal, defendant argues that 38 he is not guilty of larceny because he did not effect even a purported transfer of property. Accordingly, because defendant did not raise at trial the contention that he raises on appeal, his contention is unpreserved for appellate review, and beyond the scope of this Court’s review.6 See N.Y. Const. art. VI, § 3(a); C.P.L. § 470.05(2); People v. Becoats, 17 N.Y.3d 643, 654 (2011) (argument advanced at trial, that evidence was insufficient to support robbery conviction because there was no proof that sneakers were taken from victim, did not preserve argument advanced on appeal, that evidence was insufficient to support robbery conviction because evidence failed to show that defendants used force for the purpose of taking victim’s sneakers); People v. Hines, 97 N.Y.2d 56, 62 (2001); People v. Gray, 86 N.Y.2d 10, 19 (1995) (“even where a motion to dismiss for insufficient evidence was made, the preservation requirement compels that the argument be ‘specifically directed’ at the alleged error”); People v. Norman, 85 N.Y.2d 609, 624 (1995) (because argument that defendant raised on motion for trial order of dismissal of count of larceny by false pretenses was different from argument on appeal for why that count was 6 In her motion for a trial order of dismissal of the first- degree grand larceny count, counsel raised other arguments as well (see supra at 28-29), but those arguments were even further removed from the purported-transfer argument that defendant is raising on appeal. 39 unsupported by legally insufficient evidence, defendant’s appellate claim was beyond this Court’s review). Moreover, defendant’s claim is meritless. Where a defendant argues on appeal that the evidence supporting a conviction was legally insufficient, the evidence should be viewed in the light most favorable to the prosecution to determine whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original); People v. Rossey, 89 N.Y.2d 970, 971 (1997); People v. Contes, 60 N.Y.2d 620, 621 (1983). The People are entitled to every reasonable inference that can be drawn from the evidence. People v. Ford, 66 N.Y.2d 428, 437 (1985). In this case, defendant claims that, because the deed he filed was a forged deed, and thus void ab initio, he is not guilty of larceny. Defendant’s claim is meritless. Evidence is legally sufficient to establish a defendant’s guilt of a charged crime if the evidence is sufficient to establish the elements of the crime as those elements were charged to the jury without exception. People v. Ford, 11 N.Y.3d 875, 878 (2008); People v. Sala, 95 N.Y.2d 254, 260 (2000); People v. Dekle, 56 N.Y.2d 835, 837 (1982) (no due process violation “when there is evidence from which a rational trier of fact could find the essential elements of the crime as those elements were charged to the jury 40 without exception beyond a reasonable doubt” [emphasis in original]). In this case, the evidence was legally sufficient to establish the elements of the larceny count as the elements of that count were charged to the jury without exception. The court instructed the jury: In order for you to find defendant guilty of this crime, the People are required to prove from all the evidence in the case, beyond a reasonable doubt, the following elements: That on or about October 28, 2008, in Kings County and elsewhere . . . , the defendant, Fernando Maldonado, wrongfully obtained real property, title to real property, from its owner -- the real property is located at 242 South 2nd Street, Brooklyn, the owner being 242 South 2nd Street Housing Development Fund Corporation -- by filing a false deed purporting to declare himself and the corporation as joint owners of that real property, that the defendant did so with the intent to deprive the true owner or owners of the property and appropriate the property to himself or a third person and, finally, that the value of the property exceeded one million dollars. (A 789-90). Accordingly, the court’s instruction to the jurors was that, if they found that defendant “fil[ed] a false deed purporting to declare himself and the corporation as joint owners of the real property,” then they could conclude that defendant “wrongfully obtained real property [or] title to real property from its owner” (A 789). Consequently, irrespective of whether a forged deed is void ab initio, the evidence in this case was legally sufficient to establish defendant’s guilt of 41 the larceny count as the court instructed the jury, without exception, on the elements of that count. In any event, defendant was guilty of the larceny count even as the elements of larceny are defined by Penal Law § 155.05. It is true, as defendant asserts, that, under property law, a forged deed is void ab initio. See Faison v. Lewis, 25 N.Y.3d 220, 222 (2015) (“it is well-settled that a forged deed is void ab initio, meaning a legal nullity at its inception”). But, contrary to defendant’s assertion, it is not true that, because defendant filed a forged deed, he was not guilty of larceny. Defendant was convicted of Grand Larceny in the First Degree (P.L. § 155.42). Penal Law § 155.42 provides that “[a] person is guilty of grand larceny in the first degree when he steals property and when the value of the property exceeds one million dollars.” Penal Law § 155.05(2) provides that “[l]arceny includes a wrongful taking, obtaining or withholding of another’s property, with the intent prescribed in subdivision one of this section, committed in any of the following ways: (a) By conduct heretofore defined or known as . . . obtaining property by false pretenses.” Penal Law § 155.00(1) provides, in pertinent part, that “‘[p]roperty’ means any . . . real property.” Penal Law § 155.00(2) provides that, for purposes of Penal Law article 155, the term “‘[o]btain’ includes, but is not 42 limited to, the bringing about of a transfer or purported transfer of property or of a legal interest therein, whether to the obtainer or another.” Accordingly, contrary to defendant’s assertion, the determination of whether he committed larceny is not dependent on whether, under property law, he brought about an actual transfer of property by the filing of the deed. Rather, the determination of whether defendant was guilty of larceny is dependent on whether his conduct satisfied the elements of larceny as defined by the Penal Law, which provides that a person is guilty of larceny when the person unlawfully brings about by false pretenses a “purported transfer of property or of a legal interest therein.” P.L. §§ 155.00(2), 155.05(2) (emphasis added). Therefore, because, by filing the forged deed with the City Register, defendant unlawfully brought about through false pretenses a purported transfer of the ownership of the property, or of a legal interest therein, to himself, defendant was guilty of larceny. Despite the unambiguous language of Penal Law § 155.00(2) -- which expressly and plainly provides that a person is guilty of larceny when the person wrongfully brings about a purported transfer of property or of a legal interest therein -- defendant argues that, to be guilty of larceny, “some actual transfer must take place” (Defendant’s Brief at 38). Defendant asserts that, 43 because, in his view, to be guilty of larceny, an actual transfer must occur, “[a] ‘purported transfer’ therefore cannot be premised only on the appearance of obtaining title to property” (Defendant’s Brief at 38 [emphasis in original]). According to defendant, a void transfer is not a purported transfer, but rather, “is no transfer at all” (Defendant’s Brief at 38-39). In defendant’s view, a purported transfer would include the filing of a voidable deed, but would not include the issuance of a void deed (as was issued in this case). Because, under property law, the issuance of a voidable deed effects an actual transfer of ownership, and because the transfer of ownership under that circumstance may later be rescinded by its prior owner, according to defendant the filing of a voidable deed effects a “purported” transfer of ownership, rather than an actual transfer of ownership (Defendant’s Brief at 39). But, according to defendant, because a forged deed is void ab initio, the filing of a forged deed affects no transfer of property, actual or purported (Defendant’s Brief at 39). Defendant’s argument is meritless. Defendant ignores the plain and unambiguous language of the relevant Penal Law statute, which provides that a person “obtain[s]” something by the “bringing about of a transfer or purported transfer of property or of a legal interest therein.” P.L. § 155.00(2). 44 According to Black’s Law Dictionary, the verb “purport” means “To profess or claim, esp. falsely.” Black’s Law Dictionary 1356 (9th ed. 2004); see also Merriam-Webster’s Collegiate Dictionary 1011 (11th ed. 2003) (defining “purport” as “to have the often specious appearance of being, intending, or claiming (something implied or inferred)” [quoted in Defendant’s Brief at 39]). Thus, according to the plain meaning of the statute, a person brings about a purported transfer of property when that person makes a claim, whether true or false, that the property has transferred. See P.L. § 155.00(2). Therefore, irrespective of whether the filing of the forged deed actually transferred any property to defendant, defendant was guilty of larceny, because he brought about a purported transfer of property or of a legal interest therein to himself, in that, by filing the forged deed, he falsely professed or falsely claimed the transfer of the property or an interest therein to himself. Furthermore, defendant’s assertion that the Legislature, by including the phrase, “purported transfer of property” in the Penal Law’s definition of “obtain,” intended only to include acts that under property law are voidable but not those that under property law are void, is untenable. Under property law, a voidable deed effects an actual transfer of property, and not merely, as defendant contends, a purported transfer of property. See Real Prop. Law § 266. Accordingly, if a person is induced 45 by fraud to transfer ownership of property to a second person, and the second person then sells or mortgages the property to a third person acting in good faith, the first person has no recourse against the third person, and the title or mortgage held by the third person remains valid, and not voidable. Thus, contrary to defendant’s assertion, a voidable deed effects an actual transfer of a property right, and not merely a purported transfer. See Real Prop. Law § 266 (rights of purchaser or incumbrancer for valuable consideration are protected, “unless it appears that he had previous notice of the fraudulent intent of his immediate grantor, or of the fraud rendering void the title of such grantor”); Carr v. Maltby, 165 N.Y. 557, 562 (1901) (“When the owner of land executes and delivers to another a deed of it, the title passes to the grantee named therein, although the former was induced by fraud to execute and deliver the instrument. The deed is not void, but voidable, and, until set aside, it has the effect of transferring the title to the fraudulent grantee, and the latter being thus clothed with all the evidences of good title may incumber the property to a party who becomes a purchaser in good faith” [citation and internal quotation marks omitted]); 43A N.Y. Jur. 2d, Deeds § 218, at 135 (2007) (“a deed obtained by fraud of the grantee passes a voidable title to the grantee, who, being thus clothed with all 46 the evidence of good title, may transfer or encumber the property to a party who becomes a purchaser in good faith”). Therefore, because the Legislature defined larceny to include the bringing about of a transfer of property, both actual and purported, and because a transfer based on a voidable deed is an actual transfer, the Legislature must have intended to include as larceny an ostensible transfer that is void -- because an ostensible transfer that is void, albeit not an actual transfer, is a purported transfer. Defendant argues that the Legislature could not have intended for an unlawful issuance of a void deed to be deemed a completed larceny, because the issuance of a void deed effects no actual transfer of property, and thus, in defendant’s view, the issuance of a void deed constitutes at most an attempted larceny (Defendant’s Brief at 40). Defendant did not raise this claim at trial, and thus, defendant’s claim is beyond the review of this Court. See N.Y. Const. art. VI, § 3(a); C.P.L. § 470.05(2). Moreover, defendant’s claim is meritless. Again, the Legislature, by defining the word “obtain” to include the bringing about of even a purported transfer of property, clearly intended for the completed crime of larceny to include a purported transfer of property, even where no property was 47 actually transferred, but where property was only purportedly transferred. Contrary to defendant’s claim (Defendant’s Brief at 40), the enactment of the theft of services statute, Penal Law § 165.15(1), belies defendant’s argument that, because the issuance of a forged deed does not actually transfer property, the Legislature could not have intended for the issuance of a forged deed to constitute a completed larceny. The Legislature, in enacting Penal Law § 165.15(1), expressly included within the definition of a completed theft of services, an attempt to obtain a service by using a credit card that the user knows to be stolen. P.L. § 165.15(1). Thus, under Penal Law § 165.15(1), a person’s guilt of the completed crime of theft of services is not dependent on whether the person actually received the service. Rather, the person is guilty of the completed crime as soon as he tenders for the intended service a credit card that he knows to be stolen. Id. Hence, it is clear that the Legislature did not categorically intend to exclude from the definition of a completed theft any case in which the person did not actually achieve his or her intended result. Accordingly, defendant’s argument -- that because his issuance of the forged deed did not actually transfer the property to him, and thus he did not actually achieve his intended result of transferring ownership of the property to himself, the 48 Legislature could not have intended for his act to be deemed a completed larceny -- is meritless. Defendant further argues that, if the Legislature had intended to include within the definition of a completed larceny the issuance of a forged deed, which does not actually transfer ownership, but only purports to transfer ownership, then the Legislature would have drafted the statute, as the Legislature did under Penal Law § 165.15(1), to provide explicitly that an “attempt” to transfer property constitutes the completed crime of larceny. In defendant’s view, because the Legislature provided only that a “purported transfer of property” constitutes larceny, but did not provide that an “attempt” to transfer property constitutes larceny, the Legislature must have intended to exclude from the definition of a completed larceny the issuance of a forged deed, which does not actually effect a transfer of the property (Defendant’s Brief at 40). Defendant’s argument is meritless. If the Legislature had drafted the statute to provide that a person is guilty of a completed larceny even where the person only attempted to transfer property, then the definition of a completed larceny would have included not only a circumstance, as in this case, in which a person’s tender of a forged deed for filing was accepted, but also, a circumstance in which a person’s tender of a forged deed for filing was rejected. But 49 unlike the crime of theft of services, with respect to which the Legislature intended that the crime be deemed completed upon the tender of the stolen credit card, the Legislature apparently did not intend that the crime of larceny be deemed completed merely upon the tender of a forged deed for filing. Rather, the Legislature apparently intended that the crime of larceny be deemed complete only upon acceptance of a forged deed for filing, at which point a purported transfer of the property is actually brought about. In sum, presumably the Legislature referred to a “purported transfer of property,” rather than to an “attempted transfer of property,” because the Legislature intended for the crime of larceny to be complete when a person actually brings about a purported transfer of property, but not where a person unsuccessfully attempts to bring about a transfer of property. And, in this case, in which defendant’s tender of the forged deed was actually accepted for filing -- and the forged deed in fact was filed -- the crime of larceny was complete, because defendant did not merely attempt to bring about a purported transfer of property; rather, he actually brought about a purported transfer of property. Additionally, defendant has failed to show that the Legislature could not have intended for the word “purport[]” in Penal Law § 155.00(2) to have a meaning synonymous with the word 50 “attempt[]” in Penal Law § 165.15(1). Defendant fails to cite any authority, and respondent is unaware of any authority, for the proposition that the Legislature could not have intended synonymous meanings for two different words, especially where, as in this case, the two synonymous words are in two different articles of the Penal Law: the word “purported” is in Penal Law article 155, and the word “attempts” is in Penal Law article 165. In any event, Penal Law § 155.00(2) provides that, for purposes of defining the offenses of larceny, the meaning of the word “‘[o]btain’ includes, but is not limited to, the bringing about of a transfer or purported transfer of property or of a legal interest therein, whether to the obtainer or another” (emphasis added). Accordingly, because the Legislature has explicitly provided that the term “obtain” may include even definitions not expressly provided by the statute, and because the People’s theory on how defendant may be deemed to have “obtain[ed]” the property appears to fit the Legislative intent, defendant may be deemed to have obtained the property irrespective of whether the filing of the forged deed constituted a purported transfer of the property. Thus, in this case, irrespective of whether filing of a forged deed constitutes a purported transfer of property, defendant should be deemed to have “obtain[ed]” the property, because the 51 unrestricted definition of the word “obtain” provided by Penal Law § 155.00(2) should be deemed broad enough to include within its meaning the circumstances of this case, where defendant filed a forged deed and thereby announced to the world that he was an owner of the property, and where defendant materially interfered with the ownership interests of its true owners (see infra at 61-63). Defendant argues that the acceptance of the People’s theory -- that filing of a forged deed constitutes larceny -- would lead to “absurd results,” because, if the People’s theory were accepted, then “anyone could walk into a recording office” and extinguish the property rights of an owner of real property “by simply filing a void deed” (Defendant’s Brief at 30). But defendant’s argument is meritless. It is true, as a matter of real property law, that the filing of a forged deed does not convey property rights superior to that of the true owner. See Faison, 25 N.Y.3d at 224-27. And thus, in that sense, no one “could walk into a recording office” and extinguish the real property rights of the owner “by simply filing a void deed.” Indeed, in that circumstance, the prior owner would remain the true owner, maintaining property rights superior to anyone else. But, that does not mean that the Legislature could not have decided to criminalize, as larceny, conduct falling short of what would be necessary, as a matter of real property law, to 52 extinguish the property rights of the real owner. As argued above, the crime of larceny may be committed even where the prior owner remains the owner, so long as the perpetrator has wrongfully obtained a property right, because the word “obtain” is broadly defined by Penal Law § 155.00(2) to include even circumstances where there is no actual transfer of property or where there is no actual extinguishment of the true owner’s property rights. In short, although it would be absurd if a person could extinguish another person’s property right merely by filing a forged deed, that absurdity does not compel a conclusion that a person cannot be guilty of larceny by filing a forged deed. Where a person files a forged deed, the true owner remains the owner, but the person who filed the forged deed is nonetheless guilty of larceny, because that person, by filing the forged deed, wrongfully obtains a property right, within the meaning of the word “obtain” as defined in the Penal Law. See P.L. § 155.00(2), 155.05(2). The decision in Commonwealth v. Figueroa, 859 A.2d 793 (Pa. Super. Ct. 2004), is instructive. In Figueroa, the Pennsylvania Superior Court affirmed a conviction for larceny by deception where the defendant filed a forged deed under circumstances that were not materially different from the circumstances of this case. In Figueroa, after the owner of a home died, the 53 defendant, who did not own the home, gave to his accomplice a forged deed to the home, and together they filed the deed. Figueroa, 859 A.2d at 796. The defendant was convicted of theft by deception. Id. at 796-97; see 18 Pa. Cons. Stat. § 3922. On appeal, the defendant argued that he was not guilty of larceny, because the evidence showed that the home was in the actual possession of a squatter. Figueroa, 859 A.2d at 797. The appellate court rejected the defendant’s argument, holding that evidence that the home was possessed by a squatter was not a defense to the crime of theft by deception. Id. The court explained that, pursuant to the statute, theft by deception is committed when a person unlawfully “bring[s] about a transfer or purported transfer of legal interest in property, whether to the obtainer or another.” Id. Accordingly, because the defendant “was involved in a criminal conspiracy to transfer a legal interest in a property . . . via two forged deeds,” “the squatter’s actual possession of the property [was] immaterial to the criminal charge of theft by deception.” Id. Similarly, in this case, the fact that the deed was forged and the fact that, after defendant filed the forged deed, the owners of HDFC remained as tenants in actual possession of the property is not a defense to defendant’s larceny charge, because, irrespective of whether defendant obtained possession of the property, defendant, by filing the forged deed, 54 unlawfully brought about a purported transfer of ownership to the property. Defendant’s reliance on People v. Sanders, 67 Cal. App. 4th 1403 (1998), is misplaced. In Sanders, the California Grand Theft statute under which the defendant was convicted was critically different from the statute under which defendant in this case was convicted. Unlike New York Penal Law § 155.00(2), the California statute did not provide that a person could commit that offense by bringing about a purported transfer of property. Id. at 1411; see also Cal. Penal Code (former) § 487(1); Cal. Penal Code § 484(a). Thus, in Sanders, the California statute under which the defendant was convicted did not criminalize the act committed by the defendant, namely, the purported transfer of property. See Sanders, 67 Cal. App. 4th at 1412. Accordingly, in Sanders, because the deed was void, and therefore the filing of the deed did not bring about an actual transfer of the property -- and because, under the California statute, a purported transfer of property did not suffice to meet the elements of the offense -- reversal of the conviction in Sanders was required. Id. In this case, in stark contrast, because defendant was charged under Penal Law § 155.42, which provides that a person can be guilty of the offense defined in that provision by unlawfully bringing about a purported transfer of property, see 55 P.L. § 155.00(2), and because defendant did in fact unlawfully bring about a purported transfer of property, he was guilty of committing the offense defined in that provision. Thus, because the decision in Sanders rested on a statute that was critically different from the applicable statute in this case, defendant’s reliance on Sanders is misplaced. Defendant’s reliance on Marden v. Dorthy, 160 N.Y. 39 (1899), is likewise misplaced. Unlike this case, Marden was a civil case. In Marden, the daughter and son-in-law of the owner of a home filed a forged deed that purported to convey the home from the owner to them. The daughter and son-in-law then took two loans from a bank and purported to give the home as collateral. When the borrowers defaulted on the loans, the bank sought to foreclose on the property. Id. at 43-44. This Court held that, because the deed held by the borrowers was void, the borrowers had no valid interest in the home to convey to the bank, and, in turn, the bank had no valid interest in the home. Id. at 47-58. Accordingly, this Court held that, because the bank had no valid interest in the home, the bank could not foreclose on the home. Id. The questions presented in Marden were whether the filing of a forged deed effects an actual transfer of property, and whether the filing of a forged deed estops the true owner of the property from raising an ownership claim. This Court, in 56 rejecting the notion that the filing of a forged deed would effect a transfer or would estop the owner, provided the text quoted by defendant (Defendant’s Brief at 30-31): All that will be necessary for the criminal to do in order to feloniously appropriate to his own use the real property of another, is to fabricate a deed that shall contain the signature of the true owner, genuine if possible, by any trick or artifice, but if not, then simulated, since that will be just as good. The next step will be to procure a notary to attach to it a false certificate that the owner acknowledged it before him, and then file it in the clerk’s office. It will not be necessary that the true owner should ever see the paper or deliver it to any one. If the grantee named in this false paper should be able to find a bank or an individual willing to loan money on the faith of such a record as [the true owner’s daughter] did in this case, the theft will be complete, since the title of the true owner will be extinguished by the bona fide intentions of the deluded money lender, or the owner will be estopped by reason of the confidence which it is said may have been reposed in the record of a crime. Id. at 57. The issue in this case is altogether different from the civil property-law question addressed in Marden, which was whether the bank could foreclose on the home. In this case, the question presented is whether a person who files a forged deed can be found guilty of larceny for the filing of that deed. Accordingly, because, pursuant to Penal Law § 155.05, a person can be found guilty of larceny even where no actual transfer of the property occurs, defendant’s reliance on Marden, which held 57 that the filing of the forged deed did not effect an actual transfer of the property, is misplaced. Defendant also claims that he is not guilty of larceny, because, in his view, a person “purports” to do something only if someone is misled by the purported act, and, in this case no one was misled by defendant’s filing of the deed, because neither he himself nor any of the HDFC shareholders believed that defendant was an owner of the building (Defendant’s Brief at 39). Defendant’s claim is unpreserved for appellate review, because defendant did not raise this claim at trial, and thus defendant’s claim is beyond the jurisdiction of this Court. See N.Y. Const. art. VI, § 3(a); C.P.L. § 470.05(2). Moreover, defendant’s claim is meritless. First, the Penal Law does not require that, to constitute a “purported transfer of property,” someone must actually be misled. See P.L. § 155.00(2). Defendant’s reliance on the definition of “purport” provided by the Merriam-Webster Dictionary is unpersuasive. The definition for the word “purport” given by that dictionary is “to have the often specious appearance of being, intending, or claiming (something implied or inferred)” (Defendant’s Brief at 39). But nothing in that definition requires that someone actually be misled. Indeed, defendant paraphrases the dictionary definition by asserting that “[o]ne ‘purports’ to do something when one falsely claims to do it” 58 (Defendant’s Brief at 39), but nothing in the paraphrasing of the definition that defendant himself provides suggests that someone has to believe the false claim. Indeed, a falsehood is false regardless of whether anyone believes it.7 Second, anyone other than defendant and the HDFC shareholders who examined the recorded chain of title could have been misled into believing, from the recorded forged deed that defendant filed, that defendant was now an owner of the property. Indeed, Bond testified that he was misled by the recorded forged deed into believing that defendant was actually an owner of the property (Bond: A 424-26). Hence, by filing the forged deed, defendant brought about a purported transfer of the property, even under defendant’s interpretation of the word “purported,” namely, that something is purported only if it actually misleads someone. Defendant also relies on People v. Termotto, 81 N.Y.2d 1008 (1993), which, he claims, stands for the proposition that there can be no larceny by false pretenses unless the defendant “obtained title or possession” (81 N.Y.2d at 1009 [citations and internal quotation marks omitted]; Defendant’s Brief at 38, 41). 7 Similarly, consistent with the definition of the verb “purport” provided by Black’s Law Dictionary -- “To profess or claim, esp. falsely” (Black’s Law Dictionary 1356 [9th ed. 2004]) -- a person can purport to do something without actually misleading anyone. 59 Defendant’s reliance on Termotto is misplaced. In Termotto, there was no dispute on appeal that the defendant had obtained possession of the stolen money (see Termotto, 81 N.Y.2d at 1009), and thus this Court had no occasion in Termotto to consider the question presented by this case, namely, whether, under P.L. § 155.00(2), the issuance of a forged deed brings about a “purported transfer of property.” B. Defendant’s Additional Claim, that the Evidence Was Legally Insufficient to Support the First-Degree Grand Larceny Conviction, Because the Deed that He Filed Was a Quitclaim Deed, and Thus, He Obtained Nothing and Hence Stole Nothing, Is Meritless. Defendant also claims that he is not guilty of larceny, because he filed only a quitclaim deed, and a quitclaim deed purports to transfer only such ownership interest as the conveyer had. Defendant argues that, because he had no legal title in the property whatsoever, the quitclaim deed purported to convey nothing at all (Defendant’s Brief at 33). Defendant’s claim is meritless. Defendant, in raising the claim, mischaracterizes the nature of the purported transfer that he brought about by filing the quitclaim deed. By filing the quitclaim deed, defendant did not, as defendant asserts, purport to convey an ownership interest in the property from himself to himself. Rather, defendant, by filing the quitclaim deed, purported to transfer 60 an ownership interest from HDFC to himself (A 854-55). Accordingly, because HDFC indisputably had an ownership interest in the property, the quitclaim deed that defendant filed purported to transfer an ownership interest from an entity, HDFC, that actually had an ownership interest to transfer. Notably, the recorded deed from 1985 -- in which title was conveyed from the City to HDFC -- showed that defendant was the president of HDFC, and that he was an authorized signatory. Accordingly, anyone viewing the quitclaim deed together with the 1985 deed could have been misled into concluding that defendant had the authority to transfer HDFC’s ownership interest in the property. * * * When defendant held himself out as owner of the property, he materially interfered with the owners’ property rights. By filing the forged deed, and by wrongfully holding himself out to be the owner of the property, defendant effectively caused HDFC to be unable to obtain a mortgage or perform necessary repairs, such as pointing the facade of the building. Defendant obtained a DOB stop-work order by claiming that he was the owner of the property and that he had not authorized the ongoing work to be performed. As result of defendant’s acts in this regard, the true owners were legally prevented from having necessary repairs 61 performed on the building, and they were required to pay thousands of dollars in fines and legal fees (Andrade: A 63-66, 118; Ramos: A 322-23; Adler: A 352-59). The individual residents and shareholders of HDFC were also effectively prevented by defendant’s filing of the forged deed from obtaining mortgages on their property interests and from selling their property interests to others (Andrade: A 99-100; Bobrow: A 568-69, 587-89). Indeed, at the time when defendant was actively interfering with the property interests of the owners, the HDFC board voted on whether to place a lien on the property to prevent defendant from mortgaging the property, but the board voted not to place a lien, because there were shareholders who were then seeking to obtain a mortgage and those who were trying to sell their property interests, and because a lien on the property at large would have prevented those shareholders from being able to obtain a mortgage or from selling their individual property interests (Andrade: A 99-100). Thus, the interference with the owners’ continued rights that defendant caused by filing the deed was not merely a theoretical interference. Rather, because there were shareholders who were then trying to sell their units and shareholders who were trying to mortgage their units, defendant’s filing of the forged deed as a practical matter prevented the shareholders from doing so, and caused actual harm to those individual shareholders. 62 Even at the time of trial, the defendant’s forged deed was still on file with the City Register and was still a cloud on the owners’ titles, preventing the shareholders from obtaining mortgages or selling their property interests (Bobrow: A 568-69, 587-89). Thus, defendant’s interference with the property rights of the owners was not, as defendant characterizes it, merely a “nuisance” (Defendant’s Brief at 28).8 In sum, defendant’s claim that the evidence was legally insufficient to support the taking element of the first-degree grand larceny count is partially unpreserved for appellate review. Moreover, defendant’s claim is meritless. 8 To the extent that defendant may be claiming that he was denied effective assistance of counsel by counsel’s failure to preserve all of defendant’s claims for review, the claim, as argued below (see infra at 74-77), is meritless. 63 POINT II DEFENDANT’S CLAIM THAT, BECAUSE THE EVIDENCE FAILED TO SHOW THAT THE PROPERTY OWNERS RELIED ON HIS FALSE PRETENSES, THE EVIDENCE WAS LEGALLY INSUFFICIENT TO SUPPORT THE FIRST-DEGREE GRAND LARCENY CONVICTION, IS UNPRESERVED FOR APPELLATE REVIEW. MOREOVER, DEFENDANT’S CLAIM IS MERITLESS. Defendant also claims that he is not guilty of the grand larceny count, because the People’s trial theory was that defendant committed larceny by false pretenses; because, in defendant’s view, a person is not guilty of larceny by false pretenses unless the owner relied on the person’s false pretenses; and because, in this case, the evidence did not show that the owners relied on defendant’s false pretenses (Defendant’s Brief at 43-51). Defendant’s claim is unpreserved for appellate review and meritless. Defendant’s claim is unpreserved for appellate review, and thus outside the jurisdiction of this Court. See N.Y. Const. art. VI, § 3(a); C.P.L. § 470.05(2). Indeed, defendant expressly recognizes that the defense did not raise this claim at trial: “Mr. Maldonado’s trial counsel did not raise this issue during trial . . .” (Defendant’s Brief at 48). Accordingly, defendant’s lack-of-reliance claim is unpreserved for appellate review. Defendant, nevertheless, argues that the reliance claim is preserved for appellate review, because the defense raised the 64 claim in a motion, made pursuant to Criminal Procedure Law § 330.30, to set aside the verdict (Defendant’s Brief at 48). Defendant’s preservation argument is meritless. A claim raised for the first time in a motion made pursuant to Criminal Procedure Law § 330.30 does not preserve a legal-insufficiency claim for appellate review. See People v. Davidson, 98 N.Y.2d 738, 739-40 (2002); People v. Hines, 97 N.Y.2d 56, 61 (2001); People v. Laraby, 92 N.Y.2d 932 (1998); People v. Padro, 75 N.Y.2d 820 (1990). Defendant asserts (Defendant’s Brief at 48) that in People v. Hughes, 22 N.Y.3d 44 (2013), this Court effectively overruled its prior precedent, and held that a defendant can preserve for appellate review a legal-insufficiency claim by raising that claim for the first time in a motion to set aside the verdict. Defendant’s assertion is incorrect. It was only under the peculiar circumstances present in Hughes -- circumstances that are not present in this case -- that this Court held that the defendant’s post-verdict motion in Hughes preserved the defendant’s legal-sufficiency claim for appellate review. In Hughes, this Court noted that, although the defendant raised his legal-insufficiency claim in a post-verdict motion made pursuant to C.P.L. § 330.30, the defendant, under the peculiar circumstances of that case, could have properly preserved the underlying premise of his claim, even post- 65 verdict, by raising that underlying premise in a post-verdict motion to dismiss the indictment, pursuant to C.P.L. § 210.20. Hughes, 22 N.Y.3d at 49. Accordingly, this Court held in Hughes that the fact that the defendant “may have put the wrong section number -- CPL 330.30 rather than 210.20 -- on his motion papers” should not preclude review of his claim as a matter of law. Id. In this case, in contrast to Hughes, the underlying premise that defendant raised in his post-verdict motion could not properly have been used to support a motion pursuant to C.P.L. § 210.20 to dismiss the indictment. The indictment in this case did not delineate any particular theory of larceny, but rather charged defendant generally with committing Grand Larceny in the First Degree as defined by Penal Law § 155.42 (A 6). Accordingly, because defendant could not properly have raised in his post-verdict motion a claim that the indictment was defective on the ground there was no evidence to support a finding that defendant committed larceny by false pretenses, defendant’s reliance on Hughes is misplaced. Consequently, defendant’s claim that the People failed to prove the reliance element of larceny by false pretenses is unpreserved for appellate review, and therefore beyond the review of this Court. See N.Y. Const. art. VI, § 3(a); C.P.L. § 470.05(2). Moreover, defendant’s claim is meritless. The evidence was legally sufficient to establish the elements of the larceny 66 count as the elements of that count were charged to the jury without exception. See Ford, 11 N.Y.3d at 878; Sala, 95 N.Y.2d at 260; Dekle, 56 N.Y.2d at 837. The court, in instructing the jurors on the first-degree grand larceny count, did not instruct them that, to find defendant guilty of that count, they would have to find that the owners relied on defendant’s false pretenses. Rather, the court instructed the jurors, in pertinent part, that they could find defendant guilty of that count if they found that: the defendant, Fernando Maldonado, wrongfully obtained real property, title to real property, from its owner . . . by filing a false deed purporting to declare himself and the corporation as joint owners of that real property, that the defendant did so with the intent to deprive the true owner or owners of the property and appropriate the property to himself or a third person and finally, that the value of the property exceeded one million dollars. (A 789-90). Accordingly, when instructing the jurors on what specifically they would have to find in order to find defendant guilty of that count, the court omitted any requirement of a finding of reliance. Consequently, because the court, without 67 objection, omitted the reliance element of that count, the People were not required to prove reliance.9 Moreover, irrespective of how the trial court instructed the jury without exception, the evidence was legally sufficient to support a finding that defendant was guilty of larceny as defined by Penal Law § 155.05(2). The definitions and principles of common-law larceny -- which have been incorporated into the Penal Law (see P.L. § 155.05[2][a]) -- are not static, but rather have evolved, and continue to evolve, with the needs of society and changing circumstances. See People v. Olivo, 52 N.Y.2d 309, 315-19 (1981) (tracing evolution of definitions and principles of crime of larceny). This Court -- if it reaches the issue (which, for the reasons stated above [see supra at 63-67], it should not) -- should hold that, with the enactment of Penal Law §§ 155.00(2) and 155.05(2), under which an actual transfer of property is no 9 The court, prior to instructing the jurors on what specifically they would have to find in order to find defendant guilty of grand larceny, gave them definitions of terms relating to larceny, including that “[a] person wrongfully obtains property from an owner when that person makes a false representation . . . and obtains possession entitled [sic] to the property as a result of the owner’s reliance upon such representation” (A 784-85). But, as quoted in the body of this argument, when instructing the jurors on the specific elements that they would have to find in order to find defendant guilty of the larceny count, the court omitted any requirement of a finding of reliance by the owners. 68 longer required, and a purported transfer of property suffices, the definition of the crime of larceny by false pretenses has evolved, such that reliance by the owner on the defendant’s false statements is no longer always required. See People v. Foster, 73 N.Y.2d 596, 604 (1989) (“Penal Law § 155.05[2] broadly ‘includes’ every common-law larceny offense, as more expansively defined by the Legislature [Penal Law § 155.00], together with several statutory offenses not previously considered larceny by the courts” [emphasis added]); People v. Alamo, 34 N.Y.2d 453, 459 (1974) (“not since 1942 have we in this jurisdiction been strictly bound to the ancient common-law concepts of larceny”). The reliance element of larceny by false pretenses, as the definition of the crime of larceny by false pretenses now stands after Penal Law §§ 155.00(2) and 155.05 were enacted, should be limited to circumstances where an owner voluntarily transfers ownership in the property, although the owner knows that the person’s pretenses are false or the owner is altogether indifferent to whether the pretenses are false. In either of those situations, even though a person makes a false statement in order to acquire the owner’s property, no larceny should be deemed to have been committed, because the owner was not induced to transfer ownership of the property based on the person’s statement; rather, the owner voluntarily decided to transfer 69 ownership of the property to the person regardless of whether the person’s proffered pretenses were false. See 3 Wayne R. LaFave, Substantive Criminal Law § 19.7(c), at 122 (2d ed. 1986). When larceny required an actual transfer of property, and a purported transfer of property did not suffice (as it now does), larceny by false pretenses could not occur unless it was the owner who transferred the property in reliance on the false pretenses. Id. at 122-23. Presumably, this was so because, if a person filed a forged deed without inducing the owner to transfer the property, then the deed would be void. Accordingly, because the deed would be void, no actual transfer of property would occur, and hence no larceny would occur, because, at that time under the common law, larceny could be committed only by the bringing about of an actual transfer of property, and not merely by the bringing about of a purported transfer of property. Consequently, prior to the enactment of Penal Law § 155.00(2), no larceny by false pretenses could occur unless it was the owner who relied on the false pretenses. But as the law now stands, larceny can be committed by bringing about a purported transfer of property (see P.L. §§ 155.00[2], 155.05[2]), and thus even a void transfer of property can constitute larceny. Consequently, for larceny to be committed, there no longer is a need for the owner to 70 transfer the property. Accordingly, as the law now stands, if a person unlawfully brings about a purported transfer of property through false pretenses, then irrespective of whether it was the owner who relied on the false pretenses, the crime of larceny by false pretenses should be deemed to have been committed. And the reliance element of larceny by false pretenses should be deemed to negate a finding of larceny only where an owner voluntarily decides to transfer a property right either knowing that, or indifferent to whether, the pretenses proffered to induce the transfer were false. Thus, even if, after the enactment of Penal Law § 155.00(2) and Penal Law § 155.05(2), larceny by false pretenses still requires reliance, the People should be able to satisfy the reliance element by showing that the City Register relied on the false pretenses. Again, when larceny required an actual transfer of property, a person’s having induced the City Register by false pretenses to file a forged deed could not have satisfied the elements of larceny, because the filing of a forged deed did not effect an actual transfer of property (only a purported transfer). But now that the law has been changed, so that even a purported transfer of property may satisfy the elements of larceny, there is no longer a reason to limit the common-law crime of larceny by false pretenses so strictly that reliance by the City Register in this case cannot satisfy the 71 reliance element (see A 908-09 [trial court’s decision on defendant’s C.P.L. § 330.30 motion]). Indeed, the Model Penal Code has eliminated the element of reliance by the owner. The Model Penal Code has consolidated various theft offenses relating to false pretenses into a unitary offense of “Theft by Deception.” See Model Penal Code and Commentaries § 223.3, comment at 180 (Official Draft and Revised Comments 1980). Model Penal Code § 223.3 provides, in pertinent part: A person is guilty of theft if he purposely obtains property of another by deception. A person deceives if he purposely: (1) creates or reinforces a false impression, including false impressions as to law, value, intention or other state of mind; but deception as to a person’s intention to perform a promise shall not be inferred from the fact alone that he did not subsequently perform the promise. See Model Penal Code and Commentaries § 223.3, at 179. Thus, under the Model Penal Code, a person who obtains property through deceit is guilty of theft, irrespective of whether it was the owner who was deceived. See State v. Pittman, 2015 Iowa App. LEXIS 81, at *15-*17 (Ct. App. Feb. 11, 2015) (joining several sister states in holding that theft by deception statute based on Model Penal Code “does not require the identity of the victim to be an element of the crime; nor does theft by 72 deception require that the theft be perpetrated on the owner of the property”). Defendant argues that, even if reliance by the City Register can suffice to satisfy the reliance element, the City Register did not, in defendant’s view, rely on defendant’s false pretenses. Defendant asserts that, because the evidence showed that the City Register would not perform any independent investigation into the bona fides of documents being submitted for filing, and, instead, would accept any document that met the facial requirements for filing, the evidence shows that the City Register did not rely on the false pretenses contained in the deed that defendant filed (Defendant’s Brief at 46). But the trial evidence belies defendant’s assertion. Indeed, the trial evidence showed exactly the opposite: the City Register would rely solely on the certification of the person who filled out the document for filing. The evidence adduced at trial showed that documents presented for filing merely had to be certified by the preparer; if they were certified, then they accepted for filing. Accordingly, the evidence showed that the City Register would rely on the certification. Defendant’s logic is inverted. If a City Register were to perform an independent investigation into the bona fides of a document presented for filing, then there would be less reason to conclude that the City Register relied on the preparer of the 73 document, than if, as occurred in this case, the City Register were to accept a document for filing based on the preparer’s certification that the contents are true. See People v. Termotto, 178 A.D.2d 1025 (4th Dep’t 1991) (“it is sufficient that the false representation contribute to the larceny; it need not be the sole inducement . . .”), aff’d, 81 N.Y.2d 1008 (1993). Defendant’s reliance on this Court’s decision in Termotto (Defendant’s Brief at 26) is misplaced. In Termotto, the defendant obtained some bank loans by artificially inflating his income, and obtained other bank loans by falsely representing his ownership of property pledged as collateral. At trial, the bank officers who were the ultimate decision-makers who actually approved the bank loans did not testify at trial, and thus there was no testimony that the ultimate decision-makers relied on the defendant’s false representations in approving the loans. See Termotto, 178 A.D.2d at 1025. On appeal to this Court, the defendant argued that he was not guilty of larceny by false pretenses, because “where the victim is a bank doing business as a corporation, the element of reliance may be established only by evidence that the corporate agent who granted final loan approval in the bank’s name was the one induced by the false representations.” Termotto, 81 N.Y.2d at 1009. Although in Termotto there was no testimony by the ultimate decision-makers, 74 this Court affirmed the defendant’s conviction of larceny by false pretenses, because “bank employees who had played a major role in the application and approval process for each of defendant’s loans testified that they had relied on defendant’s false representations concerning his financial status in recommending that the bank approve his loan requests.” Id. at 1009-10. Accordingly, contrary to defendant’s assertion, Termotto stands for the proposition that, in considering the reliance element, the person to whom the false pretenses were made may be viewed broadly. * * * Defendant claims that, if this Court concludes that his lack-of-reliance argument is unpreserved for appellate review, then counsel’s failure to preserve the argument denied defendant effective assistance of counsel (Defendant’s Brief at 48-50). But defendant’s claim of ineffective assistance of counsel is meritless. An attorney cannot be faulted for forgoing a futile motion. See People v. Caban, 5 N.Y.3d 143, 154-55 (2005); People v. Benevento, 91 N.Y.2d 708 (1998); People v. Smith, 128 A.D.3d 1434 (4th Dep’t 2015); People v. Robles, 116 A.D.3d 1071 (2d Dep’t 2014). In this case, preserving defendant’s reliance- element claim for appellate review would not have helped defendant, because, as argued above (see supra at 67-74), the 75 evidence was legally sufficient to support the reliance element of the larceny count. Moreover, if counsel had raised the reliance argument in a timely motion for a trial order of dismissal, then the People might have asserted that their theory was not larceny by false pretenses, but rather, that their theory was larceny as broadly defined by Penal Law § 155.05(1), which does not require a showing of reliance. Penal Law § 155.45(2) provides that, except where a defendant is charged with larceny by extortion, “[p]roof that the defendant engaged in any conduct constituting larceny as defined in section 155.05 is sufficient to support any indictment, information or complaint for larceny.” In this case, defendant was not charged with larceny by extortion. Accordingly, the determination of whether he was guilty of larceny is not dependent on whether the evidence was legally sufficient to support a finding that defendant committed a specific form of larceny. Rather, the determination of whether defendant was guilty of larceny is dependent on whether the evidence was legally sufficient to support a finding that defendant committed larceny, as larceny is broadly defined by Penal Law § 155.05. See P.L. § 155.45(2). And the evidence in this case was legally sufficient to support a finding that defendant committed larceny as larceny is broadly defined by Penal Law § 155.05(1). 76 Notably, although the trial court and the parties referred to the People’s theory as common-law larceny by false pretenses, the People’s theory, as the People articulated it at trial, was that defendant committed larceny by filing the forged deed, and thereby unlawfully bringing about a purported transfer of the property to himself (see, e.g., A 341, 655). Accordingly, if defense counsel had objected to the submission of larceny by false pretenses, on the ground that there was no reliance by the owner, then the People might have countered that defendant had committed larceny as larceny is broadly defined either by Penal Law § 155.05(1) or by Penal Law § 155.05(2). Penal Law § 155.05(1) provides that “[a] person steals property and commits larceny when, with intent to deprive another of property or to appropriate the same to himself or to a third person, he wrongfully takes, obtains or withholds such property from an owner thereof.” And, as argued above (see supra at 39-62), the evidence was legally sufficient to show that defendant wrongfully obtained the property from the owners. Moreover, irrespective of whether the evidence was legally sufficient to show that defendant unlawfully obtained the property, the evidence was legally sufficient to show that defendant unlawfully took the property from its owners. See P.L. § 155.05(2). “The ‘taking’ element of larceny . . . is satisfied by a showing that the thief exercised dominion and 77 control over the property for a period of time, however temporary, in a manner wholly inconsistent with the owner’s continued rights.” People v. Jennings, 69 N.Y.2d 103, 118 (1986). In this case, as the prosecutor argued at trial (A 655- 56), defendant’s acts satisfied the “wrongful taking” element of larceny, because defendant exercised dominion and control over the property for a period of time, at least temporarily, in a manner that was wholly inconsistent with the owners’ continued rights. As argued above (see supra at 60-62), as a result of defendant’s wrongful acts, HDFC was unable to make necessary repairs for about a year, and, even at the time of trial, none of the individual owners could yet sell or take out mortgages on his or her property. Cf. People v. Olivo, 52 N.Y.2d 309 (1981) (defendant was guilty of larceny for shoplifting clothes, because defendant exercised dominion or control over those clothes in manner inconsistent with continued rights of owner, even though defendant had implied permission to possess those goods for purposes of examining them, trying them on, and carrying them about owner’s shop, and even though defendant had not left owner’s shop). Thus, even if defense counsel had timely raised the reliance argument, and even if the court had accepted that argument, the first-degree larceny count could still have been submitted to the jury under other theories that were supported by the evidence. 78 * * * In sum, defendant’s claim that the evidence was legally insufficient to support the reliance element of the grand larceny count is unpreserved for appellate review, and entirely meritless. Moreover, defendant’s ineffective-assistance-of- counsel claim is meritless, too. Accordingly, this Court should reject defendant’s challenge to his conviction on the grand larceny count. 79 POINT III DEFENDANT’S CLAIM THAT THE EVIDENCE WAS LEGALLY INSUFFICIENT TO ESTABLISH HIS GUILT OF CRIMINAL POSSESSION OF A FORGED INSTRUMENT IN THE SECOND DEGREE IS UNPRESERVED FOR APPELLATE REVIEW AND MERITLESS. Defendant’s claim that the trial evidence was legally insufficient to establish his guilt of second-degree criminal possession of a forged instrument is unpreserved for appellate review. In any event, his claim is without merit. On appeal, defendant argues that, because the deed that he filed was signed with his own name, the deed was not forged, and thus, he was not guilty of criminal possession of a forged instrument. At trial, however, defense counsel did not raise this argument in her motion for a trial order of dismissal. Rather, at trial, counsel argued that the evidence was consistent with a finding that, when defendant possessed the deed, defendant believed that he was authorized to convey the property, and that he believed that, in preparing the deed, he was engaging in “a completely legitimate process”: [DEFENSE COUNSEL]: The defense does move for a trial order of dismissal of Count 4, that the People have not met all of the elements as a matter of law regarding Criminal Possession of a Forged Instrument. That required that Mr. Maldonado had the knowledge that the instrument was forged and intended to use it to defraud another and this is a similar argument that you’ve already heard, but we don’t believe that any evidence showed that he intended -- sorry, that he had the knowledge that it was forged. 80 He gets -- he’s told by his financial advisor that this is what he’s supposed to do. He puts his name -- he signs it over to himself jointly with the corporation because he’s told that’s what he needs to do. He writes in it I’m doing this for a quitclaim refinance loan and all of this goes along with an intent to do what you think is required, not to do -- THE COURT: Required for what purpose? [DEFENSE COUNSEL]: Required for the purpose -- well, again, required for the purpose of changing -- of a quitclaim deed changing the property from just your name as president, to your name as president, to yourself personally -- THE COURT: No, there’s a purpose to that. [DEFENSE COUNSEL]: Again, though, that’s the purpose to get the loan and I still think you can’t transfer the intent to get a loan, if you think there’s criminal intent there, to inten[d] to possess a forged instrument because he’s not forging the instrument he’s giving to the loan people, he’s forging it to the Department of Finance. He could have -- the evidence can show that he believed that that was a completely legitimate process and I believe that the evidence does. (A 649-50). In support of his assertion that his appellate claim is preserved for appellate review, defendant quotes the above argument by counsel and emphasizes two words in that argument entirely out of the context in which they were said: “He puts his name he signs it over to himself jointly with the corporation because he’s told that’s what he needs to do” (Defendant’s Brief at 56-57). When those two words, “his name,” are read in the context in which they were said, it is clear 81 that counsel was arguing that defendant did not intend to possess a forged instrument, in that he believed that he was only following legitimate orders. Counsel was not, however, arguing, as defendant now suggests, that an instrument that contains the name of the person who signed it is not a forged instrument. Indeed, counsel expressly argued that defendant is “not forging the instrument he’s giving to the loan people, he’s forging it to the Department of Finance” (A 650 [emphasis added]). Accordingly, because the argument that defendant now raises on appeal is different from the argument that counsel raised in her motion for a trial order of dismissal, defendant’s appellate claim is unpreserved for appellate review and beyond the scope of review of this Court.10 See N.Y. Const. art. VI, § 3(a); C.P.L. § 470.05(2); People v. Becoats, 17 N.Y.3d 643, 654 (2011); People v. Hines, 97 N.Y.2d 56, 62 (2001); People v. Gray, 86 N.Y.2d 10, 19-21 (1995); People v. Norman, 85 N.Y.2d 609, 624 (1995). 10 In the Appellate Division, the People asserted that defendant’s forgery claim was preserved for appellate review (People’s Appellate Division Brief at 53, 59-60), but, as argued in this brief, defendant’s forgery claim is, in fact, unpreserved. Indeed, in the Appellate Division, defendant conceded that defense counsel had not raised the forgery claim at trial (Defendant’s Appellate Division Brief at 59). 82 Moreover, defendant’s claim is meritless. Defendant was convicted of Criminal Possession of a Forged Instrument in the Second Degree (P.L. § 170.25). Penal Law § 170.25 provides that “a person is guilty of criminal possession of a forged instrument in the second degree when, with knowledge that it is forged and with intent to defraud, deceive or injure another, he utters or possesses any forged instrument of a kind specified in section 170.10.” Among the kinds of instruments specified in Penal Law § 170.10 is “a deed.” See P.L. § 170.10(1). Penal Law § 170.00(7) provides that a “‘[f]orged instrument’ means a written instrument which has been falsely made, completed or altered.” Penal Law § 170.00(4) provides that “[a] person ‘falsely makes’ a written instrument when he makes or draws a complete written instrument in its entirety, or an incomplete written instrument, which purports to be an authentic creation of its ostensible maker or drawer, but which is not such either because the ostensible maker or drawer is fictitious or because, if real, he did not authorize the making or drawing thereof.” In determining whether an instrument is forged, “[t]he terms ‘authentic creation’ and ‘ostensible maker’ are pivotal.” People v. Cunningham, 2 N.Y.3d 593, 597 (2004). In a simple case of a forged instrument, the forger, “A,” wrongfully signs someone else’s name, “B,” misleading the public into believing 83 that the instrument is the authentic creation of “B,” its ostensible maker. “B” has not granted “A” authority to make the instrument. In that circumstance, it is clear who is the actual maker and who is the ostensible maker: the ostensible maker is “B” and the actual maker is “A.” And, because the actual maker and the ostensible maker are two different people, the instrument is a forged instrument. See Cunningham, 2 N.Y.3d at 597. Where, however, as in this case, an instrument purports to be that of a corporation, and the actual maker signs his or her own name to the instrument as an agent or employee of the corporation, but the person is not, in fact, an agent or employee of the corporation, the question of who is the actual maker and who is the ostensible maker is a question that this Court has not yet addressed. See Cunningham, 2 N.Y.3d at 599 n.7. In Cunningham, this Court held that, where the actual maker of a corporate check is, in fact, an agent or an employee of the corporation, then the agent or employee is also the ostensible maker of the check, irrespective of whether the employee or agent, by signing the check, exceeded the scope of the agency or employment. Id. at 596-600. Thus, the defendant in Cunningham, who was an employee of the corporation and who signed corporate checks that he was not authorized to sign, “did not commit 84 forgery merely by exceeding the scope of authority delegated by the corporation.” Id. at 599. This Court, in Cunningham, however, expressly declined to reach the question presented by this case, namely, whether, when the actual maker is not in fact an agent or employee of the corporation, the actual maker and the ostensible maker are two different entities. Id. at 599 n.7 (stating that this Court had “no occasion to decide whether it would be forgery to sign one’s own name on a corporate check when having no connection with the corporation”). If this Court reaches the merits of defendant’s claim -- and, because defendant’s claim is unpreserved, this Court should not -- then this Court should conclude that it is a forgery to sign one’s own name on a corporate instrument when one has no connection with the corporation. A corporation is a fictional person that can act only through its agents and employees. In re Sharon B., 72 N.Y.2d 394, 398 (1988) (referring to corporation as “fictional person”); Karaduman v. Newsday, 51 N.Y.2d 531, 546 (1980) (“a corporation is merely a legal fiction which can act and make decisions only through its employees and agents”). Thus, an agent or an employee of a corporation may be viewed as an embodiment of the corporation. See People v. Byrne, 77 N.Y.2d 460, 465 (1991) (“since corporations, which are legal fictions, can operate only through their designated agents and employees, 85 the acts of the latter are, in a sense, the acts of the corporation as well” [citations omitted]); Aetna Cas. & Sur. Co. v. Shuler, 72 A.D.2d 591, 592 (2d Dep’t 1979) (“a corporation acts through its agents, whose acts are the acts of the corporation”). Accordingly, when a bona fide agent or employee of a corporation drafts a check drawn on that corporation, there is no forgery even where the agent or employee had no authority to sign the check, because, in that circumstance, as this Court held, the drafter’s “relationship with [the company is] sufficient to make the check the ‘authentic creation’ of the company.” Cunningham, 2 N.Y.3d at 597. By contrast, where, as in this case, the actual maker of an instrument has no legal capacity whatsoever to act on behalf of the corporation, then the actual maker and the ostensible maker of the instrument are two different entities, and the instrument is a forged instrument, because, in that circumstance, the person has no relationship with the corporation to make the instrument “the ‘authentic creation’ of the company.” Where a person makes a corporate instrument and the person has no legal capacity whatsoever to act on behalf of the corporation, the person does not in fact embody the corporation. Therefore, because the person in that circumstance does not embody the corporation, the individual who made the purported 86 corporate instrument is the actual maker, and the corporation is not. The ostensible maker of the instrument, however, is the corporation. Anyone unaware that the signatory had no legal capacity whatsoever to act on behalf of the corporation could reasonably assume, upon viewing the instrument, that the signatory was authorized to sign on behalf of the corporation, especially where, as in this case, the instrument itself expressly states falsely that the person was an authorized signatory. Accordingly, where the person making a corporate instrument is not an agent or employee of the corporation, the actual maker is the signatory as an individual, but the ostensible maker should be deemed to be the corporation. Because, in that circumstance, the actual maker and the ostensible maker are two different entities, the instrument should be deemed to be a forged instrument. In short, only where, as in Cunningham, the actual maker has a “sufficient” relationship with the company, can the instrument be deemed to be “the ‘authentic creation’ of the company.” In this case, when the deed that defendant possessed was made, defendant had absolutely no legal relationship with the HDFC corporation and had no capacity whatsoever to act on behalf of HDFC. Accordingly, defendant had no legal capacity whatsoever to act on behalf of HDFC. He himself as an 87 individual was the actual maker of the deed, but HDFC was the ostensible maker of the deed, because the signature on the deed that defendant possessed indicated that defendant had signed his name on behalf of the corporation HDFC. Therefore, because the actual maker (defendant himself) and the ostensible maker (HDFC, as purportedly embodied by defendant) were two different entities, the deed that defendant filed was a forged deed. See Cunningham, 2 N.Y.3d at 597. Moreover, for another reason as well, defendant’s claim is meritless. For purposes of determining whether an instrument is forged, “[u]nder our present Penal Law, as under prior statutes and the common law, a distinction must be drawn between an instrument which is falsely made, altered or completed, and an instrument which contains misrepresentations not relevant to the identity of the maker or drawer of the instrument.” People v. Levitan, 49 N.Y.2d 87, 90 (1980). In this case, defendant possessed a falsely made instrument, namely, a deed, which misrepresented his identity. The deed contained the signature “Fernando Maldonado - Owner.” Although defendant was “Fernando Maldonado,” he was not “Fernando Maldonado - Owner.” “Fernando Maldonado - Owner” (of the ownership interest being conveyed) did not exist, and, therefore, the deed misrepresented the identity of its maker. Accordingly, as the Appellate Division correctly held, defendant was guilty of the possession of a 88 forged instrument count, because “[t]he evidence established that the defendant signed the deed as the owner of the corporation, thereby falsely assuming the identity of the owner and ostensible maker of the deed” (A 3). Maldonado, 119 A.D.3d at 612; cf. Int’l Union Bank v. Nat’l Sur. Co., 245 N.Y. 368 (1927) (where a person drafted two checks, and in each case the name of the payer and the name of the payee on the check were two different names, but each name was a name by which the drafter was known in a different place; and where the name used to indicate the payer was a name by which he was known at the bank from which the funds were to be withdrawn, and the name used to indicate the payee was the name by which he was known at the bank in which he deposited the check, the person committed forgery even though he used only names by which he was known, because the person was aware that the bank in which he deposited the check was led to believe that the payer and the payee were two different people); People’s Trust Co. v. Smith, 215 N.Y. 488, 490 (1915) (use of own name constituted forgery); Kraker v. Roll, 100 A.D.2d 424 (2d Dep’t 1984) (same). Defendant’s reliance on People v. Levitan, 49 N.Y.2d 87 (1980), is misplaced. First, Levitan did not address the question presented by this case, namely, whether a corporate instrument signed by a person who had no authority whatsoever to act on behalf of the corporation is a forged instrument. See 89 Levitan, 49 N.Y.2d at 89-92. Second, Levitan did not address the alternative question presented by this case, namely, whether an instrument containing a signature with a false title is a forged instrument. Id. In Levitan, the defendant, Molly Levitan, signed her own name on three deeds purporting to convey parcels of land that the deed stated she owned, but which in fact she did not own. Id. at 89. This Court held that, because the defendant signed her own name, she was not guilty of forgery, since the deed contained only misrepresentations that were not relevant to the identity of the maker or drawer of the instrument. Id. at 91-92. In short, because Molly Levitan stated in that deed that she owned the property and signed her own name on the deed, she was not guilty of forgery. Id. In this case, by contrast, the deed that defendant possessed did not merely misrepresent that he was the owner, it created, with that signature, an entirely fictional person, namely, “Fernando Maldonado - Owner” (of HDFC). A false title in a signature is different from a false statement in the body of a document, because the former relates to identity, whereas, by contrast, the latter generally does not. As this Court stated in Levitan, “a distinction must be drawn between an instrument which is falsely made, altered or completed, and an instrument which contains misrepresentations not relevant to the identity of the maker or drawer of the instrument.” Id. at 90. 90 Defendant’s reliance on People v. Asaro, 94 N.Y.2d 792 (1999), is also misplaced, because in Asaro, unlike in this case, the defendant did not misrepresent his identity, he merely misrepresented his date of birth. Id. at 793. * * * Defense counsel’s failure to preserve the claim for appellate review did not deny defendant effective assistance of counsel.11 First, as argued above, defendant’s legal- insufficiency claim is meritless, and therefore counsel cannot be faulted for forgoing that futile claim at trial. See People v. Caban, 5 N.Y.3d 143, 154-55 (2005). Second, counsel moved to dismiss each of the charged counts, but counsel could reasonably have been primarily concerned with the first two counts, first- degree grand larceny and attempted first-degree grand larceny, because they were class B and C felonies, and less concerned with the forged instrument count, which was a class D felony. 11 In his brief to this Court, defendant does not expressly claim that he was denied effective assistance of counsel by counsel’s failure to preserve the forgery claim for appellate review. However, in the Appellate Division, defendant did raise this ineffectiveness claim (Defendant’s Appellate Division Brief at 59). In this brief, the People are addressing the ineffectiveness claim that defendant raised in the Appellate Division, because it is possible that defendant forwent raising the ineffectiveness claim in his brief to this Court in reliance on the People’s mistaken concession in the Appellate Division that the forgery claim was preserved for appellate review (see People’s Appellate Division Brief at 53, 59-60). 91 Cf. Jones v. Barnes, 463 U.S. 745, 751, 753 (1983); People v. Stultz, 2 N.Y.3d 277, 284 (2004). Third, the argument that defense counsel raised at trial with respect to the forged instrument count was in essence an argument that related to all of the charged counts. Defense counsel’s argument for dismissing the forged instrument count was that defendant subjectively believed that he was still the president of HDFC and authorized to act on its behalf (A 649- 50). If the court had accepted counsel’s argument that the People had not adduced legally sufficient evidence to rebut that defense, then all of the charges would have had to be dismissed. Indeed, that argument was the heart of the defense case throughout trial (see, e.g., A 37-38, 725-26). By contrast, the argument that defendant raises on appeal regarding the forged instrument count relates solely to the forged instrument count. Thus, counsel could reasonably have decided not to raise that latter argument and thereby to place undue emphasis on a lesser count and risk burying arguments relating to the greater counts in a verbal mound of arguments relating solely to this lesser count. Finally, as argued above (see supra at 83-84), the law on defendant’s appellate argument is unsettled. Consequently, counsel could reasonably have concluded that it would be better to raise an argument on which the law was settled. Indeed, when 92 considering whether counsel was ineffective for choosing the argument that she did raise over the argument that defendant now raises on this appeal, it is relevant that defendant raised in the Appellate Division the argument that defendant raises on this appeal, and the Appellate Division unanimously rejected that argument on its merits (A 3). 119 A.D.3d at 611-12. Surely, given that four justices of the Appellate Division who considered the argument found it to be meritless, defense counsel cannot be deemed ineffective for having reached that same conclusion. * * * In sum, defendant’s claim is unpreserved for appellate review and beyond review of this Court. Moreover, defendant’s claim is meritless. Accordingly, this Court should reject defendant’s challenge to his conviction on the count of criminal possession of a forged instrument. 93 POINT IV THE EVIDENCE WAS LEGALLY SUFFICIENT TO PROVE DEFENDANT’S GUILT OF ATTEMPTED GRAND LARCENY. Defendant claims that the evidence was legally insufficient to show that he came dangerously close to obtaining a loan from MFC under false pretenses, and hence his conviction of attempted first-degree grand larceny must be reversed. Defendant’s claim is meritless, because the evidence showed that he took numerous steps toward obtaining a loan from MFC under false pretenses. Indeed, in furtherance of his attempt to obtain a loan from MFC under false pretenses, defendant went so far as to commit the completed crime of first-degree grand larceny, by filing with the City Register a forged deed purporting to transfer ownership of the HDFC property to himself. Accordingly, defendant, in his efforts to obtain a loan from MFC under false pretenses, crossed the boundary where preparation ripens into punishable conduct. Hence, the evidence was legally sufficient to support defendant’s conviction of attempted first-degree grand larceny for his attempt to obtain a loan from MFC under false pretenses. “A person is guilty of an attempt to commit a crime when, with intent to commit a crime, he engages in conduct which tends to effect the commission of such crime.” P.L. § 110.00. “[T]his Court has held that, for a defendant to be guilty of an attempted crime, the defendant must have engaged in conduct that 94 came dangerously near commission of the completed crime.” People v. Denson, 26 N.Y.3d 179, 189 (2015) (citation and internal quotation marks omitted). To be guilty of an attempted crime, “[t]he defendant’s conduct must have passed the stage of mere intent or mere preparation to commit a crime, but the defendant need not have taken the final step necessary to accomplish the crime.” Id. (citations, brackets, and internal quotation marks omitted). “[T]he boundary where preparation ripens into punishable conduct depends greatly on the facts of the particular case.” People v. Mahboubian, 74 N.Y.2d 174, 190 (1989). Defendant claims that he did not come dangerously close to obtaining the loan, because MFC was a sophisticated lender, and MFC inevitably would have determined, as in fact it did, that defendant did not own the property he was seeking to mortgage (Defendant’s Brief at 58-65). Defendant’s claim is meritless, because the determination of “whether a defendant has come dangerously near to completing a crime [is] focused primarily on the conduct of the defendant, not his or her intended victim.” Mahboubian, 74 N.Y.2d at 190-91. Thus, this Court has “focus[ed] on the steps [the] defendant took to accomplish the crime.” Id. at 191. Moreover, this Court has rejected the notion that, if “several contingencies” remain before the intended crime can be effectuated, then the preparatory steps 95 taken cannot be deemed to have ripened into an attempt to commit a crime. Id. at 191-92. In this case, the evidence that defendant attempted to obtain the loan from MFC under false pretenses included evidence that he hired James Bond as a consultant to help obtain a loan; that he borrowed money from Bond to pay the mortgage application fee; that he paid MFC the $12,700 application fee; that he submitted to MFC several different documents in support of his mortgage application, including forged rent rolls; that he caused MFC to conduct an appraisal of the property; and that, in furtherance of his mortgage application, he filed with the City Register a forged deed purporting to transfer ownership of the property to himself. Indeed, by filing the forged deed, defendant committed the completed crime of first-degree grand larceny (see supra Points I and II). Defendant presumably would not have done all that unless he subjectively believed that he could persuade MFC to give him the loan, and unless he was committed to seeing to fruition his endeavor to obtain the mortgage. Accordingly, defendant did not merely take preparatory steps to complete the larceny. Rather he crossed “the boundary where preparation ripens into punishable conduct.” Mahboubian, 74 N.Y.2d at 190. There comes a point where it is “too late in the stage of preparation for the law to conclude that no attempt 96 occurred.” People v. Mirenda, 23 N.Y.2d 439, 446 (1969). From defendant’s subjective perspective, once he filed the forged deed, all that remained for him to do was to take some ministerial steps and accept the mortgage money from MFC. That, from an objective prospective, there were circumstances that prevented him from completing the crime is not dispositive. See People v. Dlugash, 41 N.Y.2d 725, 737 (1977) (even though the People could not prove that the victim was alive when defendant shot him, defendant was guilty of attempted murder, “since a murder would have been committed ‘had the attendant circumstances been as [defendant] believed them to be.’ [P.L. § 110.10]”). This Court’s decision in People v. Mahboubian, 74 N.Y.2d 174 (1989), is instructive. In Mahboubian, the defendants, in order to make a fraudulent insurance claim, conspired to stage a burglary of a warehouse containing purported antiques, which were insured and which one of the conspirators owned. While the planned burglary was in progress, the police apprehended the hired “thieves.” Id. at 180-82. The defendants were each convicted of attempted grand larceny for the attempt to obtain insurance proceeds under false pretenses. Id. at 182. This Court affirmed the attempted grand larceny convictions, holding that the defendants came dangerously close to completing the larceny. Id. at 188-92. Accordingly, if the defendants in 97 Mahboubian, who never even filed an insurance claim (id. at 191), were held to have come dangerously close to completing their objective of obtaining insurance proceeds under false pretenses, then it is even clearer that defendant in this case, who filed an application for a loan under false pretenses, and who took many steps to advance that application, should likewise be deemed to have come dangerously close to completing his objective of obtaining a loan from MFC under false pretenses. This Court’s decision in People v. Denson, 26 N.Y.3d 179 (2015), is also instructive. In Denson, the defendant worked in a store on the first floor of a building in which a ten-year-old girl lived. Thirty to forty different times, the defendant offered to buy the girl ice cream and take her ice skating and to the movies. The girl was “bothered” by the defendant’s repeated offers. Id. On one occasion, the defendant told the girl’s mother that he wanted to take the girl to see a film. One weekend, when the store was closed, the defendant came to the girl’s apartment and rang the doorbell. The girl answered the door, and the defendant asked her whether she was ready to go to the movies and whether she had plans that weekend. The girl rebuffed the defendant’s advances and shut the door. Id. at 183-84. One day, the girl was walking up the building’s stairs to her apartment, when she saw the defendant exiting a door to the basement. The girl greeted the defendant, and the 98 defendant said to the girl, “Here’s the keys to my apartment,” as he started to remove a chain with his keys from around his neck. When the girl refused to take the keys, the defendant asked her three times whether she was sure. The defendant then told her that, if she changed her mind, she should meet him downstairs later that day, and he would take her for ice cream. The girl, feeling frightened, ran and told her mother what had happened, and the girl’s mother reported the incident to the police. Id. at 184. For these acts, the defendant was convicted of attempted kidnapping, on the theory that, because the girl was under sixteen years old, the crime of kidnapping would have been complete if the girl, without the mother’s consent, had accepted the defendant’s offer and had gone to his apartment, which was a place where it was unlikely that she would be found. Id. at 190; see P.L. § 135.00(1)(b). On appeal to this Court, the defendant in Denson claimed that the evidence was legally insufficient to support his conviction of attempted kidnapping, because the evidence did not prove that he came dangerously near to completing the crime. 26 N.Y.3d at 188. In support of his claim, the defendant argued that, “assuming he did not plan to accompany the victim to his apartment, there were multiple steps she would have had to take before she would have arrived there, such as learning his 99 address and obtaining transportation to his apartment.” Id. at 190. The defendant further argued that “the evidence demonstrated that [the girl] was ‘virtually impervious’ to his repeated invitations and would never have agreed to go to his apartment.” Id. And, in the defendant’s view, the determination of “whether the defendant ha[d] come dangerously near to accomplishing the crime [was] dependent upon the sophistication, resistance, or other particular characteristics of the child victim.” Id. This Court noted in Denson that its “analysis with respect to whether a defendant has come dangerously near to completing a crime, however, has focused primarily on the conduct of the defendant, not his or her intended victim.” Id. at 190-91. Accordingly, this Court focused on “the steps defendant took to accomplish the crime, rather than on the actions or disposition of the particular child victim, and whether defendant’s conduct was ‘potentially and immediately dangerous.’” Id. at 191 (citation omitted). The defendant in Denson further contended that, “because the steps remaining to accomplish the crime were within the control of the victim, and not within his own control, the evidence [was] not legally sufficient to establish an attempt.” Id. This Court rejected that argument, too, because, “[w]hile that is a factor to consider in determining whether a defendant 100 has come dangerously near to completing the crime, we have not held that for evidence of an attempt to be legally sufficient, completion of the crime must be solely within the power of the defendant.” Id. at 191-92 (emphasis in original). This Court held in Denson that the evidence was legally sufficient to support the conclusion that the defendant “crossed the boundary where preparation ripens into punishable conduct.” Id. at 191 (citations and quotation marks omitted). If in Denson, where the defendant was aware that the victim had unwaveringly rebuffed his advances thirty to forty times and where the victim did not take the defendant’s keys or even know where the defendant’s apartment was, the defendant was nonetheless still deemed to have come dangerously close to completing the crime, then, in this case, where MFC did not rebuff defendant’s loan application, accepted his payment of fees, and made repeated loan offers to him, the conclusion that defendant came dangerously close to completing the crime is at least as compelling as that conclusion was in Denson. Accordingly, as in Denson, this Court should reject defendant’s argument that, because (1) there were still multiple steps necessary to complete the crime, (2) the victim was too sophisticated to succumb to his solicitation, and (3) the steps remaining to complete the crime were beyond his control, he was not guilty of the attempt count. 101 Accordingly, as the Appellate Division correctly held (A 3), 119 A.D.3d at 611, the evidence was legally sufficient to sustain defendant’s conviction on the attempted grand larceny count. 102 POINT V DEFENDANT’S CLAIM THAT THE EVIDENCE WAS LEGALLY INSUFFICIENT TO PROVE THAT THE VALUE OF THE LOAN THAT DEFENDANT ATTEMPTED TO OBTAIN UNDER FALSE PRETENSES EXCEEDED ONE MILLION DOLLARS IS UNPRESERVED FOR APPELLATE REVIEW AND MERITLESS. Defendant claims that the evidence was legally insufficient to prove that the value of the loan for which he applied to MFC exceeded one million dollars, and consequently, even if the evidence was legally sufficient to establish his guilt of an attempted larceny, the evidence was legally insufficient to support his conviction of attempted first-degree grand larceny. Defendant’s claim is unpreserved for appellate review. In any event, defendant’s claim is meritless. At trial, defense counsel, in her motion for a trial order of dismissal, did not argue, as defendant does on appeal, that the value of the loan was that he was seeking was less than one million dollars. Rather, at trial, counsel argued that the evidence was legally insufficient to prove that defendant had come dangerously close to obtaining a loan at all (A 645-47). Indeed, defendant concedes that counsel, in her motion for a trial order of dismissal, failed to raise the valuation claim that defendant is now raising on appeal (Defendant’s Brief at 68). Accordingly, because the argument that defendant now raises on appeal is different from the argument that counsel raised in her motion for a trial order of dismissal, defendant’s 103 claim is unpreserved for appellate review, and may not be reviewed by this Court. See N.Y. Const. art. VI, § 3(a); C.P.L. § 470.05(2). Moreover, defendant’s claim is meritless. The trial evidence showed that in June 2008, defendant filed an application with MFC for a loan of ten million dollars (Rutkevitz: A 225). Later, in August 2008, MFC offered to give defendant a loan of seven million dollars (Rutkevitz: A 230). Accordingly, the evidence showed that defendant attempted to obtain a loan in excess of one million dollars. Hence, when defendant applied for a ten-million-dollar loan, and MFC counter-offered with an offer of seven million dollars, at that point, defendant was already guilty of attempted first-degree grand larceny. As argued above (see supra Point IV), the determination of whether a defendant came dangerously close to completing a crime is primarily viewed from the defendant’s perspective. See Mahboubian, 74 N.Y.2d at 190-91 (“analysis with respect to whether a defendant has come dangerously near to completing a crime, however, has focused primarily on the conduct of the defendant”). In this case, the evidence was legally sufficient to show that defendant was dangerously close to obtaining a loan of seven million dollars. Indeed, if defendant had not believed 104 so, then he presumably would not have paid the $12,700 loan application fee. In any event, even if the value of the loan were to be measured by MFC’s final offer to lend $1,608,750 (Rutkevitz: A 208-09), the value of the loan exceeded one million dollars. Defendant argues that the value of the last loan offer was less than one million dollars, because MFC agreed to initially disburse only $907,500 (Rutkevitz: A 208-09). According to defendant, the most that MFC would have loaned defendant was the initial disbursement of $907,500, because disbursement of the remainder of the loan was contingent on renovations being performed on the building. Defendant argues that “[t]he People cannot have it both ways”: asserting that defendant would have used the initial loan disbursement for his own personal use, and also asserting that defendant would have been able to obtain the remainder of the loan held in reserve (Defendant’s Brief at 67). But contrary to defendant’s contention, the People are not asserting that defendant would have used the initial loan disbursement for his own personal use. At trial, both the prosecutor and defense counsel argued that defendant intended to invest the initial disbursement of $907,500 into renovating the building. Counsel argued in her opening statement that defendant believed that he was still president of HDFC, that he was authorized to take the loan and 105 perform the renovations, and that he was taking the loan to benefit HDFC: Fernando Maldonado was intending to take the money and do what? He was going to put it back into the building to remodel and renovate the building not only that he began and not only where he used to live, but where his family lived. He loved that building. His intention was to take that money and put it into the building because it needed it. (A 41). The prosecutor agreed that defendant intended to perform the renovations, but argued that defendant intended to perform the renovations to increase the value of the building, so that he could later illicitly sell the building at a higher price (A 659, 733). The evidence supported the prosecutor’s theory. The evidence showed that defendant told Bond that he intended to renovate the building so that, if he later decided to sell the building, then he could sell it at a higher price (Bond: A 384). The evidence also showed that defendant was actively seeking to sell the building (Andrade: A 52-55). Accordingly, contrary to defendant’s assertion, the People are not trying to have it both ways. As both parties agreed at trial, defendant was intending to invest the initial loan disbursement into the building, but that circumstance did not negate the evidence that defendant was taking the loan under false pretenses or that, if all had gone according to his scheme, he would have stolen more than one million dollars from MFC. 106 In sum, as the People correctly argued at trial (A 652), the likelihood that defendant intended to use the money to make enhancements to the building did not mean that defendant was not seeking a loan in excess of one million dollars under false pretenses. Regardless of how defendant intended to use the proceeds of the loan, he was seeking to obtain the loan under the materially false pretense that he owned the building and was authorized to encumber it.12 Defendant’s alternative claim, that he was denied effective assistance of counsel, because counsel failed to move for a trial order of dismissal of the attempted first-degree larceny count on the ground that the loan value did not exceed one million dollars (Defendant’s Brief at 68), is meritless. As argued above (see supra at 103-06), the evidence was legally 12 Moreover, the loan was contingent on the building being collateral for the loan. But, because defendant was not authorized to encumber the building, MFC would, not in fact, have had a valid mortgage on the building, regardless of what defendant did with the proceeds of the loan (see supra, Point I, at 55-57). See Marden v. Dorthy, 160 N.Y. 39 (1899). Accordingly, if there was a default on the loan, as there very likely would have been, then MFC would have been left without recourse on a loan in excess of one million dollars. Notably, MFC also would have had no recourse against HDFC, because HDFC did not take the loan, and had not authorized defendant to take the loan. MFC also would have had no recourse against defendant, because defendant had little money of his own (Rutkevitz: A 229, 231-32). Consequently, because MFC agreed to give only a secured loan, and because if defendant had obtained the loan, the loan would have been unsecured, the loan would have been obtained under false pretenses regardless of what defendant did with the proceeds of the loan. 107 sufficient to support a finding that defendant did intend to obtain more than one million dollars under false pretenses. Accordingly, counsel cannot be faulted for forgoing a futile motion (see supra at 74-75). Furthermore, if counsel had succeeded on the argument that she raised in support of a trial order of dismissal of this count (A 645-47; see supra at 29, 102), then the result would have been not only the dismissal of that count, but also the dismissal of any lesser-included offense of that count, because counsel argued that defendant was not dangerously close to receiving any money at all. By contrast, if counsel had, instead, raised a valuation claim and succeeded in convincing the court that the value of the requested loan was about nine hundred thousand dollars, then defendant would still have faced the lesser-included charge of attempted second-degree grand larceny. See P.L. § 155.40(1) (person is guilty when stealing property valued in excess of fifty thousand dollars). As argued above (see supra at 74-75), an attorney moving for a trial order of dismissal is not required to raise every colorable claim for every charged count, especially when, as with this count, it is not the most serious count charged. Rather, an attorney may selectively choose which claims to raise, so as not to bury stronger claims in a mound of weaker ones. Accordingly, counsel could reasonably have chosen to argue that defendant did not 108 come dangerously close to obtaining any money at all, rather than claim that defendant did not come dangerously close to obtaining property valued in excess of one million dollars. In sum, as the Appellate Division correctly held (A 3), 119 A.D.3d at 611, defendant’s valuation claim is unpreserved for appellate review. Accordingly, defendant’s valuation claim is beyond review of this Court. Moreover, as the Appellate Division correctly held (A 3), 119 A.D.3d at 611, defendant’s valuation claim is meritless. In addition, counsel’s failure to preserve the claim did not deny defendant effective of assistance of counsel. * * * If this Court concludes that the evidence was legally insufficient to establish that the value of the loan sought exceeded one million dollars (for the reasons argued above, this Court should not so conclude), then this Court should reduce the conviction of attempted first-degree grand larceny (P.L. §§ 110.00/155.42) to a conviction of attempted second-degree grand larceny (P.L. §§ 110.00/155.40[1]), because defendant does not dispute that the value of the loan sought exceeded fifty thousand dollars, which is the requisite value to establish guilt of attempted second-degree grand larceny. See P.L. § 155.40.