The People, Respondent,v.Anthony Lewis, Appellant.

Brief

N.Y.February 12, 2014

APL-2013-00076 To be argued by SUSAN AXELROD (20 Minutes Requested) OVER Court of Appeals STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, - against - ANTHONY LEWIS, Defendant-Appellant. B R I E F F O R R E S P O N D E N T CYRUS R. VANCE, JR. District Attorney New York County Attorney for Respondent One Hogan Place New York, New York 10013 Telephone: (212) 335-9000 Facsimile: (212) 335-9288 danyappeals@dany.nyc.gov ALAN GADLIN SUSAN AXELROD ASSISTANT DISTRICT ATTORNEYS Of Counsel AUGUST 22, 2013 TABLE OF CONTENTS Page TABLE OF AUTHORITIES ............................................................................................. iii PRELIMINARY STATEMENT ......................................................................................... 1 INTRODUCTION................................................................................................................ 2 POINT I THE VERDICT SHEET SUBMITTED BY THE COURT WAS PROPER. ........................................... 24 POINT II TRIAL COUNSEL WAS NOT INEFFECTIVE FOR FAILING TO OBJECT TO THE INTRODUCTION OF TESTIMONY ABOUT THE USE A GPS TO LOCATE HIS CAR, AND THE COURT CORRECTLY DENIED HIS MOTION TO SET ASIDE THE VERDICT DUE TO THE INTRODUCTION OF EVIDENCE FROM THE GPS .......................................... 40 A. The Relevant Record ........................................................ 41 B. Defendant Has Not Demonstrated That He Was Denied Effective Assistance Of Trial Counsel. ................................................................................... 46 C. The Court's Decision Denying Defendant's 330.30 Motion Was Proper. .................................................. 59 POINT III THE FIRST DEPARTMENT PROPERLY EVALUATED THE WEIGHT OF THE EVIDENCE SUPPORTING DEFENDANT'S CONVICTIONS OF FIVE COUNTS OF GRAND LARCENY. ...................... 60 -ii- POINT IV THE COURT PROPERLY DENIED DEFENDANT'S REQUEST FOR APPOINTMENT OF A VOICE ANALYSIS EXPERT. ................................................................................ 70 POINT V DEFENDANT CAN IDENTIFY NO LEGAL ERROR CONCERNING HIS SENTENCE, WHICH WAS PROPER. ............................ 78 CONCLUSION ................................................................................................................... 87 -iii- TABLE OF AUTHORITIES FEDERAL CASES Ake v. Oklahoma, 470 U.S. 68 (1984) ............................................................................. 72-73 Caldwell v. Mississippi, 472 U.S. 320 (1984).......................................................................... 73 Ewing v. California, 538 U.S. 11 (2003) ................................................................................ 86 Jones v. United States, 565 U.S. __, 132 S.Ct. 945 (2010) ............................................... 52-53 Morton v. Nassau County Police Dept., 2007 U.S. Dist. LEXIS 87558 (E.D.N.Y. 2007) .. 50 Strickland v. Washington, 466 U.S. 668 (1984) ................................................................ 47-48 United States v. Ceccolini, 435 U.S. 268 (1978) ...................................................................... 57 United States v. Drayton, 2013 U.S. Dist. LEXIS 28284 (D.Kansas 2013) ....................... 50 United States v. Garcia, 474 F.3d 994 (7th Cir. 2007) ......................................................... 50 United States v. Knotts, 460 U.S. 276 (1983) ............................................................. 49, 51-52 United States v. McIver, 186 F.3d 1119 (9th Cir. 1999) ....................................................... 50 United States v. Moran, 349 F. Supp. 2d 425 (N.D.N.Y. 2005) ......................................... 50 United States v. Sparks, 711 F.3d 58 (1st Cir. 2013) ............................................................ 53 United States v. Williams, 650 F. Supp. 2d 633 (W.D.Ky. 2009) ....................................... 50 STATE CASES State v. Campbell, 306 Or. 157, 759 P.2d 1040 (1988) ........................................................ 54 In the Matter of Cunningham v. New York State Dept. of Labor, __ N.Y.3d __, 2013 N.Y. Slip Op. 4838 (2013) ........................................................................................... 26, 53, 57 In re Anthony M., 63 N.Y.2d 270 (1984) ............................................................................. 76 Lawrence Construction Corp. v. New York, 293 N.Y. 634 (1944) .......................................... 27 Parochial Bus System Inc. v. Board of Education, 60 N.Y.2d 539 (1983) ............................... 27 People v. Abner, 101 A.D.3d 1628 (4th Dept. 2010) ........................................................... 49 -iv- People v. Alamo, 34 N.Y.2d 453 (1984) .......................................................................... 30, 68 People v. Angelo, 88 N.Y.2d 217 (1996) ................................................................................ 72 People v. Baldi, 54 N.Y.2d 137 (1981) .................................................................................. 48 People v. Becoats, 17 N.Y.3d 643 (2011) ................................................................................ 76 People v. Benevento, 91 N.Y.2d 708 (1998) ............................................................................ 48 People v. Bleakley, 69 N.Y.2d 490 (1987) .............................................................................. 64 People v. Brand, 13 A.D.3d 820 (3d Dept. 2004)................................................................. 74 People v. Brisson, 68 A.D.3d 1544 (3d Dept. 2009) ........................................................ 49-50 People v. Brown, 45 N.Y.2d 852 (1978) ................................................................................. 46 People v. Brown, 67 A.D.3d 1369 (4th Dept. 2009) ............................................................. 74 People v. Burgess, 270 A.D.2d 158 (1st Dept. 2000) ............................................................ 73 People v. Caban, 5 N.Y.3d 143 (2005) .................................................................................. 48 People v. Carpenter, 240 A.D.2d 863 (3rd Dept. 1997) ........................................................ 73 People v. Cepeda, 29 A.D.3d 491 (1st Dept. 2006) .............................................................. 33 People v. Chivers, 91 N.Y.2d 500 (1998) ............................................................................... 64 People v. Cole, 85 N.Y.2d 990 (1995) .............................................................................. 36, 40 People v. Damiano, 87 N.Y.2d 477 (1997) ...................................................................... 35, 39 People v. Danielson, 9 N.Y.3d 342 (2007)......................................................................... 61-62 People v. Feliciano, 17 N.Y.3d 14 (2011) ......................................................................... 49, 52 People v. Foster, 73 N.Y.2d 596 (1989) ................................................................................. 69 People v. Fuentes, 52 A.D.3d 1297 (4th Dept. 2008) ........................................................... 33 People v. Giles, 73 N.Y.2d 666 (1989) ................................................................................... 59 People v. Grega, 72 N.Y.2d 489 (1988) ............................................................................ 33-34 -v- People v. Hemmings, 2 N.Y.3d 1 (2004) ................................................................................. 28 People v. Henry, 95 N.Y.2d 563 (2000) ................................................................................. 48 People v. Herrnkind, 49 A.D.3d 555 (2nd Dept. 2008) .................................................. 73-74 People v. Johnson, 10 N.Y.3d 875 (2008) .......................................................................... 61-62 People v. Johnson, 39 N.Y.2d 364 (1976 ................................................................................ 68 People v. Johnson, 81 N.Y.2d 980 (1983) ......................................................................... 35, 39 People v. Jones, 39 N.Y.2d 694 (1976) ................................................................................... 80 People v. Jones, 55 N.Y.2d 771 (1981) ............................................................................. 46, 53 People v. Kelly, 76 N.Y.2d 1013 (1990) ................................................................................. 39 People v. Lewis, 102 A.D.3d 505 (1st Dept. 2013) ................................................................ 4 People v. Love, 57 N.Y.2d 998 (1982) ................................................................................... 46 People v. Martell, 91 N.Y.2d 782 (1998) ................................................................... 35-37, 40 People v.. Mendez, 28 N.Y.2d 94 (1971) ................................................................................ 57 People v. Miller, 18 N.Y.3d 704 (2012) ............................................................................ 38-40 People v. Mitchell, 77 N.Y.2d 624 (1991) .............................................................................. 27 People v. Moore, 61 N.Y.2d 575 (1984) ................................................................................. 82 People v. Moore, 71 N.Y.2d 684 (1988) ........................................................................... 37, 40 People v. Naranjo, 89 N.Y.2d 1047 (1997) ..................................................................... 80, 82 People v. Nimmons, 72 N.Y.2d 830 (1988) ............................................................................ 39 People v. Nivese, 2 N.Y.3d 310 (2004) ................................................................................... 85 People v. Noble, 86 N.Y.2d 814 (1995) ................................................................................. 66 People v. Norman, 85 N.Y.2d 609 (1995) .................................................................. 66, 69-70 People v. Olivo, 52 N.Y.2d 309 (1981) ............................................................................ 30, 68 -vi- People v. Owens, 69 N.Y.2d 585 (1987) ........................................................................... 37, 39 People v. Pena, 50 N.Y.2d 400 (1980) ................................................................................... 83 People v. Ponnapula, 229 A.D.2d 257 (1st Dept. 1997) ....................................................... 70 People v. Salas, 258 A.D.2d 182 (3rd Dept. 1999) .............................................................. 70 People v. Sanchez, 76 A.D.3d 122 (1st Dept. 2010) ............................................................. 49 People v. Satterfield, 66 N.Y.2d 796 (1985) ........................................................................... 46 People v. Sotomayer, 79 N.Y.2d 1029 (1991) ......................................................................... 36 People v. Spivey, 81 N.Y.2d 356 (1983) ........................................................................... 35, 39 People v. Stuart, 51 A.D.2d 547 (1st Dept. 2008) ................................................................ 70 People v. Stultz, 2 N.Y.3d 277 (1995) ............................................................................. 48, 51 People v. Taylor, 1 N.Y.3d 174 (2003) ................................................................................... 47 People v. Thompson, 60 N.Y.2d 513 (1983) ........................................................................... 80 People v. Vasquez, 20 N.Y.3d 461 (2013) ............................................................................. 54 People v. Ventura, 35 N.Y.2d 654 (1974).............................................................................. 74 People v. Walker, 83 N.Y.2d 455 (1994) ................................................................... 74-75, 83 People v. Watson, 284 A.D.2d 212 (1st Dept. 2001) ........................................................... 70 People v. Weaver, 12 N.Y.3d 433 (2009) ............................................... 4-5, 41, 45, 50-55, 60 People v. Weaver, 52 A.D.3d 138 (3d Dept. 2008) ............................................................... 49 People v. Wilkerson, 94 A.D.3d 423 (1st Dept. 2012) .................................................... 73-74 People v. Yakubova, 11 A.D.3d 644 (2d Dept. 2004) .......................................................... 33 Rangolan v. County of Nassau, 96 N.Y.2d 42 (2001) ............................................................ 28 State v. Jackson, 150 Wash 2d 251, 76 P.3d 217 (2000) ..................................................... 54 -vii- STATE: STATUTES, RULES, REGULATIONS, CONSTITUTIONAL PROVISIONS Criminal Procedure Law 60.42 ..................................................................................... 28, 33 Criminal Procedure Law 60.43 ..................................................................................... 28, 33 Criminal Procedure Law 100.15 ......................................................................................... 26 Criminal Procedure Law 215.20 ............................................................................. 26, 28, 33 Criminal Procedure Law 220.60 ......................................................................................... 84 Criminal Procedure Law 310.20 ................................................. 5, 25, 28, 31, 35-36, 38-40 Criminal Procedure Law 330.30 ............................................................................. 41, 45, 59 Criminal Procedure Law 380.50 ......................................................................................... 28 Criminal Procedure Law 420.10 ......................................................................................... 28 Criminal Procedure Law 440.10 ......................................................................................... 46 Criminal Procedure Law 440.20 ..................................................................................... 3, 78 Criminal Procedure Law Article 700 .................................................................................. 59 Criminal Procedure Law 700.70 ......................................................................................... 76 New York County Law Section 722-c ............................................................................... 73 Penal Law Section 10.00 ...................................................................................................... 26 Penal Law Section 25.00 ...................................................................................................... 40 Penal Law Section 70.30 ...................................................................................................... 82 Penal Law Section 155.00 ............................................................................................... 30,66 Penal Law Section 155.05 ........................................................................................ 66, 68-69 Penal Law Section 155.30 ...................................................................................................... 1 Penal Law Section 155.35 ...................................................................................................... 1 Penal Law Section 155.45 ............................................................................................... 68-70 -viii- Penal Law Section 170.25 ................................................................................................ 1, 31 Penal Law Section 170.40 ...................................................................................................... 1 Penal Law Section 190.65 ...................................................................................................... 1 Penal Law Section 190.80 ...................................................................................................... 1 MISCELLANEOUS Peter Preiser, Practice Commentaries, McKinneys Cons. Laws of New York, Book 11A, CPL §310.20 .................................................................................................................... 26 CJI2d[NY] Penal Law Section 155.30 ................................................................................ 65 COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- ANTHONY LEWIS, Defendant-Appellant. BRIEF FOR RESPONDENT PRELIMINARY STATEMENT By permission of Honorable Victoria A. Graffeo, Judge of the Court of Appeals, Anthony Lewis appeals from an order of the Appellate Division, First Department, entered on January 17, 2013. That order affirmed a May 10, 2011 judgment of the Supreme Court, New York County (Wiley, J.), convicting defendant, after a jury trial, of two counts of Grand Larceny in the Third Degree (Penal Law Section 155.35[1]), three counts of Grand Larceny in the Fourth Degree (Penal Law Section 155.30[1]), eight counts of Criminal Possession of a Forged instrument in the Second Degree (Penal Law Section 170.25), three counts of Identity Theft in the First Degree (Penal Law Section 190.80[3]), one count of Scheme to Defraud in the First Degree (Penal Law Section 190.65[1][b]) and one count of Criminal Possession of Forgery Devices (Penal Law Section 170.40[2]). Defendant was sentenced to a -2- cumulative term of from nine and one-third to twenty-eight years' incarceration. He is currently incarcerated pursuant to that judgment. INTRODUCTION From January 2007 to May 2007, defendant, Jeffrey Barden and Nyiesha Jones participated in a scheme to steal property through the use of forged credit cards. Defendant and Barden obtained the credit card numbers of legitimate accounts whose account holders lived in other states. They then placed that information on blank cards that they made to look like real credit cards. Some of the cards bore defendant's real name. Others were in the name of James Smith, which was Barden's alias, and in the name of Kimberly Smith, which was Jones' alias. Defendant and his cohorts then used those cards to make purchases at a number of stores throughout New York County. In January 2007, investigators from the New York County District Attorney's Office obtained authorization to intercept communications over two of defendant's cell phones. As a result, they learned that in February 2007 defendant purchased a "reader/writer" machine that was capable of placing stolen credit card account information onto the strips of blank cards. In addition, on March 5th, 6th, 15th and 16th, 2007, the investigators followed defendant as he drove himself, Barden and, on some occasions, Jones to the various stores in which they made their purchases. The detectives obtained the credit card receipts for those purchases, as well as footage from security cameras at some of the stores showing defendant and his cohorts -3- making purchases. In May 2007, the detectives arrested defendant and Barden. They executed a search warrant at Barden's apartment and recovered the reader/writer machine. By New York County Indictment Number 2379/07, filed on May 18, 2007, defendant was charged, in a sixty-one count indictment, with a number of larceny, forgery and identity theft related offenses.1 On March 9, 2009, defendant proceeded to a jury trial before the Honorable Maxwell T. Wiley. The court submitted twenty- six counts for the jury's consideration. On March 31, 2009, the jury convicted defendant of twenty-three counts but could not arrive at an agreement on the other three. The People subsequently moved to dismiss those counts as well as three counts of identity theft. On July 30, 2009, the court adjudicated defendant a predicate felon and sentenced him to a cumulative prison term of from fourteen to twenty-eight years. Defendant subsequently filed a motion pursuant to Criminal Procedure Law 440.20 contesting his predicate felony offender adjudication. On May 10, 2011, the 1 By that same indictment, Barden and Jones were charged with a number of theft- related crimes. Jones was arrested on February 7, 2008. On July 23, 2008, she appeared before the Honorable Bruce Allen and pleaded guilty to fourth-degree grand larceny and was sentenced to a conditional discharge. According to the records of the District Attorney's Office, Jones has not filed a Notice of Appeal. On November 25, 2008, Barden appeared before Justice Wiley and pleaded guilty to third-degree grand larceny. On January 13, 2009, he was sentenced to a prison term of from two to four years. On January 14, 2009, Barden filed a Notice of Appeal. He has not perfected that appeal. -4- court granted defendant's motion, vacated his original sentence and resentenced him as a first felony offender. On appeal to the First Department, defendant complained that the jury's verdict was against the weight of the evidence. He also asserted that the trial court erred when it denied his post-conviction motion to set aside the verdict due to the introduction of testimony that the police had used a tracking device, attached to his car without a warrant, to locate him on one occasion. Defendant then complained that his trial attorney's failure to move to suppress evidence derived from that tracking device constituted ineffective assistance. Defendant further maintained that he was denied the right to a fair trial when he was forced to appear in court in prison-issued shoes. Next, he insisted that the court erred when it refused to appoint a voice expert and when it annotated the verdict sheet with the names and locations of the stores at which defendant and his cohorts had used the forged credit cards to make purchases. Lastly, defendant complained that his sentence was excessive. On January 17, 2013, the Appellate Division rejected defendant's claims and affirmed his conviction. People v. Lewis, 102 A.D.3d 505 (1st Dept. 2013). The court rejected defendant's complaint that the trial court should have granted his motion to set aside the verdict in light of the evidence derived from the warrantless use of the GPS. The court recognized that in People v. Weaver, 12 N.Y.3d 433 (2009), this Court held that, under the circumstances of that case, the police had been required to obtain a warrant before using the GPS for 65 days. The First Department concluded, -5- however, that the type of device used in the instant case and the manner in which it was used were so different from the facts of Weaver that Weaver was inapt and that therefore in this case the police had not been required to obtain a warrant (A3).2 Alternately, the court found that the evidence derived from the tracking device played such a minimal role in the prosecutor's "overwhelming case" that any error was harmless (A4). As to defendant's claim that counsel had been ineffective for failing to move to suppress the GPS evidence, the court concluded that defendant had failed to establish that he was prejudiced. The court also noted that an attorney was not ineffective for failing to anticipate a change in the law (A4). The court then held that the verdict sheet comported with the requirements of Criminal Procedure Law 310.20(2). The court concluded that using the names of the stores rather than the names of the cardholders or the banks was proper, as the stores were also victims of defendant's criminal conduct and were therefore "proxies" for the bank-complainants (A7-A8). Furthermore, the court ruled that there was no basis for reducing defendant's sentence and rejected the remainder of defendant's claims (A6-8). Before this Court, defendant renews his complaint that the verdict sheet failed to comport with the statutory requirements. He also again argues that his trial attorney was ineffective for failing to move to suppress the evidence recovered from 2 Parenthetical references preceded by "A" are to defendant's appendix. -6- the tracking device and that the court's decision denying his post-conviction motion was erroneous. Defendant then insists that the First Department failed to conduct its weight-of-the-evidence review of his convictions of grand larceny properly and that, had it done so correctly, it would have determined that those convictions were against the weight of the evidence. Defendant further complains that the trial court erred when it did not appoint a voice expert, and that his sentence was unconstitutionally imposed. The People's Case In January 2007, Investigators From The District Attorney's Office Begin Investigating Defendant, Jeffrey Barden And Nyiesha Jones For Various Theft Related Offenses. The investigation into defendant, his cousin Jeffrey Barden and Nyiesha Jones focused on their use of forged credit cards to make purchases of a number of different items at stores throughout Manhattan (Detective Investigator SALVATORE NOVELLINO: A222, A228, A230). Citibank Fraud Investigator MIKE McMULLEN, who testified as an expert in identity theft and credit card fraud, explained to the jury that credit card account information can be obtained in several ways. For instance, it is possible to hack into a merchant's data base and steal the credit card numbers stored there. In addition, a thief can place the credit card itself in a hand-held device that is capable of reading the information on the card's magnetic strip, which contains the credit card account number, the name of the card holder and the card's expiration date. This method is typically used in places like restaurants, -7- where the credit card owner hands the card to a waiter for processing (McMullen: A161, A163, A165-67). In order to create a fake card, the stolen information is encoded on the magnetic strip of another card through the use of a reader/writer machine (McMullen: A163, A166-67). The reader/writer is typically attached by cable to a computer on which data from stolen credit card accounts is stored. The computer transfers that information to the reader/writer, which then encodes the numbers onto a blank plastic card with a magnetic strip (McMullen: A167, A169). Other machines are then used to add graphics and place raised account numbers on the card to make it appear to be a legitimately issued credit card (McMullen: A167, A169). Credit card forgers also have ways to check whether the true account holder has discovered that his account has been hacked and thus has cancelled his card. One method is to call a "clearinghouse" and pretend to request authorization for a transaction. In order to use this method, the caller needs a "merchant identification number," as well as the credit card number. He then gives that information to the clearinghouse as well as a purchase price, usually in an amount under $50. Upon receipt of the information, the clearinghouse informs the caller whether the transaction has been accepted, which signals that the account had not yet been cancelled, or whether the transaction is declined, in which case the thief would cease using the card (McMullen: A182, A193). -8- Whether the bank that issues the card from which the information is stolen or the store where the purchaser used the forged credit card bears the loss for the purchased items depends upon the manner in which the merchant entered the credit card information into the computer. If the merchant swiped the card through a reader and the bank authorized the transaction, then the bank bears the loss. If, however, the merchant manually entered the credit card numbers into a terminal, then the bank could subsequently rescind its authorization once the fraud was discovered. In that case, the merchant would have to bear the loss (US Bank Officer GABRIELLE NOHELTY: A566, A580, A585). In January 2007, Detective MICHAEL BAZERMAN and Detective Investigators Novellino, FRANK PAPPALARDI, MICHAEL WIGDOR and ELENA LUI from the New York County District Attorney's Office began their investigation into defendant, Barden and Jones (Bazerman: A91, Lui: A117-20; Novellino: A221, A228, A230; Wigdor: A605; Pappalardi: A689). The investigation lasted until May 21, 2007, when defendant and Barden were arrested (Novellino: A310; Wigdor: A606; Pappalardi: A701). Defendant was about six feet tall and weighed about 350 pounds (Lui: A642, A645; People's Exhibits 11 [photograph of Jones]; People's Exhibit 12 [photograph of Barden]). As part of the investigation, Novellino and the team conducted court- authorized eavesdropping over two cell phones that defendant used and that were registered to Yvonne Barden, defendant's mother (Lui: A119; Novellino: A225, A227- -9- 28, A325-27, A357; Pappalardi: A690). During the course of the investigation, Novellino acted as a monitor, which meant that he listened to over one thousand calls as they were being intercepted (Novellino: A226-27, A372). In a number of them, defendant identified himself by name (Novellino: A360). In addition, the team conducted surveillances, during which Novellino heard defendant speak. He also heard defendant's voice on the date they arrested him (Novellino: A328). As a result, Novellino was familiar with both defendant's and Barden's voices (Novellino: A227). The team also conducted physical surveillance of defendant and his cohorts by following defendant's car. However, they often had difficulty maintaining contact with him given traffic conditions in Manhattan (Novellino: A243-44). In addition, on one occasion, defendant recognized that he was being followed and got out of his car to confront one of the officers, causing the team to cease surveillance that day (Novellino: A244). In order to avoid these problems, in early March, the team placed a tracking device on the underside of defendant's car. The device utilized "GPS technology": when the agents wanted to locate the car, they would dial a number and the GPS system would provide a location (Novellino: A242). Intercepted Calls Reveal That Defendant Was Creating Or Obtaining Forged Credit Cards. Starting in January 2007, the team intercepted a number of calls that demonstrated that defendant was making efforts to acquire the necessary information and items to make his own credit cards. For instance, on January 17, 2007, the team -10- overheard a cell phone conversation between defendant and Barden, in which defendant told Barden that he had spoken with "Chin" about the problems with the "math" and about obtaining "joints." "Math" was a reference to stolen credit card account numbers, and "joint" was code for the plastic piece on which credit information was printed (McMullen: A176; Novellino: A235-237; People's Exhibit 4B [call # 13140]). Then, on January 19, 2007, defendant called an unidentified man and asked for two "bins." Bins is an abbreviation for bank identification numbers, which comprise the first six numbers on a credit card and identify which financial institution issued the card (McMullen: A170-71, A177; Novellino: A239; People's Exhibit 4B [call # 312]). On January 22, 2007, defendant made two calls to Tynes Associates. In the first, he explained that he was looking to buy a "reader/writer" and was told to check the company's website (Novellino: A239-40; People's Exhibit 4B [call b7a01]). A few hours later, defendant called again, this time to confirm his payment for the reader/writer that he had just ordered. During that conversation, he identified himself by name. Defendant also expressed frustration when he was informed that the company could not guarantee that they could ship the merchandise out that day. Defendant complained that he had rushed to order the reader/writer because he needed it by the following day (Novellino: A241-42; People's Exhibit 4B [call b9c01]). On January 29, 2007, defendant made a call to an unidentified male, in which he asked -11- about a locating cable to use with the reader/writer (Novellino: A257-58; People's Exhibit 4B [call #15825]). At 5:44 p.m. on February 26, 2007, the team intercepted a call between defendant and an unidentified male. In that call, defendant was attempting to purchase "proper blanks," or plastic cards to use to create credit cards. Using coded language, defendant also discussed creating MasterCards, Discover Cards and Visas and placing account information on those cards (Novellino: A261-62; People's Exhibit 4B [call #19814]). Then, at about 3:48 p.m. on February 28, 2007, defendant called "Chris" and asked about purchasing credit cards from him (Novellino: A303-34; People's Exhibit 4B [call #20284]). On March 5, 2007, Defendant And His Cohorts Go On A Shopping Spree Using Forged Credit Cards. At about 12:50 p.m. on March 5, 2007, Barden entered Plaza Collectibles, a jewelry store on 57th Street in Manhattan. In a transaction captured by store security (Rosenbloom: A134; Novellino: A229; People's Exhibit 12 [still photograph from tape of Barden]), Barden told LEE ROSENBLOOM, the store's owner, that he wanted to purchase a Cartier Roadster. Rosenbloom showed him the watch and, after some negotiations, agreed to sell it to him for $3995. With tax, the sales price was $4200 (Rosenbloom: A136-37). Barden took out a MasterCard bearing the name "James Smith" (Rosenbloom: A137, A155). In fact, however, the account numbers on the card corresponded with an account belonging to XXXXXX in Brookfield, Illinois. -12- Her card had been issued by Harris Bank in Chicago (Harris Bank Fraud Investigator HORATIO ISIS: A529-30; People's Exhibit 24 [account records]). James Smith was not an authorized user of that account (Isis: A533).3 Rosenbloom attempted to charge the entire purchase amount on the card, but when he swiped the card, he received a message that the transaction had been declined (Rosenbloom: A137-38). Rosenbloom then tried again, this time charging only $2000 on the card. That amount was accepted. When Rosenbloom asked Barden if he had a second card on which to charge the remainder, Barden gave him several cards, one of which had an account number for the credit card issued by JP Morgan Chase to XXXXX of La Grange Park, Illinois (Rosenbloom: A149, A156; Chase Bank Fraud Investigator MARTIN LEVERGNE: A387, A389, A391-92). Each card was declined (Rosenbloom: A139; Levergne: A392-93). At that point, Barden asked whether he could return later that day with the balance and Rosenbloom agreed (Rosenbloom: A139). Rosenbloom gave Barden a receipt for the deposit as well as an insurance appraisal form (Rosenbloom: A139; People's Exhibit 5 [deposit receipt]). At some point after Barden had left the store, Barden called Rosenbloom and announced that his sister would be the one to come back to pay the balance (Rosenbloom: A139, A143). 3 Earlier that day, at 1:36 p.m., that credit card was used to make a $201 purchase at Coach. The receipt was signed by Kimberly Smith (Isis: A527-28). -13- At about 3 p.m. that afternoon, Novellino and Pappalardi called the tracking device and learned that defendant's car was in the vicinity of 86th Street and Lexington Avenue in Manhattan. Novellino and Pappalardi drove to that area but could not find defendant (Novellino: A242, A244). At around that time, according to records for the Best Buy at 86th Street and Lexington Avenue, a customer purchased a Sony camcorder costing $1132.51 using a credit card in the name of Kimberly Smith (Best Buy Operations Manager FREDERICK HOLMES: A722-29). However, the number on that card was from an account in the name of XXXXX from La Grange, Illinois, and was issued by HSBC. Smith was not an authorized user for that account (HSBC Investigator BEATRICE LAM HOM: A559). A few minutes after that transaction was completed, Barden called defendant. Defendant told Barden that he had seen the manager follow Barden out of the store. Defendant explained that, as a result, he had to "pull off" and that he was now on 85th Street between Second and Third Avenues (Novellino: A308; People's Exhibit 4B [call #20915]). Upon intercepting that call, the wiretap monitors notified Novellino that they thought that defendant might be in Best Buy (Novellino: A308). Although the investigators did not see him in the store, they were able to locate defendant's car heading south on Lexington Avenue. They could see defendant and Barden inside the car (Novellino: A242-45). -14- Novellino followed the car to Plaza Collectibles, where defendant parked but did not get out (Novellino: A245). Jones entered the store at about 3:50 p.m. (Novellino: A229-30). She told Rosenbloom that she was there to pay for the watch and gave him the receipt that he had given Barden earlier. Jones also handed Rosenbloom an Illinois driver's license as well as a MasterCard in the name of Kimberly Smith (Rosenbloom: A145-156, A156-57; People's Exhibit 7 [credit card receipt]; People's Exhibit 11 [photograph of Jones from security tape]). The true holder of that account was XXXXXX, who lived in La Grange Park, Illinois (Citigroup Fraud investigator MARK McMULLEN: A189-90). Rosenbloom charged the remainder of the sales price to Jones' card and the transaction was accepted (Rosenbloom: A147, A160). While Rosenbloom was processing the transaction, defendant called Jones and told her to stay on the phone while she was "in there." He also asked if "they acting alright?" (Novellino: A280-81; Lui: A669, A678; People's Exhibit 32 [calls #20925-20927]). When Jones left Plaza Collectibles, she got into defendant's car. Novellino followed the car to 44th Street and Fifth Avenue (Novellino: A246, A270). While en route, defendant called "Boris" and asked if Boris was interested in purchasing a Cartier Roadster that he had. Boris said that he was (Novellino: A263-64; People's Exhibit 4B [call #20929]). Once at 44th Street, all three occupants got out of the car. Jones entered the Best Buy with Novellino following (Novellino: A270-75). While Jones was browsing -15- in the camera section, store employee GILBERTO DeHOYOS approached and offered assistance (Novellino: A270-75; DeHoyos: A471-73; People's Exhibit 13 [security tape]). Jones told DeHoyos that she was looking for a camera for her niece. He showed her cameras that were in the $200 price range. She then changed her mind and said she wanted to buy a camcorder. She picked out the most expensive one, which cost $1083 (DeHoyos: A471, A473-74, A484). At one point, while Jones was shopping, defendant entered the store. He looked around, saw where she was and left the store without speaking with her (Novellino: A275-77; People's Exhibit 13). DeHoyos asked for identification and Jones gave him an Illinois driver's license in the name of Kimberly Smith (DeHoyos: A476). The first credit card that she handed him was declined. She handed him a second card but said that, as she had been on a shopping spree, that card, too, might be declined. It was (DeHoyos: A476- 77). Jones then gave DeHoyos a credit card with the account number for XXXXX's HSBC MasterCard account. That card was accepted (DeHoyos: A479; Hom: A556, A558-59, A562). Jones signed the signature pad in the name of Kimberly Smith (DeHoyos: A479; People's Exhibit 22 [receipt]). Meanwhile, after defendant left Best Buy, he walked across the street to Staples (Pappalardi: A690). The store security system showed defendant entering the store and speaking with one of the store employees. The security cameras also captured Barden entering a few minutes later and then using a credit card to make a purchase. -16- The credit card receipt for that sale reflected that the item purchased was a "Zune" MP3 player that cost $270.39 and that the card used was a MasterCard (General Manager DANIEL HENDERSON: A439, A442; People's Exhibit 19A [credit card receipt]; People's Exhibit 20 [security tape]). That card had been issued by Citizen's Bank to XXXXX from Homer Glen, Illinois (Citizen's Bank Manager DAYANARA NINO: A487, A490, A493). Defendant left the store about five to ten minutes before Barden, who walked out carrying a bag. The two men stopped at Novellino's car. Although Novellino was still inside Best Buy, Pappalardi had remained in the vehicle with a camera and was attempting to take pictures. He slouched down in the seat to avoid being seen while defendant and Barden had a brief conversation before returning to defendant's car (Pappalardi: A693). On March 6, 2007, Defendant's Cell Phone Is Used To Call A Clearinghouse And Check Which Credit Card Accounts Are Still Active, After Which Defendant And Barden Use Several Forged Credit Cards To Purchase Liquor From A Number Of Different Stores. On March 6th, at about 11:00 a.m., defendant called Jones (Lui: A644-45; People's Exhibit 4C [call #21064]). During that conversation, defendant asked Jones how many "pieces still [had] approval." Lui was monitoring the call, and she understood defendant to be inquiring as to how many fraudulent credit cards in Jones' possession were still active, i.e. had not yet been cancelled after the legitimate owners became aware that their accounts had been compromised. Jones responded, in code, -17- that she had called a clearinghouse and had obtained approval for transactions for three of them (Lui: A647). Then, at about noon, someone used defendant's cell phone to call a clearinghouse. When prompted by the automated voice, the user entered a merchant number, several credit card numbers and purchase amounts that ranged from $21 to $44. Each transaction was declined (Novellino: A286-87; People's Exhibit 4B [call #21073]; People's Exhibit 28 [line-sheet for call]).4 At 12:30 p.m. that same day, Novellino followed defendant and Barden to a liquor store on 34th Street in Manhattan and then to Snappy Auctions, a store that sold merchandize for clients on the internet (Novellino: A283-84). From there, defendant and Barden went to several liquor stores, including House of Wines and Liquors at 250 East 34th Street (Novellino: A284). They were there for about 20 minutes. Shortly after they left, defendant called an unidentified man and told him that he had "a few bottles of Johnny Walker Blue" that he wanted to "fence" (Novellino: A284, A309). Next, defendant went into McAdam Buy Rite Wine and Liquor on 3rd Avenue between 28th and 29th Streets. He asked one of the store employees for a case of Johnny Walker Blue. While the employee went to the back to obtain the requested 4 Throughout the course of the investigation, the monitors intercepted a number of calls in which someone using defendant's cell phone called clearinghouses and entered a series of requests for authorization to charge payments to a number of credit card accounts (Lui: A647, A654-55; People's Exhibits 28, 29, 30 [line-sheets of calls to clearinghouses]). -18- inventory, manager WILLIAM RUDOWSKI took over at the cash register. Rudowski informed defendant that he only had 8 bottles and that the price to purchase all of them was $1700. Defendant said he would take them and handed Rudowski a driver's license and a credit card; the names on both matched. When Rudowski ran the card, the transaction was declined. Defendant gave the manager a second card and, when that was declined, a third card. That, too, was declined (Rudowski: A367-73). At that point, a second man came in and asked defendant if everything was alright. When defendant explained that his cards had been declined, this second man said that he had a card and both men left to retrieve it. They never returned (Rudowski: A372-73). Citibank records reveal that one of the cards defendant attempted to use was from the account of XXXXXX of Burr Ridge, Illinois (McMullen: A192-93, A202). On March 15 And 16, 2007, Defendant And His Cohorts Continue Their Shopping Spree Using Forged Credit Cards. On March 15, 2007, a laptop that cost $1192.11 was purchased with a Visa credit card at Office Depot at 41st Street and Broadway. The signature on the receipt was illegible (Office Depot Loss Prevention Manager MICHAEL SHANNON: A587-94; People's Exhibit 27 [credit card receipt]). The card's account holder was XXXXXXX from Fargo, North Dakota, and the card was issued by US Bank (Nohelty: A564-65, A571-72). -19- That same day, at about 1:09 p.m., the investigators intercepted a call between defendant and Barden in which the two men discussed what names to put on credit cards (Novellino: A296; People's Exhibit 4B [call#22420]). Barden asked defendant whether he wanted his name on the cards or "her name." Defendant told Barden to put defendant's name on some of the cards and to put a "few in hers" (Novellino: A296; People's Exhibit 4B). Also that day, two African American men entered O'Ryan Liquor Store, at 58th Street and 6th Avenue in Manhattan, and asked employee MARTIN JALALLAR to purchase two bottles of Johnny Walker Blue. The taller of the two men weighed about 280 pounds and had facial hair. With tax, the entire transaction amounted to $708.50. The taller man handed Jalallar his identification as well as a credit card. Both cards bore the name Anthony Lewis (Jalallar: A715-19). Although the credit card "did not go through," i.e., it was not posted to the credit card account, records of US Bank recorded the transaction on XXXX's account (Nohelty: A574). The taller man gave Jalallar a second credit card, again in Lewis's name, which was accepted. The account number for that card was actually to a corporate account for XXXXXXXX of Bellingham, Washington that was issued by Chase Bank (Levergne: A394, A396, A404-05; Jalallar: A718). The taller man signed the receipt as Anthony Lewis (Levergne: A398). XXXXX's credit card was next used at Virgil's Real Barbeque on 44th Street to pay a $217 bill. It was used again for a $564 charge at Ninth Avenue Wine and Liquor -20- (Levergne: A396). The credit card receipt was signed "Lewis Anthony" (Levergne: A399, A407). XXXX's card was also used once more that day, for a $1999 charge at Ray and Frank Liquor Store on Ninth Avenue (Nohelty: A572, A578-81). At 2:20 p.m., on March 16, 2007, defendant's cell phone made two calls to a clearinghouse. In the first call, the caller inputted merchant codes and then sought authorization for charges between $30 and $40 to XXXXX's and XXXXX's accounts. An authorization request was also sought for a US Bank credit card issued to XXXXXXX of Fargo, North Dakota. All the transactions were approved (Novellino: A298; Levergne: A394, A400; Nohelty: A567, A571; Lui: A655; People's Exhibit 4C [call #22700]; People's Exhibit 29 [line-sheet]). In the second call, the caller entered a different merchant code and sought authorization to charge three credit cards with small amounts. The transactions for all three cards were approved (Lui: A658-60; People's Exhibit 30 [line-sheet]; People's Exhibit 31 [spreadsheet]). At about 2:50 p.m. that same day, Novellino, Pappalardi and Lui followed defendant's car to the Staples located at 85th Street and Park Avenue in Manhattan. Novellino was able to see that Barden and a woman Novellino had not seen before were in the car (Novellino: A288-89). Defendant and the woman got out of the car and went into the Staples, where ARSIM ISLAMI was working. Novellino followed them inside. Footage from the security camera showed the woman, who was wearing a Yankees jacket, enter the store just ahead of defendant (Islami: A633; Pappalardi: -21- A697; People's Exhibit 33a [still photograph from tape]; People's Exhibit 36 [security tape]). Defendant purchased a $1571 laptop from Islami with a credit card (Novellino: A289-91; Islami: A633-69). The card was from XXXXXXXXX's account (Nohelty: A572).5 While defendant was making the purchase, the monitors intercepted a call from Barden in which he asked a woman if everything was alright. She replied that the line was long but that "he [was] at the register already" (Novellino: A297-98; People's Exhibit 4B [call #22709]). From Staples, defendant drove his cohorts to Cellini's Shoe Store at 673 Lexington Avenue (Novellino: A291). All three entered the store and spoke with employee ISAURA GERMAN (German: A504). Defendant introduced himself as "Chocolate" and explained that the woman was the "next Beyonce." He asked that German take care of her. German showed her a number of shoes, from which she selected three or four pairs (German: A507-08). Defendant produced a credit card, whose number was taken from XXXXXXX's corporate credit card (German: A481; Nohelty: A567). When German swiped it, the transaction was declined. Defendant told German that it was a corporate card and that it might require a PIN number. He asked her to swipe it again using the PIN number that he gave her. This second try 5 XXXXX's card was used one more time that day, at Lucky Dungarees. That charge was for $323. On March 17, 2007, someone used XXXX's card at Garnett Wine and Liquors to make two payments of $262 each (Nohelty: A572) -22- was still unsuccessful (German: A508). Defendant's friend offered to pay cash but defendant refused and said that he wanted to use the credit card. He told his friend that he would go to a bank and get a cash advance from the card. When he asked German where the nearest bank was, she suggested that he let his friend pay with cash first and then go to the bank. Defendant told her that it was not her job to tell him what to do. Then, he, his friend and the woman left. They did not return (German: A509-11). Novellino had remained outside the store and saw defendant, Barden and the woman leave and get into defendant's car (Novellino: A291-92). Novellino followed the car to the Staples at 44th Street and Fifth Avenue, which defendant and the woman entered (Novellino: A292-93). Daniel Henderson was working at Staples that day. One of his employees notified him that a customer wanted to purchase a laptop. He brought an IBM Think Pad to where the customer -- defendant -- was waiting. The laptop cost $1571, which defendant paid for by credit card (Henderson: A440-41, A450; People's Exhibit 19B [credit card receipt]). The signature on the receipt was illegible but the charge was to XXXXXXXX's Chase credit card account (Levergne: A400-401, A409, A411).6 6 Henderson did not make an in-court identification of defendant. He was shown the security tape from the March 5 transaction in which defendant had entered the store before Barden purchased the MP3 player. Henderson recognized defendant from that tape as the same man who purchased the laptop on March 16th (Henderson: A440, A448, A460). -23- Defendant and the woman walked out of the store, carrying a bag (Novellino: A293). From there, they went to SYMS at 54th Street and Park Avenue, arriving there at about 5 p.m. (Novellino: A294). Records from the store indicate that at about 5:47 p.m., Anthony Lewis purchased $675 of clothing via credit card (Novellino: A293; SYMS Office Manager NANCY MARQUES: A419, A421; People's Exhibit 17 [credit card receipt]). The first card that he used, which was on XXXXXXXXX's Chase account, was declined (Levergne: A394, A399-40; People's Exhibit 17). The second card was a Visa card and was on XXXXXX's account. That card was accepted (Levergne: A399-40; People's Exhibit 17). When the group walked out of the store, they were all carrying shopping bags (Novellino: A294; Lui: A682). On April 9, 2007, Defendant Attempts To Obtain More Forged Credit Card Numbers. On April 9, 2007 at about 1:24 p.m., there was a series of calls between defendant and Barden during which defendant asked Barden to get him 75 "Vicki's" or Visa cards and 25 "Mary's" or MasterCards (Novellino: A298-299; People's Exhibit 4C [calls 27474, 27476]). On May 21, 2007, Defendant And Barden Are Arrested. On May 21, 2007, the team arrested defendant and Barden (Novellino: A300; Pappalardi: A701). During a search of Barden's apartment made pursuant to a search warrant, the team recovered a reader/writer machine (Wigdor: A606-07; People's Exhibit 9 [reader/writer machine]). -24- The Defense Case Defendant did not introduce any evidence at trial. POINT I THE VERDICT SHEET SUBMITTED BY THE COURT WAS PROPER (Answering Defendant's Brief, Point I, pp. 21-35). The verdict sheet that the court submitted to the jury listed twenty-six counts: two for third-degree grand larceny, three for fourth-degree grand larceny, eleven possession of forged instruments counts, eight identity theft counts, one count of Scheme to Defraud and one count of Criminal Possession of a Forgery Device. In order to assist the jury in differentiating the grand larceny, forged instrument and identity theft charges, the court included parentheticals which listed the stores at which those crimes had occurred (see Verdict Sheet: A1087-88). Because defendant's crimes took place at more than one Best Buy and Staples, the court differentiated those stores through their locations. Thus, for those incidents that involved Staples, the court included either "44th and 5th" or "1280 Lexington" (Verdict Sheet: A1087- 88). Similarly, for Best Buy, the court described the stores either as "Best Buy 1280 Lexington Avenue" or "Best Buy 529 Fifth Avenue" (Verdict Sheet: 1087-88). The court explained to the jury that the purpose of these parenthetical references was for no other reason than to remind the jury of the differences between each of the counts (Charge: A924-25). -25- Defendant complains that the verdict sheet violated Criminal Procedure Law 310.20(2). According to defendant, that statute limited the court to using the names of the "victims" when annotating the verdict sheet and here the victims were the banks and not the stores at which the thefts occurred. He adds that, by these annotations, the court in essence constructively amended the indictment in violation of his state constitutional rights (Defendant's Brief at 29). Defendant's attacks are partially unpreserved and totally meritless. The annotations used by the court are expressly authorized by Criminal Procedure Law 310.20(2); but, even were that not the case, because the annotations did not include statutory language, the court was still not barred from using them. A. The starting point for assessing defendant's claim is the statute itself. Criminal Procedure Law 310.20 states that: Upon retiring to deliberate, the jurors may take with them: . . . 2. A written list prepared by the court containing the offenses submitted to the jury by the court in its charge and the possible verdicts thereon. Whenever the court submits two or more counts charging offenses set forth in the same article of the law, the court may set forth the dates, names of complainants or specific statutory language, without defining the terms, by which the counts may be distinguished; provided, however, that the court shall instruct the jury in its charge that the sole purpose of the notations is to be distinguish[ed] between the counts; . . . -26- (emphasis supplied). The portion expressly authorizing the annotations on the verdict sheet was added by 1996 amendment. See Peter Preiser, Practice Commentary, McKinney's Cons. Laws of New York, Book 11A, CPL 310.20, p. 350.7 The term "victim" does not appear anywhere in this section; rather, the statute refers to the "names of complainants." Two different statutes define those terms. Criminal Procedure Law 100.15(1), concerning the "form and content" of informations as well as felony and misdemeanor complaints, defines a complainant as "any person having knowledge whether personal or upon information and belief, of the commission of the offense or offenses charged."8 Criminal Procedure Law 215.20, which is part of the article concerning dispute resolution, defines "victim" as "any person alleged to have sustained physical or financial injury . . . as a direct result of the crime or crimes charged in a felony complaint, superior court information, or indictment." The issue before this Court is whether the trial judge was correct in his conclusion that, for the purpose of the verdict sheet, the stores could be considered "complainants." That conclusion is unassailable, as those stores had knowledge of 7 The language of that amendment permitted this differentiating language only when the court charged the jury on "two or more counts charging a violation of the same section of the law defining an offense . . . " The statute was amended to its present form in 2002. See Preiser, Supplemental Practice Commentary, McKinney's Cons. Laws of New York, Book 11A, CPL 310.20, p. 158. 8 Pursuant to Penal Law § 10.00(7), the definition of person includes "where appropriate" "a public or private corporation, an unincorporated association, a partnership, a government or governmental instrumentality." -27- defendant's criminal conduct. It was at those stores that defendant and his cohorts used the forged cards in order to obtain various goods for which they had no intention of paying. And, those stores supplied many of the witnesses to defendant's crimes, as well as providing records and security tapes showing the behavior of defendant and his accomplices. Thus, under the only definition of "complainant" provided in the Criminal Procedure Law, the stores qualified as "complainants." Still, defendant insists that the stores could not be mentioned on the verdict sheet because they did not qualify as "victims," and the statute purportedly authorizes judges to list only "victims." On its face, this claim is odd, because as defendant, himself, recognizes the statute's plain language includes the term "complainant," not "victim." He argues, however, that this is of no moment, as the Legislature intended for the term "complainant" to serve "as a synonym for 'alleged victim'" (Defendant's Brief at 27). That argument fails under the principles of statutory construction defendant purports to embrace. Under those rules, the statute must be "read and given effect as it is written by the Legislature. . . ." Parochial Bus System Inc. v. Board of Education, 60 N.Y.2d 539, 548-49 (1983), quoting Lawrence Construction Corp. v. New York, 293 N.Y. 634, 639 (1944). Had the Legislature meant "victim," it surely would have said so. See People v. Mitchell, 77 N.Y.2d 624, 626-27 (1991). After all, the Legislature used term "victim" in other articles of the Criminal Procedure Law, see CPL 60.42, 60.43, 215.20, 380.50(2)(a)(1), 420.10(2). Thus, and as this Court has stated, "where . . . the [L]egislature uses different terms in various parts of a statute, courts may -28- reasonably infer that different concepts are intended." See Rangolan v. County of Nassau, 96 N.Y.2d 42, 47 (2001). Indeed, a comparison of the definitions of "victim" and "complainant" shows why the Legislature did not intend for "complainant" in Criminal Procedure Law 310.20 to be synonymous with "victim." The narrow definition in Criminal Procedure Law 215.20 limits victims to those who have sustained physical or financial injury. That is certainly more limiting than the definition of "complainant," which does not require a showing of any harm, but rather only a knowledge of the crime. Plainly, the Legislature used a term with a more expansive definition -- complainant -- precisely because it wanted to give the trial court greater flexibility in crafting verdict sheets.9 In fact, the purpose of the 1996 amendment to Criminal Procedure Law 310.20 was to loosen the strictures concerning what could be placed on the verdict sheet in order to alleviate juror confusion over which counts pertained to which events. See Peter Preiser, Practice Commentary, supra, at 350. Limiting those annotations in the strict 9 The use of the term "victims" in the other statutes underscores that the Legislature intended that "victim" mean something different from and more narrow than complainant. Criminal Procedure Law 420.10(2), which is entitled "Death of victim," governs restitution or reparation payments if the victim dies. Criminal Procedure Law 380.50(2) concerns the rights of victims at sentencing procedures. In both situations it makes perfect sense for the provisions to cover only those directly affected by the crimes, not those who simply have relevant knowledge about the crimes. See People v. Hemmings, 2 N.Y.3d 1, 5 (2004) (the purpose of CPL 380.50(2) was to give those directly affected by the crimes the right to speak at sentencing). -29- manner advocated by defendant would hardly satisfy that goal, as it would confuse the jurors rather than assist them in their deliberations. The instant case illustrates why the Legislature would have wanted to grant this flexibility by using a term with a meaning broader than "victim." Defendant committed identity theft by stealing financial information from a number of credit card holders and placing that information in forged credit cards. For the identity theft charges, then, those account holders were the victims. Defendant committed the larcenies by using those cards to steal from stores and, by extension, the banks. As the banks were the ones that suffered the financial loss, they were the victims of those crimes. Of course, it would have been extremely confusing for the jury had the court differentiated the identity theft counts by the names of the account holders, while differentiating the larceny counts in which defendant made use of the account holders' information by listing the banks. Additionally, in certain cases, the same bank was the victim in connection with different crimes occurring on the same day. Thus, for instance, defendant and his cohorts used credit cards issued from HSBC on March 5th to steal from the Best Buy on 86th Street as well as the one on 5th Avenue. Then, on March 16th, defendant used credit cards issued by US Bank at two different Staples. JP Morgan-issued credit cards were used in a number of different occasions at different stores as well. In all those instances, using the names of the banks would not have assisted the jury at all. The most organized and clearest way to differentiate the various counts was to do -30- exactly as the court did here, and that was to group the crimes by the stores at which they occurred. Moreover, if courts could only include the names of those persons who had suffered a financial or physical harm on the verdict sheets, then there would be circumstances in which they would be prevented from drafting the verdict sheet to aid the jury at all. For instance, proof of a larceny (a crime with which defendant was charged) does not require a demonstration that the owner suffer a financial harm. Rather, larceny can be proved by demonstrating that the defendant or his accomplice moves the property from one place to the next with larcenous intent, even if the owner recovers the property without suffering a monetary loss. See, e.g., People v. Olivo, 52 N.Y.2d 309 (1981) (upholding shoplifting conviction where the defendant was stopped with the property before leaving the store); People v. Alamo, 34 N.Y.2d 453 (1984) (larceny is completed where the thief only had momentary possession of the wallet before the owner recovered it).10 In those instances, there would thus be no "victim," and if the cases involved a number of different larceny counts from different owners, the courts would be unable to place the most logical annotations on the verdict sheet. 10 The larceny statute does not speak in terms of a "victim" at all, but instead requires only proof that property is wrongfully taken from an "owner." Penal Law Section 155.00 et seq. -31- As another example, the forgery charges for which defendant was indicted did not require proof that anyone suffered any harm whatsoever. Pursuant to Penal Law Section 170.25, a person commits the crime of second degree forgery when "with knowledge that it is forged and with intent to defraud and deceive or injure another, he utters or possesses" a forged instrument. In other words, a defendant need only possess the instrument with intent to use it to be guilty of that crime. Under that circumstance, then, there is no victim, as there is no person who has suffered a financial harm. If defendant's interpretation of the statute were given force and effect, the court would again be unable to place the meaningful differentiators on the verdict sheet to allay potential juror confusion.11 Certainly, the Legislature did not intend that its amendment would be inapplicable in so many instances, which is precisely why it chose to use the word "complainant" with its broader definition. B. Defendant's arguments to the contrary regarding the proper reading of Criminal Procedure Law 310.20(2) are readily dismissed.12 Defendant first asserts that 11 To be sure, a court could still list the dates of the crimes. But, of course, where, as here, many of the crimes occurred on the same date, that one piece of information would not be sufficient to permit the jury to differentiate among the counts. 12 Defendant focuses on the First Department's determination that the stores were "proxies" for the complainants and argues that this holding was tantamount to saying that the term complainant included anyone affected by defendant's conduct. He goes on to state that this concept would expand the meaning of complainant to include family members and friends of crime victims as they are affected by defendant's conduct (Defendant's Brief at 28). Of course, the First Department did not remotely suggest that it meant to extend its (Continued…) -32- the reason the Legislature used the term "complainant" in this statute, when it meant "victim," is that the term "'victim' assumes the defendant's guilt -- which, at the verdict-form submission stage is yet to be determined" (Defendant's Brief at 27-28). As defendant sees it, the fact that guilt has already been determined is the reason why the term "victim" appears in the sentencing statutes (Defendant's Brief at 28). First of all, this argument makes no sense. When jurors are charged prior to deliberations, they are not told whether the person listed on the indictment is a "complainant" or a "victim." Rather, the trial judge instructs the jury that the jury must find beyond a reasonable doubt the elements of the crime committed against this person.13 The jury certainly cannot be prejudiced by the use of a noun in the statute that it never hears. Defendant's argument is also undone by the definition of the term victim in Criminal Procedure Law 215.20. There, the term is preceded by the word "alleged," showing that the term was meant to apply even before the defendant's guilt was ______________________ (…Continued) reasoning that far. In any event, we do not rely on the First Department's reasoning that the stores were proxies for the actual complainants. Given the statutory definitions discussed in text, the stores were complainants. Defendant also asserts that the crime locations were proxies for the complainants (Defendant's Brief at 29). But, those locations were only used to differentiate one store from another in the instances in which defendant committed his crimes in more than one chain store. Thus, the locations were merely ways to describe the complainant. After all, the Best Buy at 86th Street was different from the Best Buy at 44th Street. 13 Here, for instance, when charging the jury on the elements of larceny from the banks, the court did not describe the banks either as victims or complainants, but simply said that the jury must find that the People had proven that defendant had stolen from the respective bank, which was referred to by its name (see e.g. Charge: A907-927). -33- established by verdict. Likewise, if defendant were correct then the Legislature would not have chosen to use the word "victim" in Criminal Procedure Law 60.42 and 60.43. Those sections deal with the admissibility at trial of the "victim's sexual conduct," and thus concern proceedings at which the defendant has not yet been convicted. Defendant next contends that by using the names of complainants on the verdict sheet that were different from the ones on the indictment, the court engaged in an improper constructive amendment of the indictment (Defendant's Brief at 29). This complaint is unpreserved, as defendant never raised any objection on this ground at trial. See, e.g., People v. Fuentes, 52 A.D.3d 1297 (4th Dept. 2008); People v. Cepeda, 29 A.D.3d 491 (1st Dept. 2006); People v. Yakubova, 11 A.D.3d 644 (2d Dept. 2004). That trial silence was understandable, as this argument lacks merit. To be sure, under the State constitution, a defendant has a right to be tried by an indictment issued by a grand jury. NY Const. art I, 6. An indictment provides notice to the defendant of the crimes charged and prevents the prosecutor from "usurping the powers of the Grand Jury by ensuring that the crime for which defendant is tried is the same crime for which he was indicted." People v. Grega, 72 N.Y.2d 489, 496 (1988). Thus, this Court has held that deviations from the allegations set forth in the indictment -- either by the proof at trial, or by the jury charge -- may constitute an improper constructive amendment of the indictment when they substantially change the theory of the prosecution. Id. Here, there were no such deviations. As defendant does not contest, the People's trial proof was wholly consistent with the manner in -34- which the counts were pled in the indictment, and the court's charge to the jury on the elements of the crimes mirrored the indictment on each and every charge. Thus, for instance, where the indictment charged defendant with grand larceny for stealing from various banks, the court instructed the jury that it had to find that the thefts had occurred from those banks (see Charge: A900-904).14 Moreover, the court made clear that the annotations on the verdict sheet had no legal significance. The court told the jury as much, and explained that the names of the stores were placed on the verdict sheet solely to assist the jurors in differentiating counts. The jurors were therefore well aware that they could not convict unless they found the elements of the crimes as charged by the court beyond a reasonable doubt. Given that, defendant's claims of constructive amendment must fail. Nonetheless, defendant quotes this Court's statement that "when the indictment specifies a set of facts supporting a material element of the crime charged," the People are not at liberty to present contrary evidence (Defendant's Brief at 29 quoting People v. Roberts, 72 N.Y.2d at 497). He then states, with no support whatsoever, that "[b]y the same reasoning, a verdict form may not substitute material facts either" (Defendant's Brief at 29). However, the court's explanation to the jury 14 In fact, on pp. 30-33 of defendant's brief, he concedes that the court's charge was both correct and fully consonant with the indictment. -35- about the purpose of those annotations completely undercuts his attempt to demonstrate a parity of reasoning. C. Defendant's claim fails for a second reason. Even if the court's annotations to the verdict sheet were not expressly authorized by Criminal Procedure Law 310.20(2), their addition to that sheet still did not constitute error, and even if error, that error was harmless. This Court has previously found that there are some types of written information that are not listed in Criminal Procedure Law 310.20 that may nonetheless be provided to the jury without violating the statute. For instance, in People v. Martell, 91 N.Y.2d 782 (1998), this Court reviewed the trial judge's decision to provide the jury with a court exhibit that included a "Table of Counts and Relevant Exhibits" in response to a jury note about which financial instrument corresponded with a particular count. This Court recognized that in previous cases, such as People v. Damiano, 87 N.Y.2d 477 (1997), People v. Johnson, 81 N.Y.2d 980 (1983), and People v. Spivey, 81 N.Y.2d 356 (1983), this Court had ruled that it was error for the trial court "to supply a jury with any written material containing statutory elements or terms of the charged offenses [without the defendant's consent] and that such error cannot be considered harmless." 91 N.Y.2d at 785. Martell, however, did not come within the ambit of these precedents, since "[u]nlike statutes which pose a risk of misapplication, there was no danger that providing the jurors with this exhibit list would encourage -36- them to take 'on the role of Judges of the law as well as Judges of the facts.'" Id. at 786. Moreover, "[e]ven without the disputed list, the jury could have linked the counts to the exhibits by asking the trial court for the text of counts 2 through 30 of the indictment and either read backs of the court's charge on each of these counts or separate requests for each exhibit count-by-count. There is no meaningful distinction between those laborious procedures and what actually took place." Id. at 786. Thus, the court found no error. Similarly, in People v. Cole, 85 N.Y.2d 990 (1995), this Court found that the trial judge did not err when he included a direction on the verdict sheet of the order in which to consider the submitted charges. This Court distinguished this holding from People v. Sotomayer, 79 N.Y.2d 1029 (1991), in which the Court had reversed the conviction when the trial judge included on the verdict sheet "an unauthorized direction on the effect of the justification defense as well as a direction on the order in which the charges should be considered." 79 N.Y.2d at 992. This Court explained that it was the combination of those two directions that "created a risk that the jury's deliberative process would be 'unfairly skewed.'" Id. at 992. A direction concerning the order of deliberations, however, simply implemented Criminal Procedure Law 310.20's language authorizing the court to place on the verdict sheet the possible verdicts. Id. In People v. Moore, 71 N.Y.2d 684 (1988), in response to a question from the deliberating jury, the trial judge provided the jurors with copies of the indictment. Id. -37- at 686. That indictment stated that defendant had caused the death of the victim "by asphyxiation by smothering." Id. at 691 (Kaye, dissenting). This Court ruled that "[t]he error in doing so, if indeed it was error, was harmless beyond a reasonable doubt and does not require reversal of the conviction." Id. at 686. This Court recognized that it had ruled, in People v. Owens, 69 N.Y.2d 585 (1987), that a trial judge could not provide the jury with a portion of its charge that contained the elements of the crimes, in the absence of the consent of the defense, and that such error was not subject to harmless error analysis. However, providing copies of the indictment was different, in part, because "the counts of the indictment . . . did not entail any of the risks identified in Owens because of the nature of the information . . ." Id. at 687. Further, before providing the indictment to the jurors, the court instructed them that the indictment had no evidentiary value and was therefore not entitled to any weight. Id. at 688. Of course, here, the court did not add any statutory language, but simply included the names of the stores at which defendant's crimes occurred. And, as in Moore, the court instructed the jury that this information had no significance other than to facilitate the jurors' ability to distinguish among the counts. Moreover, as in Martell, the names and locations of the stores at which each of defendant's crimes occurred could have been provided to the jurors had they asked for it. In fact, the People had prepared a chart which was introduced at trial that listed the dates of the crimes, the stores where they occurred, the credit cards involved and the banks that -38- issued those cards. Given the different counts and the length of the trial, the court had every reason to recognize that the jury would have forgotten where some of the crimes had taken place and would therefore be asking for this information. By placing it on the verdict sheet, the trial judge was simply acting efficaciously without in any way skewing the deliberative process. Nonetheless, defendant turns to People v. Miller, 18 N.Y.3d 704 (2012), and insists that it stands for the proposition that the inclusion on the verdict sheet of any annotation not listed specifically in Criminal Procedure Law 310.20(2) constitutes error for which harmless error analysis is inappropriate (Defendant's Brief at 33).15 15 Although defendant states that he should not be required to demonstrate prejudice, he nonetheless claims that, in fact, he was prejudiced by the risk that he would be convicted "in violation of the state constitutional right to trial by indictment" (Defendant's Brief at 34 fn. 7). Defendant turns to a note from the jury asking whether, in connection with the theft at the Best Buy on 5th Avenue of an item that cost $999.99 without tax and $1089.74 with tax, "[i]f a retailer is not paid the price of the item plus tax . . . due to a fraudulent credit card transaction, does the retailer still have to pay out the tax on the item" (Court Exhibit 10). The court explained to the jury that the answer depended, in part, on the victims. In the count at issue, while the verdict sheet did list Best Buy under the Grand Larceny in the Fourth Degree charge, the victim of that theft was HSBC Bank. Thus, the issue of value turned on the amount of money stolen from the bank (Supplemental Charge: A985-87). It is not clear why defendant thinks that the jury's confusion prompting this note raised the risk that defendant's state constitutional rights were violated, especially since the court made sure the jury understood, consistent with that indictment and the proof at trial, that that count concerned money stolen from the bank. In any event, defendant's additional suggestion that this question demonstrates that the jurors might not have "grapple[d] with the complex task of sorting out the proof bearing on the actual elements of the crimes" (Defendant's Brief at 34 fn. 7), is inexplicable: this note showed that that was precisely what the jury was doing. Clearly, the jury was trying to figure out whether the People had established the monetary element of this crime. Moreover, the jury sent out a number of notes asking for clarification on the other larceny counts, as well as to be re-charged on the elements of the other crimes (see Court Exhibits II, III, V, VI, XI, XII, XIV, XV). That the jury asked questions precisely (Continued…) -39- But, Miller hardly goes that far; in fact, it is inapt. There, the trial judge charged the jury on intentional murder and also submitted the defendant's claim that he was under the influence of extreme emotional disturbance. The verdict sheet had a space for the jurors to record their verdict on the second-degree murder charge, and then instructed them that if they found the defendant guilty of that charge, they were to consider his extreme emotional disturbance defense. Toward that end, the verdict sheet included the question, "Has the Defendant established by a preponderance of the evidence that he acted under Extreme Emotional Disturbance?" Id. at 707. This Court rejected the prosecutor's arguments that the 1996 amendments to Criminal Procedure Law 310.20 in essence nullified the Court's prior rulings that a court could not add this type of language to the verdict sheet absent consent of the defendant, and that any error in doing so could not be considered harmless. The Court stated specifically that the amendments "left intact the holding of Damiano" and "the cases on which Damiano was based." Id. at 708.16 In all of those cases, the courts had either placed statutory language on the verdict sheet without the defendant's consent or provided the jury with the text of the statutes; in other words, the courts ______________________ (…Continued) to make sure that they understood the charges undercuts defendant's dismissive assessment of the jury's ability and willingness to arrive at a fair and appropriate verdict. 16 The cases that the Court relied on in Damiano were People v. Spivey, 81 N.Y.2d 356 (1993), People v. Johnson, 81 N.Y.2d 980 (1983), People v. Kelly, 76 N.Y.2d 1013 (1990), People v. Nimmons, 72 N.Y.2d 830 (1988), and People v. Owens, 69 N.Y.2d 585 (1987). -40- had provided the jury with precisely the types of information that created the risk of skewing the deliberative process. The Court concluded that when those holdings were applied to Miller, in which the trial court had added statutory language concerning the burden of proof imposed by Penal Law § 25.00, it was clear that the trial judge had committed an error for which harmless error analysis was inappropriate. Id. But, this Court did not even mention the holdings of Martell, Cole, and Moore; in fact, it did not cite those cases anywhere in Miller. Put differently, this Court left those holdings intact. And, per those holdings, even assuming that the trial court deviated from the language of Criminal Procedure Law 310.20, that deviation was not error, or if error, it did not affect the jury's verdict and thus does not entitle defendant to relief. * * * * In sum, the court's annotations on the verdict sheet were correct. POINT II TRIAL COUNSEL WAS NOT INEFFECTIVE FOR FAILING TO OBJECT TO THE INTRODUCTION OF TESTIMONY ABOUT THE USE A GPS TO LOCATE HIS CAR, AND THE COURT CORRECTLY DENIED HIS MOTION TO SET ASIDE THE VERDICT DUE TO THE INTRODUCTION OF EVIDENCE FROM THE GPS (Answering Defendant's Brief, Point II, pp. 36-54). Prior to trial, the prosecutor provided the defense with a number of investigative reports that reflected that Detective Novellino's team had placed a -41- tracking device on defendant's car without a warrant. Defense counsel did not file a motion seeking suppression of the data collected pursuant to that device. At trial, Detective Novellino testified about one instance in which the device was used to locate defendant's car. After the verdict and prior to sentencing, this Court decided People v. Weaver, 12 N.Y.3d 433 (2009). Counsel then filed a motion to set aside the verdict, pursuant to CPL 330.30, claiming that evidence recovered from the tracking device should have been suppressed. The court denied that motion. As he did before the First Department, defendant complains about the court's ruling on his motion. He also reiterates his claim that counsel's failure to move to suppress evidence derived from the GPS in the first instance constituted constitutional ineffectiveness. Defendant insists that he is entitled to a hearing "on his claim that the warrantless installation of the GPS underneath his car produced fruits that reversibly tainted the verdict" (Defendant's Brief at 42). His arguments are meritless. A. The Relevant Record At some point prior to trial, the People provided the defense with "Investigation Bureau Follow-Up Reports," in which the investigators conducting surveillance detailed the steps that they had taken throughout the investigation (People's Response to Defendant's 330.30 Motion at A1096). These reports reveal that on March 1, 2007, the team located defendant's car parked on the street in -42- Woodhaven and installed a GPS device under the rear bumper. That device was operated by battery and was not wired to the vehicle's electrical system (P-01).17 The reports further reflect that at 9:40 a.m. on Monday, March 5, 2007, one of the wiretap monitors contacted the tracking device and learned that the car was located at a garage at 142nd Street and Jackson Avenue in the Bronx. The investigators had already learned, from other information obtained throughout the investigation, that defendant spent a lot of time at that garage. The investigators went to that location and followed defendant until 10:30 a.m., when surveillance was discontinued (P-02). According to the reports, at 3 p.m. that same afternoon, the team re- commenced surveillance. The tracking device indicated that defendant's car was in the vicinity of Lexington Avenue and 86th Street. As also reflected in those reports, conversations intercepted pursuant to the eavesdropping warrant led the monitors to conclude that defendant might be in a Best Buy in that area. When the team got to that part of Manhattan, however, they could not find their targets. While they were attempting to locate defendant, they received information from the tracking device that the car was travelling south. The team headed in that direction and observed the car, which they then followed to a number of different stores (P-02). 17 Numerical references preceded by "P" are to the People's Supplemental Appendix. -43- The team conducted a number of surveillances on March 6. The report prepared in connection with those surveillances does not state that the team used information obtained from the GPS to locate defendant or his car (P-06-07). On March 8, the team observed defendant's car parked in front of the garage on Jackson Avenue. The team followed defendant from there for approximately one- half hour before losing him in traffic. Over the next two hours, from 11 a.m. to 2:22 p.m., the team sent eight text messages to the GPS device and learned that the car was driving to various locations in the Bronx. At 2:31 p.m., the monitors intercepted a conversation in which defendant arranged to meet his cousin at 135th Street and 7th Avenue. The team drove to that vicinity and located defendant at 135th Street and Adam Clayton Powell Boulevard. The team followed defendant over the next two hours, until defendant, apparently aware that he was under surveillance, approached one of the surveillance officers (P-08-10). On March 12, the team also surveilled defendant's car to a number of locations. The surveillance report does not indicate that the team used the GPS initially, but when the team lost the car in traffic at about 2:27 p.m., they located it about one-half hour later through the use of GPS information obtained from defendant's cell phone (P-13). A report dated March 14 states that the GPS device ceased to function on that date. The team looked for defendant's car in order to replace the batteries but did not locate it until March 15. Although they were able to change the batteries at that time, -44- when they sent a text to the device to test its operability, the device did not respond (P-14. P-15). In the subsequent surveillances, the team relied on authorization granted as part of the eavesdropping warrants to utilize GPS information obtained from defendant's cell phone to locate defendant (P-15-18, P-21-22). On March 22, 2007, the team removed the GPS from the car, tested it and determined that it needed a new SIM chip. The device was not repaired or reattached (P-25). Defense counsel did not move to suppress the fruits of the GPS device prior to trial. In a pretrial colloquy, however, counsel informed the court that defendant had understood that "there was a GPS tracking device either through his phone or on his car," and had directed counsel to ask whether the court would "entertain [a] motion" premised on the notion that "no search warrant was obtained with respect to th[e] tracking device" (A45). Justice Wiley responded that, while he did not have a specific recollection of passing on the tracking aspect of the wiretap applications, he had reviewed the eavesdropping warrants and did not see any basis upon which to suppress information recovered pursuant to those warrants (A46-47). On May 12, 2009, which was about two weeks after the jury had rendered its verdict, this Court decided People v. Weaver. Thus, prior to sentence, defense counsel filed a motion pursuant to Criminal Procedure Law 330.30 to set aside the judgment, arguing, inter alia, that the trial court erred in permitting "evidence regarding the use of Global Positioning System (GPS) device by the investigators . . . " Counsel contended that, in light of Weaver, the investigators should have obtained a warrant -45- before placing the device on defendant's car (Defendant's 330.30 Motion at A1092- 93). In opposing the motion, the People noted that the only mention of the GPS at trial was in connection with the March 5th surveillance. However, Detective Novellino had also testified that, before he was able to find the car on the street that day, the wiretap monitors notified him that they intercepted conversations that revealed that defendant was at the Best Buy at 86th Street and Lexington Avenue (Response at A1047; see Novellino: A244). The People further asserted that they had probable cause to use a GPS device, and that they had obtained court authorization to use the GPS capabilities of defendant's cell phone to locate him when necessary. Lastly, the People argued that there were several differences between the GPS device affixed on defendant's car and the device used in Weaver (Response at A1097). The device in Weaver "recorded all manner of information, including the speed the vehicle had been traveling, where it had travelled, and stored the information such that a law enforcement agent could retrieve it simply by driving past the car on the street" (Response at A1097, fn. 4). Here, the device provided only defendant's location, and it did not do so continuously. Rather, it only alerted the officers to the car's location at the moment when that information was requested (id.). In an oral decision rendered on July 30, 2009, Justice Wiley denied defendant's motion without elaboration (7/30/09 minutes: 2). -46- B. Defendant Has Not Demonstrated That He Was Denied Effective Assistance Of Trial Counsel. Starting with defendant's attack on trial counsel's representation, it falls for several reasons. At the outset, it is not ripe for review. While an ineffective assistance argument can be raised for the first time on appeal, People v. Jones, 55 N.Y.2d 771, 773 (1981), it is appropriate to do so only when a sufficient record has been developed in the lower court upon which a claim of ineffective assistance may be assessed. Id. at 773; see also People v. Satterfield, 66 N.Y.2d 796, 799 (1985); People v. Brown, 45 N.Y.2d 852, 853-54 (1978). Where the factual record on direct appeal is inadequate, a defendant can obtain relief only by expanding the factual record in a post-judgment proceeding pursuant to Criminal Procedure Law 440.10. People v. Love, 57 N.Y.2d 998, 1000 (1982). By that motion, the defendant provides his attorney with the opportunity to explain his reasons for his inactions. Here, defendant did not make a 440.10 motion and on appeal does not even bother to address the import of that inaction. Rather, it appears that defendant is hoping that this Court will find that this is one of those rare instances in which the error was apparent on the face of the record. Necessarily, then, defendant's contention is that the fact that counsel did not file a motion to suppress evidence derived from the tracking device could have had no explanation other than incompetence. However, without some explanation from counsel, this Court has no basis for determining whether his decision to refrain from making a suppression -47- motion was caused by incompetence or whether instead counsel had conducted the research a court would expect from competent counsel and had concluded that such a motion would prove fruitless under the governing law at the time. In any event, even on the limited record before this Court, it is clear that defendant's attack on his attorney's competence must fail. It is well-established that to prevail on an ineffective assistance of counsel claim, a defendant must first overcome the strong presumption that the attorney's performance was reasonably competent. Strickland v. Washington, 466 U.S. 668, 669 (1984). Thus, a defendant must demonstrate the absence of strategic or other legitimate explanation for counsel's conduct. If he cannot carry that burden, the appellate court must presume that counsel acted in a professional manner and exercised professional judgment in his decisions. People v. Taylor, 1 N.Y.3d 174, 177 (2003). Significantly, also, a defendant cannot prevail on a claim of ineffective assistance of counsel without demonstrating that he was prejudiced by his attorney's mistakes. See People v. Benevento, 91 N.Y.2d 708, 713-14 (1998). Under federal law, that "prejudice" component requires that a defendant "show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. at 692, 694. Under New York law, "whether defendant would have been acquitted of the charges but for counsel's errors is relevant, but not dispositive." People v. Benevento, 91 N.Y.2d at 714. -48- The prejudice component under State law focuses on the "fairness of the process as a whole rather than [any] particular impact on the outcome of the case." People v. Henry, 95 N.Y.2d 563, 566 (2000); People v. Benevento, 91 N.Y.2d at 714. Still, this Court has termed a Strickland-type showing of prejudice a "significant" element under New York analysis, People v. Caban, 5 N.Y.3d 143, 155-56 (2005); People v. Stultz, 2 N.Y.3d 277, 284, (1995), so much so that it "would, indeed, be skeptical of an ineffective assistance of counsel claim absent any showing of prejudice." People v. Stultz, 2 N.Y.3d at 283- 84. In assessing counsel's performance, this Court has emphasized that an attorney's effectiveness is judged by the state of the law at the time of the defendant's trial. People v. Henry, 95 N.Y.2d 563 (2000) (noting that an attorney's representation is to be based on a review in totality of the evidence, the law, and the circumstances of a particular case "as of the time of the representation"), quoting People v. Baldi, 54 N.Y.2d 137, 147 (1981). This Court has therefore rejected complaints that trial counsel was ineffective for failing to make arguments that that are "novel and call for an extension of or change in -- not an application of -- existing law." People v. Feliciano, 17 N.Y.3d 14, 28 (2011). Thus, as the lower appellate courts of this state have held explicitly, an attorney is not ineffective for failing to anticipate a change in the law. See, e.g., People v. Abner, 101 A.D.3d 1628 (4th Dept. 2010); People v. Sanchez, 76 A.D.3d 122 (1st Dept. 2010); People v. Brisson, 68 A.D.3d 1544 (3d Dept. 2009). -49- The short answer to defendant's complaint, then, is that given the law at the time of defendant's trial, counsel's inaction in seeking suppression of the GPS information simply does not amount to ineffectiveness. When defendant's trial commenced, the only New York appellate court to have addressed the issue of whether a warrant was required to install a tracking device on a car was the Third Department, in People v. Weaver, 52 A.D.3d 138 (3d Dept. 2008). That court held that no warrant was required. The Third Department based its ruling on United States v. Knotts, 460 U.S. 276 (1983), in which the Supreme Court had held that, because an individual does not have a reasonable expectation of privacy on public streets, there is no Fourth Amendment violation when the police use a beeper to track a defendant's movements on a public highway without obtaining a warrant. 52 A.D.3d at 141. Additionally, the federal courts that had addressed the issue of whether or not the Government was required to obtain a warrant before affixing a tracking device to the undercarriage of a car had held that, pursuant to Knotts, no warrant was required so long as the car was on a public street when the device was attached. See, e.g., United States v. Garcia, 474 F.3d 994 (7th Cir. 2007); United States v. McIver, 186 F.3d 1119, 1127 (9th Cir. 1999); United States v. Williams, 650 F. Supp. 2d 633 (W.D.Ky. 2009); Morton v. Nassau County Police Dept., 2007 U.S. Dist. LEXIS 87558 (E.D.N.Y. 2007); United States v. Moran, 349 F. Supp. 2d 425 (N.D.N.Y. 2005). The police in this case had placed the device on the car while it was on public streets, and had used the tracking device to locate defendant while he was traveling on public highways. -50- While defendant asserts that counsel should still have moved to suppress because the issue was "open" (Defendant's Brief at 51), even he admits that the Third Department's decision was controlling on the trial court at the time of defendant's trial (id. at 49-50, fn. 14). As the law at the time of trial was that no warrant was required, defendant's attack on counsel's ineffectiveness for failing to challenge the warrantless use of this device must be rejected. See People v. Brisson, 68 A.D.3d at 1544 (failure to anticipate the holding in Weaver did not constitute ineffectiveness); United States v. Drayton, 2013 U.S. Dist. LEXIS 28284 (D.Kansas 2013) (counsel not ineffective for failing to file a motion to suppress GPS data given that courts at that time did not require a warrant). Nonetheless, defendant argues that, as counsel was aware that Weaver was pending before this Court at the time of defendant's trial, he should have taken some sort of steps to preserve a possible ground for appeal based on a potential ruling by this Court that a warrant was required (Defendant's Brief at 49-50). However, if it is not ineffective to fail to anticipate a change in the law, it cannot be ineffective to fail to make an objection based on such an anticipation. That is especially true since, as this Court has held, an attorney is not ineffective when he chooses not to raise a claim upon which he cannot succeed. People v. Stulz, 2 N.Y.3d at 287. Since, as discussed supra, a suppression motion would have been denied, counsel's decision not to bring one was not ineffective. -51- Additionally, there were certainly reasons why a competent attorney who had reviewed the facts of Weaver might well have concluded that they were so different from the facts in this case that any decision there would not be applicable here. In Weaver, the GPS device was attached to the defendant's van for 65 days, during which time it was constantly monitoring and recording the van's movements, including the speed at which the car was travelling. 12 N.Y.3d at 436. Investigator Novellino did not use the GPS on defendant's car in any manner that was remotely similar. Here, the detectives did not leave the GPS on constantly, but only contacted it periodically to learn the location of the car at that moment. Then, they used that information so that they could locate defendant to begin following him. In Knotts, the Supreme Court had pointedly reserved for a future date the issue of how it would rule if "twenty-four hour surveillance of any citizen of this country were possible . . . " 460 U.S. at 283. A competent attorney reviewing the case law at the time might well have concluded that the 24-hour surveillance in Weaver touched on the issues left unresolved in Knotts, and thus might merit a different analysis and possibly different holding than the one in Knotts while the way the GPS was employed in the case at bar was acceptable under Knotts. Indeed, even in retrospect, a bid to apply Weaver to this case would be the sort of argument in favor of "extension of" existing law that counsel could not have been faulted for forgoing. See People v. Feliciano, 17 N.Y.3d at 28. In that regard, while defendant criticizes the First Department for concluding that this Court's holding in -52- Weaver was not necessarily controlling here, the court's reasoning was sound. In Weaver, this Court focused on the fact that the Q-ball tracking device tracked the defendant's car continuously for 65 days. This Court then noted that, as a result of this lengthy surveillance, the police were in a position to compile a great deal of information about the defendant's behavior and habits, and it was this collection of information that constituted an unconstitutional invasion of privacy. 12 N.Y.3d at 441-45. Here, the tracking device was only attached to the car for two weeks, during which time it was not on continuously but was only used sporadically. Thus, the police did not collect anything similar to the amount of information collected in Weaver and, in fact, it does not appear that they learned anything about the personal and intimate details of defendant's life. It was sensible both for the First Department and for competent counsel reviewing Weaver to conclude that its holding did not preclude the use of the GPS device here. To be sure, in Jones v. United States, 565 U.S. __, 132 S.Ct. 945 (2010), which was decided even after Weaver, the Court held that the placement of a GPS on the underside of the defendant's car constituted a search within the Fourth Amendment. But that Court specifically left open whether such a search was reasonable on a lesser showing than probable cause, and therefore whether a warrant was even required. Id. at 954; see In the Matter of Cunningham v. New York State Dept. of Labor, __ N.Y.3d __, 2013 N.Y. Slip Op. 4838 **3 (2013) ("neither Weaver nor Jones presented the question of when, if ever, a GPS search is permissible in the absence of a search warrant"); -53- United States v. Sparks, 711 F.3d 58 (1st Cir. 2013) (discussing the issues left open in Jones). Here, the investigators had obtained eavesdropping warrants which authorized the tracking of defendant's cellphone and thus had established probable cause to follow defendant. It may well be that even post-Jones, the Fourth Amendment would not have mandated that they obtain a warrant.18 In any event, Weaver certainly constituted such a significant break with the case law at the time that counsel cannot be faulted for failing to anticipate it. This was the first time that a court of this state had found a right of privacy, not in the location to be searched, but in the information that could be discovered through the use of surveillance devices. See 12 N.Y.3d at 441 (technology that can follow and exhaustively record all of a person's movements over an unlimited period is not "compatible with any reasonable notion of personal privacy"). In fact, as this Court noted, at the time it issued its decision only two other state courts had utilized this reasoning. 12 N.Y.3d at 446, citing State v. Jackson, 150 Wash 2d 251, 76 P.3d 217 (2000), and State v. Campbell, 306 Or. 157, 759 P.2d 1040 (1988). Under these circumstances, defendant is simply wrong in insisting that his case should be the 18 It is somewhat surprising that defendant describes Weaver's holding as one which was permeated by federal Constitutional law (Defendant's Brief at 50 fn. 15). While it is true that this Court discussed Fourth Amendment jurisprudence, this Court stated specifically that it did not "presume to decide the question as a matter of federal law[,]" but rather was deciding the case "under our State Constitution." 12 N.Y.3d at 445. -54- exception to the rule rejecting attacks on an attorney's competence for failing to anticipate changes in the law. Even assuming that counsel was remiss for failing to have anticipated Weaver, defendant still cannot establish that the failure to file a suppression motion constituted ineffectiveness. That is because it is "not [at all] obvious" that counsel could have obtained suppression of any of the People's evidence. People v. Vasquez, 20 N.Y.3d 461, 467 (2013) (where it is "not obvious" that trial counsel could have successfully sought preclusion of certain identification evidence, counsel's failure to make an argument for preclusion did not amount to ineffective assistance). While defendant casually asserts that Novellino's "visual sightings" of defendant and his cohorts as they drove around Manhattan and entered the various stores were subject to suppression (Defendant's Brief at 46), even he does not try to argue that that is true as to any day but March 5, 2007. That is understandable because that was the only relevant day on which the investigators even used the GPS. As to March 5th, defendant offers no basis for asserting that the observations were suppressible fruits. To be sure, in Weaver, the Court suppressed the evidence obtained from the GPS that the defendant's van was at the scene of the burglary at a significant time. But that information was collected directly from the GPS. 12 N.Y.3d at 436-37. In stark contrast, here, the testimony showed that on March 5th, the police used the GPS to put themselves in a position to begin following defendant. Their surveillance was conducted from a public street and while defendant and his -55- cohorts were in public places. The People introduced no record from the GPS itself. Defendant cites to no case in which a court has gone so far as to suppress observations made under those circumstances. Additionally, Novellino's testimony established that the monitors learned from a second, independent source that defendant was in the area in which they first began to observe him on March 5th. The wiretap monitors heard defendant discuss with Barden their presence at the Best Buy near 86th Street and Lexington Avenue, and they relayed that information to Novellino (A244). Thus, defendant cannot even establish that it was only due to the tracking device that Novellino located him at that time. Of course, if the police found defendant as the result of information learned from sources other than the GPS, then their subsequent observations were not the fruit of the GPS, and were not suppressible for that reason. Finally, even assuming defendant could demonstrate that Novellino's observations were the suppressible fruit of the tracking device, he has still failed to establish that their admission at trial resulted in prejudice. To begin, as already noted, there was simply no basis upon which to suppress any of the observations or evidence collected in connection with the crimes that occurred from March 15th to March 17th since, by then, the GPS had ceased to function. Nor was there any basis to suppress observations made on March 6th, since there is no evidence that the police used the GPS to locate defendant on that date. -56- Thus, the only observations that could have been suppressed occurred on March 5th. It should be noted, though, that the team did not use the tracking device to locate defendant until after 3 p.m. that day, which was after Barden had gone to Plaza Collectibles and attempted to purchase the watch from Lee Rosenbloom, Kimberly Smith had gone to the Best Buy on 86th Street and purchased a Sony camcorder and defendant had been intercepted on his cellphone talking with Barden about what had happened inside that Best Buy.19 As a result, none of that evidence was suppressible. At best, then, defendant might be able to show that the fruit of the tracking device constituted the team's ability to locate defendant so that they could follow him first to Plaza Collectibles, where Jones completed the purchase of the watch, then to a second Best Buy on 44th Street, where first Jones and then defendant entered, and finally to the Staples across the street from the second Best Buy, where defendant entered alone. But, even without Novellino's testimony about following defendant and his cohorts to those locations, the jury would still have heard overpowering evidence about defendant's involvement in the crimes at these stores. At each of those stores, the investigators located the various store employees who sold defendant 19 Defendant's claim that the "GPS enabled his team to track [defendant's] car to Best Buy" is somewhat misleading (Defendant's Brief at 44). While it is certainly correct that, as the result of the GPS, the team was able to locate defendant's car on 85th Street and Lexington Avenue, defendant and his cohorts had already completed the theft at that store and were driving away from it. Thus, the use of the GPS did not result in the team being in a position to observe what occurred inside the Best Buy on 86th Street. -57- and his cohorts the electronics that they purchased on that date. Those store employees provided tapes from the security cameras that captured defendant, Jones and Barden in the various stores. Even if it could be said that some of these employees might not have been discovered but for the GPS, their testimony and the documents and tapes they freely provided simply did not constitute suppressible fruit. See United States v. Ceccolini, 435 U.S. 268 (1978) (no suppression where witness' identity was obtained as the result of unlawful search but the witness testified freely and voluntarily); People v.. Mendez, 28 N.Y.2d 94 (1971) (no suppression of witness' testimony where witness' identity was discovered pursuant to an illegal wiretap, so long as information learned from wiretap was not used to coerce witness into testifying). In light of all the independent evidence establishing defendant's guilt of even the March 5th crimes to which the tracking device might pertain, use of that device does not call into question the validity of any of the convictions. See generally Cunningham, 2013 NY Slip Op 4838 **5-6 (dismissing only those disciplinary counts that "depended on GPS evidence," and upholding counts where "the GPS evidence was either substantially duplicated by [other] records or was wholly irrelevant"). In an effort to undermine this other nonsuppressible evidence, defendant counters that he did not enter Plaza Collectibles, and claims that his behavior at the other stores was not obviously indicative of criminality (Defendant's Brief at 45-46). But, defendant was intercepted over the wiretap speaking with his accomplice, Kimberly Jones, while she was in Plaza Collectibles. Then, just moments after Jones -58- had purchased the watch at that jewelry store, he was intercepted attempting to sell precisely the same watch that she had just purchased. Additionally, the testimony about defendant's behavior on the dates after March 5th made clear that defendant and Jones were part of a team. That testimony also provided circumstantial proof that his presence in the stores where she was making her purchases was to ensure that she was not encountering any difficulty. In other words, the People could easily have established defendant's complicity in all of the crimes even without testimony from Novellino concerning his own observations. Lastly, defendant contends that the "investigator's visual sightings of [defendant] enabled by the GPS . . . apparently proved useful to the prosecutor's case on the matter of [defendant's] voice" (Defendant's Brief at 46). It is not precisely clear what defendant means by this statement. What is clear is that defendant referred to himself by name on a number of the phone calls (Novellino: A360). Additionally, Novellino testified that he had become familiar with defendant's voice while acting as a monitor of the wiretapping of defendant's phone. He then also heard defendant speak on the date he was arrested and was therefore able to make a voice comparison at that time (Novellino: A328). Thus, Novellino would have been able to identify the speaker of the relevant phone calls as defendant even without the observations that defendant contends should have been suppressed. -59- In short, defendant cannot show either that his attorney's assistance was ineffective or that, assuming it was, that it affected the verdict or the fairness of his trial. C. The Court's Decision Denying Defendant's 330.30 Motion Was Proper. As the discussion supra helps makes clear, the trial court's summary denial of defendant's motion to set aside the verdict was correct, and defendant's arguments to the contrary are readily dismissed. Indeed, the post-verdict motion was not even an appropriate vehicle for his claim. Criminal Procedure Law 330.30 permits a court to set aside or modify a conviction for "[a]ny ground appearing in the record which, if raised upon an appeal from a prospective judgment or conviction, would require a reversal or modification of the judgment as a matter of law by an appellate court." CPL 330.30(1). That language makes clear that defendant could not use a 330.30 motion to avoid his failure to make a suppression motion. Suppression proceedings are the appropriate means for making a factual record and obtaining a ruling on suppression issues. See CPL Article 700; see also People v. Giles, 73 N.Y.2d 666 (1989) (appellate courts may not rely on trial facts in order to assess a defendant's suppression claim; rather, those facts must be educed at a suppression hearing). Apparently recognizing this roadblock, defendant now asks this Court to conclude that his post-conviction motion "implicitly invoked §710.40(2)," and that the trial judge should therefore have ordered a "belated motion to suppress" (Defendant's Brief at 53). As is clear by his use of the word "implicitly," defendant himself -60- recognizes that he did not ask for such a hearing. Instead, vaguely and in passing, he requested some sort of hearing, without ever suggesting what evidence should be produced. Under those circumstances, there was no reason for the trial judge to divine that this was the type of proceeding defendant was seeking, and the judge certainly cannot be faulted for failing to order a hearing that was not sought. In any event, there was simply no basis to set aside the verdict, even accepting defendant's broad reading of Weaver. First, there were no suppressible fruits, and second, even if there were, there was still more than sufficient evidence in the record to sustain the verdict. * * * * In sum, defendant has failed to demonstrate that his attorney was ineffective, or that the court's denial of his post-conviction motion was erroneous. POINT III THE FIRST DEPARTMENT PROPERLY EVALUATED THE WEIGHT OF THE EVIDENCE SUPPORTING DEFENDANT'S CONVICTIONS OF FIVE COUNTS OF GRAND LARCENY (Answering Defendant's Brief, Point III, pp. 55-66). Defendant was convicted of five counts of Grand Larceny. One count was in connection with the theft of a watch from Plaza Collectibles. The other four counts were for his participation in stealing money from four banks. He and his cohorts created bogus credit cards embossed with account numbers issued by banks to other people, used those cards to purchase merchandise at various stores and then failed to -61- reimburse the banks for those purchases. Before the First Department, defendant argued that the verdicts were against the weight of the evidence. The Appellate Division rejected those claims. Of course, ordinarily there can be no review of the Appellate Division's exercise of its weight-of-the-evidence review powers. People v. Johnson, 10 N.Y.3d 875 (2008); People v. Danielson, 9 N.Y.3d 342 (2007). To avoid this barrier, defendant claims that the Appellate Division applied an "inapt and wrong" standard during the review (Defendant's Brief at 56). But, defendant does not really lay out precisely how the Appellate Division erred in this regard. Essentially, he appears to take the position that the only way the Appellate Division could have found that the verdicts comported with the weight of the evidence was by inappropriately relying on theories of liability that were not part of the court's charge to the jury, and thus not available on appeal. This claim that the Appellate Division committed legal error falls apart because perfectly appropriate theories of liability, amply supported by the evidence, established defendant's guilt of all five charges in question. First, there is absolutely nothing in the Appellate Division's explanation of its rejection of defendant's attacks on the verdict that supports the notion that that court employed an erroneous legal standard. In weight of the evidence review, the reviewing intermediary appellate court must evaluate the evidence based on the elements as charged without objection to the jury. People v. Danielson, 9 N.Y.3d 342, 349 (2007). The First Department stated it was looking at the "elements of the crimes -62- as charged" to the jury, and that "viewing the evidence in light of the charge" the verdict was not against the weight of the evidence (A5). Compare People v. Johnson, 10 N.Y.3d at 875 (case remitted where Appellate Division did not specifically state that it was assessing the evidence in light of the elements charged). To be sure, the court added that "to the extent" that defendant was complaining about the charge, his attack was unpreserved (A5). But that statement did not even remotely suggest that the court meant that it would be looking somewhere other than the court's charge. All it meant was that to the degree that the court understood that defendant was arguing that the jury should have been charged differently, such a claim was unpreserved. The First Department's immediately preceding statement made clear that it was not relying on those proposed differences while conducting its element- based review, but was limiting itself to the elements as defined by the trial court in its charge to the jury. Moreover, defendant's arguments notwithstanding, there plainly was adequate legal basis for upholding the jury's verdict; as a result, his assumption that the Appellate Division must have made some legal error is sorely mistaken. First, defendant's attack on the bank-related larceny charges rests on his efforts to ignore the court's charge. The trial court told the jurors that they had to find that defendant either "took, obtained or withheld" property, namely money, from the various banks (Charge: A898-904) (emphasis supplied). The People's proof was more than sufficient to establish that defendant, acting in concert with his cohorts, "withheld" money from -63- the various banks. As Gabrielle Nohelty, a representative from US Bank explained, once a credit card was swiped through the terminal, the bank that issued the card bore responsibility for paying the merchant the cost of the transaction (Nohelty: A566). And, as all users of credit cards recognize, when a user makes a purchase with a credit card, the user is responsible for paying the cost of that purchase to the bank that issues the card. Here, though, defendant never provided the banks with the money that was properly theirs. Defendant has no merits answer to this theory of liability. Rather, he insists that because the People supposedly "never offered to the court or jury" this theory of withholding based on a failure to pay the credit card bills, the People were barred from advancing it on appeal (Defendant's Brief at 61).20 Defendant is wrong both factually and legally. While discussing the "larceny forged instrument charges" during summation, the prosecutor stated that the defendants "presented [the forged credit card] to the merchant so that they merchant would give them property that they would not pay for because they swiped the card. The merchant doesn't pay for it, but the bank does, and the bank is out thousands and thousands and thousands of dollars. . . " (Summation: A845). That is indeed the "withholding" theory, even if the prosecutor did not use the word "withhold." 20 In support of this contention, defendant cites People v. Chivers, 91 N.Y.2d 500 (1998) (Defendant's Brief at 61). That case, however, has absolutely nothing to do with legal sufficiency or weight of the evidence review, but is instead concerned with the waiver of a legal claim at the trial level. -64- But, it does not even matter whether the People advanced a "withholding" theory, so long as the charge permitted conviction on that theory of liability. A jury verdict is supported by sufficient evidence whether "there is any valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the jury on the basis of the evidence at trial." People v. Bleakley, 69 N.Y.2d 490, 495 (1987) (emphasis added). Similarly, on weight of the evidence review the appellate court must determine "if all the elements and necessary findings are supported by the credible evidence," and then "weigh the relative force of conflicting testimony and . . . inferences." Id. (internal punctuation and citations omitted). In both cases, the question is what the evidence and inferences establish in light of the elements of the crime, not what the People argue. According to defendant, however, the court reduced the meaning of "takes, obtains or withholds" to merely "takes," thereby eliminating "withholds" as a basis for liability. In support of that view, defendant notes that at one point in the charge, the court stated that a person takes or obtains and withholds property when he "takes it without an owner's consent" (Defendant's Brief at 59). That language is identical to the definition of grand larceny in the CJI charge. See CJI2d[NY] Penal Law §155.30. Thus, the drafters took the common-sense view that by simply using the word "takes" in that context, a court would encompass all three theories of larceny. In any event, in other portions of its instruction the court instructed the jury that larceny could be committed in one of three ways: taking, obtaining or withholding (A898, A900, A901- -65- 02, A903; see also Supplemental Charge: A940, A986). Thus, the First Department was entitled to look at all three theories as available options. Defendant fares no better in his complaint about the First Department's weight of the evidence review of the People's proof concerning the theft from Plaza Collectibles. Again, in connection with all of the larceny counts, the court charged the jury that "[a] person wrongfully takes or obtains or withholds property from an owner when that person takes property without an owner's consent" (A900). The court then defined "owner" as "any person having a right to possession of the property superior to that of the person who takes the property" (A899). In response to several jury questions, the court also told the jury without objection that, in so far as the theft of the watch from Plaza Collectibles was concerned, the store was the owner of the watch (A1001, A1007). The People's proof was certainly consistent with those instructions. To begin, that evidence established that Plaza Collectibles was indeed the owner of the watch. Lee Rosenbloom, the store's owner, was the one who made the decision as to whether to sell it and at what price. Thus, the store had a right of possession to the watch that was superior to that of defendant and his cohorts. Penal Law Section 155.00(5). And since defendant did not object to the judge's instruction that Plaza Collectibles was the owner, he cannot now debate that conclusion under the guise of weight of the evidence review. People v. Noble, 86 N.Y.2d 814 (1995). -66- This evidence also proved that defendant and his cohorts stole the watch from Plaza Collectibles by duping Rosenbloom into giving the watch to Kimberly Jones, even though she never intended to pay for it. While it is true that Rosenbloom voluntarily handed the watch to Jones after she tendered the forged credit card as payment, that did not mean that he "consented" to the taking of the property. His consent was premised on the belief that the credit card was not forged and that Jones fully intended to reimburse the bank for the cost of the watch. As that premise was clearly false, the evidence established that no valid consent had been given. See Penal Law Section 155.05(2) (defining larceny to include obtaining property by "false pretenses"); see also People v. Norman, 85 N.Y.2d 609 (1995) (gravamen of larceny by false pretense was wrongfully obtaining property by fraudulently inducing the owner to part with both possession and title through the use of false statements about some prior or existing facts). Likewise, even defendant seems to agree that "using a counterfeit credit card to purchase merchandise" -- which is precisely what defendant's team did to get the watch from Plaza Collectibles -- constitutes larceny by trick (Defendant's Brief at 65). Nonetheless, defendant argues that this evidence did not establish the "store's lack of consent" because the store handed over the watch only after the credit cards were swiped and approved. He theorizes that, at that point, "the power of approval (consent) resided with and was exercised by the issuer-banks," as they were the ones that suffered the loss (Defendant's Brief at 64). Defendant recognizes that larceny -67- includes common law larceny by trick, and that this theory could "embrace such acts as using a counterfeit credit-card to purchase merchandise" and thus could have vitiated "any" consent. However, he insists that because the trial court did not specifically charge on either larceny by false promise or false pretense, neither was available to the First Department in conducting its weight of the evidence review (Defendant's Brief at 65-66).21 While defendant's reasoning is somewhat difficult to follow, it is based on several incorrect assumptions. To begin, the fact that the banks suffered the ultimate financial loss did not make Plaza Collectibles any less of an owner of the watch. The larceny statute does not speak in terms of "victims," but rather "owners." Thus, as discussed in Point I, supra, a person may be convicted of larceny even when the owner suffers no loss because the property is returned. See People v. Olivo, 52 N.Y.2d at 309; People v. Alamo, 34 N.Y.2d at 453. And, as discussed supra, the statute defines the term "owner" as one with a right of possession superior to that of the defendant, and Plaza Collectibles clearly qualified as an "owner." Thus, to the extent defendant is trying to suggest his cohorts' interactions with Plaza Collectibles owner Lee Rosenbloom were irrelevant, he is wrong. 21 Oddly, defendant does not expressly contend that the judge had to instruct the jury on larceny by trick. -68- Defendant is also incorrect in his claim that the trial court was required to charge the jury on a specific theory of larceny before the Appellate Division could rely on it in conducting its weight of the evidence review. Penal Law § 155.45(2) states that "[p]roof that the defendant engaged in any conduct constituting larceny as defined in section 155.05 is sufficient to support any indictment . . . for larceny," with the exception of extortion. The purpose of this section was to "permit conviction upon pleading and proof charging and establishing larceny regardless of the basic common-law offense underlying the particular case." People v. Johnson, 39 N.Y.2d 364, 369-70 (1976) (emphasis supplied), overruled on other grounds, People v. Carpenito, 80 N.Y.2d 65 (1982). In the same vein, Penal Law § 155.05, the statute defining larceny, broadly includes all common law larceny offenses as well as several statutory offenses not previously considered larcenies. This Court has recognized that the statute was so "designed to eliminate the risk that a prosecution might fail because the evidence at trial proved that the defendant 'stole the property in a manner different from the manner charged in the accusatory instrument.'" People v. Foster, 73 N.Y.2d 596, 605 (1989). Given the legislative intent, it cannot be that the trial court is required to charge on all specific theories of larceny. Equally nonsensical is the notion that, when the trial court charges the general definition of larceny, the Appellate Division, in conducting its weight of the evidence review, could not evaluate the evidence by relying on all theories available under Penal Law § 155.05. -69- Other language in the larceny statutes makes clear that defendant's restrictive view is wrong. In certain instances, the Legislature required the People to plead specifically and the court to charge specifically a particular theory of larceny. For instance, because the Legislature was concerned that the definition of larceny by false promise might lead to conviction for what was in essence a civil wrong, it made sure to impose a greater burden of proof on the People that then must be charged to the jury. People v. Foster, 73 N.Y.2d at 604; People v. Norman, 85 N.Y.2d 609 (1995). And, the Legislature required that an indictment specify when the theory of larceny is by extortion. Penal Law Section 155.45(1). Had the Legislature intended that the People specifically plead and the court specifically charge the other theories of larceny, it certainly would have said so. Thus, defendant is wrong to insist that the Appellate Division could not evaluate whether the evidence established larceny by false pretenses or larceny by trick because the trial court charged on general theories of larceny without specifically referring to these theories.22 22 Indeed, defendant is unable to provide this Court with any cases that support his interpretation of the law (Defendant's Brief at 65-66). Instead, with one exception, he resorts to relying on cases that merely hold that the People need not rely on a false promises theory if the evidence supported a different theory, People v. King, 85 N.Y.2d 609 (1995), People v. Stuart, 51 A.D.2d 547 (1st Dept. 2008); or simply note that the court did give instructions on specific theories without suggesting that such instructions were mandated, People v. Watson, 284 A.D.2d 212 (1st Dept. 2001); or, contrary to defendant's representations, say nothing about the content of the court's instructions, People v. Ponnapula, 229 A.D.2d 257 (1st Dept. 1997). The one arguable exception is People v. Salas, 258 A.D.2d 182 (3rd Dept. 1999), affirmed, 95 N.Y.2d 254 (2000). There, in passing, the Third Department stated that "the (Continued…) -70- In sum, as the First Department used the correct standard in concluding that the weight of the credible evidence established defendant's guilt of the larceny convictions, defendant's attempt to challenge that conclusion must be rejected. POINT IV THE COURT PROPERLY DENIED DEFENDANT'S REQUEST FOR APPOINTMENT OF A VOICE ANALYSIS EXPERT (Answering Defendant's Brief, Point IV, pp. 61-72). At a calendar call on February 18, 2009, about three weeks before trial began and after the case had been pending for nearly two years, defendant's attorney reported that defendant wanted the court to assign a "spectrographic analysis expert." According to counsel, defendant was contending that "some of the calls that are attributed to him, were not by him, that other people had access to his cell phone." Counsel continued that, "[h]e's asking me to ask the Court. I don't believe that's going to be a factor in this case but he asked me to ask the Court" (A44). ______________________ (…Continued) People were required to allege the particular theory of larceny on which they were relying." Id. at 190. But, the court cited only Penal Law § 155.45(1) for that proposition, and as discussed, that statute actually stands for the exact opposite proposition. Moreover, the Third Department then went on to endorse the opposite proposition, saying that a larceny conviction could be supported by "pleading and proof charging and establishing 'larceny' in its broadly defined form regardless of the basic common law offense underlying the particular case." Id. (citations omitted). The case also says nothing helpful to defendant about the jury instructions, merely noting that the judge had charged that a larceny conviction could be premised on a representation that conceals or omits a relevant fact. Id. Not only did the Third Department not hold that such a charge was required, the charge did not involve the type of larceny "theory" defendant now claims must be charged. -71- The court denied the application. The court noted that such a request raised three issues. First, the court was unaware of the existence of experts in this area; second, this was a "late request;" and lastly, the court was unsure of whether this was "a recognized field." The court continued that, without more information, it could not "appoint an expert in a vacuum like this," and explained that, at the least, this request should have been made in writing, although the court did not "see [itself] granting such an application" (A45). Defendant never filed a written request, but renewed the application orally on several occasions, including March 9, 2009, the day the trial began. Counsel reminded the court that defendant had asked for an expert witness to listen to the voices on the "wiretap" to "authenticate them," and stated that the court had indicated that that was "a factual issue for the jury . . . and not for an expert." Justice Wiley stated that "I think" that was the previous ruling, and that it was "still my ruling" (A53; see also A130-31, A791). Defendant now contends that the court's refusal to grant his request for a voice expert "reflected [a] failure to exercise discretion" and that this failure denied him his fundamental right to present a defense (Defendant's Brief at 68). He also insists that the court was required to conduct a hearing to determine whether evidence concerning voice spectrographic analysis was scientifically reliable (Defendant's Brief at 68-69). These complaints are unpreserved, however. First, defendant never protested that the judge was failing to exercise his discretion. He also never asked the -72- court to conduct a Frye hearing, let alone complained when the court did not order one. See People v. Angelo, 88 N.Y.2d 217, 223 (1996). Nor did defendant alert the court, as he was required to do, that in his view, its ruling constituted a constitutional deprivation. Id. at 222. In the absence of appropriate protest, this Court does not have jurisdiction to review these claims. In any event, defendant's claims are meritless. To be sure, "when a State brings its judicial power to bear on an indigent defendant in a criminal proceeding," the State must act "to assure that the defendant has a fair opportunity to present his defense." Ake v. Oklahoma, 470 U.S. 68, 74 (1984). Toward that end, when the defendant is unable to afford the "basic tools of an adequate defense or appeal," the state must provide them. Id. at 77. However, before a defendant is entitled to appointment of and payment for an expert, he must offer "more than undeveloped assertions that the requested assistance would be beneficial . . ." Caldwell v. Mississippi, 472 U.S. 320, 324 n. 1 (1984). The New York Legislature has enacted a procedure by which indigent defendants are provided assistance in retaining those experts that are necessary for their defenses. Pursuant to New York County Law § 722-c: Upon a finding in an ex parte proceeding that investigative, expert or other services are necessary and that the defendant . . . is financially unable to obtain them, the court shall authorize counsel, whether or not assigned in accordance with a plan, to obtain the services on behalf of the defendant or such other person. . . . -73- Thus, an indigent defendant will be able to obtain funding for a court-appointed expert so long as he can show that that expert's services are "necessary." In establishing that necessity, the appellate courts of this state have required that a defendant do more than offer "vague and speculative" reasons for the need for the requested expert. People v. Wilkerson, 94 A.D.3d 423, 426 (1st Dept. 2012); see also People v. Burgess, 270 A.D.2d 158 (1st Dept. 2000) (court properly denied the defendant's request for appointment of an expert as reasons offered were speculative). These courts have held that the defendant must demonstrate that the "expert's proposed testimony was necessary or relevant to [a] significant issue at trial." People v. Herrnkind, 49 A.D.3d 555, 555 (2nd Dept. 2008); see also People v. Carpenter, 240 A.D.2d 863 (3rd Dept. 1997) (court properly rejected the defendant's request for appointment of psychiatric expert where the defendant failed to establish that his sanity at time of offense would be an important factor at trial). Those courts have also held that the decision as to whether to authorize funds for the services of an expert is committed to the sound discretion of the trial court. People v. Wilkerson, 94 A.D.3d at 426; People v. Brown, 67 A.D.3d 1369 (4th Dept. 2009); People v. Herrnkind, 49 A.D.3d at 555; People v. Brand, 13 A.D.3d 820 (3d Dept. 2004). Of course, this Court does not review discretionary decisions absent a showing that the lower court abused its discretion so to have committed an error of law. People v. Walker, 83 N.Y.2d 455, 458-59 (1994); People v. Ventura, 35 N.Y.2d 654, 655 (1974). -74- Here, defendant contends that, in rejecting defendant's request, the court failed in the first instance to exercise any discretion at all (Defendant's Brief at 67). For support, defendant turns to the colloquy just before the commencement of trial, when counsel reminded Justice Wiley that defendant had asked for an expert, and represented that the issue of voice identification was "not for an expert to determine." It appears that defendant believes that the fact that the judge responded that he "thought" that that had been his ruling meant that he had concluded that he had no choice but to deny defendant's request (Defendant's Brief at 68). Defendant seeks to load an incorrect casual recollection with far too much significance. After all, the record of the initial ruling in fact shows that, while Justice Wiley had doubted that he would grant defendant's request, he informed defendant that he was more than willing to review that request if it was made in writing and with more detail. Had he believed that he had no legal option but to deny the request, he never would have offered defendant this opportunity. Notably, too, at no point did the judge actually state that he had no discretion to grant defendant's request. Rather, a fair reading of the record is that the court did exercise his discretion; he just did so in a manner adverse to defendant. See People v. Walker, 83 N.Y.2d at 485-86. Defendant certainly cannot demonstrate that the court abused its discretion as a matter of law in declining to allow defendant to retain and call an expert. First, the judge was right to protest that defendant's application had so little detail that he was inappropriately being asked to appoint an expert in a "vacuum." Defendant merely -75- stated that he wanted to contest whether the voice on some of the calls was his and that he sought an expert in voice spectrography to do so. He gave the court no details as to what this type of expert could do or how he could do it. For example, he did not explain what tests or processes such an expert might use, or offer the court any basis to conclude that the tools used by such an expert would be more accurate than the police voice comparisons. Thus, he provided the court with no basis for concluding that such an expert could provide any reliable evidence concerning the accuracy of the conclusions that the police had arrived at about the identity of the speakers on the phone calls. And, despite being given the option to supply those details in a written motion, defendant chose not to do so. Finally, and perhaps most importantly, defendant's attorney himself informed the court that the issue of the identity of the speaker on these calls would not be significant to the defense. Thus, defendant could hardly make out the requisite showing that appointment of an expert was necessary. The timing of defendant's request further supports the trial court's rejection of it. Defendant was arrested and arraigned on the indictment in May 2007. Pursuant to Criminal Procedure Law 700.70, the People were required to provide him with the wiretap applications within 15 days of that arraignment. In other words, defendant was aware for almost two years that the People intended to introduce certain conversations against him. However, defendant waited until the trial was about to commence before making his request. It is well settled that the "granting of an -76- adjournment for any purpose is a matter resting within the sound discretion of the trial court." In re Anthony M., 63 N.Y.2d 270, 283 (1984). That includes granting of adjournments so that defendants can obtain witnesses. People v. Becoats, 17 N.Y.3d 643 (2011). Given the timing of defendant's request, then, it was an appropriate exercise of the court's discretion to deny what it correctly termed a "late request." Id. at 653 (court justified in denying adjournment to obtain witness where the defense had not acted with diligence in attempting to secure his presence). While it is true that defendant did not expressly request an adjournment, the timing of his application ensured that one would have been necessary were his request for an expert granted. Indeed, this adjournment would, of necessity, have been quite lengthy. Defendant had not indicated that he was aware of a particular expert, or that he had the names of someone whom he had been waiting to hire pending the court's permission. In other words, he still would have needed to find an expert to consult. Then, as the court recognized and defendant did not contest, it was not at all clear that spectrographic analysis has been recognized in the scientific community. In fact, defendant concedes that the court would have had to conduct a Frye hearing before it could admit this evidence (see Defendant's Brief at 69). In other words, granting defendant's request would have significantly delayed the commencement of defendant's trial. Thus, when the true need for this lengthy postponement is considered along with defendant's failure to supply any details about what this expert might testify to -77- and counsel's assessment that a spectrographic expert would not have had any real impact on the case, there can be no doubt that the court's ruling denying defendant's request was well within its discretion. And, because defendant failed to establish that he was entitled to the expert in the first instance, his assertion that the court should have held a Frye hearing to determine the scientific reliability of the spectrographic analysis (Defendant's Brief at 69) necessarily fails. In any event, any error in rejecting defendant's application was harmless. For the most part, the proof of defendant's guilt came from eyewitness testimony describing his conduct in entering the various stores and making purchases, as well as the receipts from those transactions and the bank records documenting that the credit cards that were used to make those purchases were forgeries. This evidence also corroborated the wiretap monitors' conclusion that it was, in fact, defendant's voice on the phone orchestrating the crimes. Additionally, the calls introduced were ones intercepted over a phone registered to defendant's mother and, in a number of them, defendant introduced himself by name (Novellino: A241-242, A360) -- strong proof that defendant was, in fact, the person speaking. Consequently, defense counsel was perfectly right to predict that the issue of voice identification would not be a factor. Finally, it bears note that defendant has never specifically alleged which of the calls introduced at trial were incorrectly attributed to him. His failure to do so suggests that he recognizes that he was accurately identified in those calls. -78- In sum, defendant's unpreserved attack on the court's refusal to appoint a voice analysis expert should be rejected. POINT V DEFENDANT CAN IDENTIFY NO LEGAL ERROR CONCERNING HIS SENTENCE, WHICH WAS PROPER (Answering Defendant's Brief, Point V, pp. 73- 84). At a sentencing proceeding conducted on July 30, 2009, the court adjudicated defendant a second felony offender based on a federal conviction for conspiracy. The court then sentenced defendant to a cumulative prison term of from fourteen to twenty-eight years, imposing the maximum term for each conviction but imposing some concurrent sentences (A1083). Defendant subsequently filed a motion pursuant to Criminal Procedure Law 440.20, in which he contended that the court's predicate felony adjudication was in error because the federal conviction did not have an appropriate New York felony analog. The court granted defendant's motion and vacated the sentence. On May 10, 2011, the court resentenced defendant to the maximum term of from two and one-third to seven years on each of the D felonies and one and one-third to four years on each of the E felonies. As in the initial sentence, the court ordered that four of the D felonies be served consecutively to each other and the remainder of the terms run concurrently, so that the cumulative prison term was from nine and one-third to twenty-eight years (A1115-19). -79- Defendant raises a litany of complaints about this sentence. Defendant contends that the trial judge abused his discretion as a matter of law by "essentially imposing the same sentence that [he] had imposed" when he had incorrectly adjudicated defendant as a second felony offender. He adds that the disparity between defendant's sentence and that of his co-defendant was, in essence, punishment for his having proceeded to trial (Defendant's Brief at 78, 80). Defendant then maintains that the court's "apparent unwillingness" at the resentencing to consider his stellar behavioral record while incarcerated and his mother's failing health "violated his federal and state due-process rights to reliable sentencing" (Defendant's Brief at 79). Finally, defendant complains that the Appellate Division violated his Eighth Amendment protection against cruel and unusual punishment when it refused to reduce his sentence (Defendant's Brief at 83). Thus, he asks that his conviction be "reversed and the case remanded for resentencing to the trial court" (Defendant's Brief at 83). Alternately, he asks that this Court remand the case to the First Department for "a constitutionally proper review of his sentence" (id.). Defendant's attacks are misguided. In fact, defendant's attempts to bring the length of his sentence within this Court's review powers must be rejected. "It is well settled that any question as to whether an otherwise lawful sentence is harsh or severe in a particular case involves a type of discretion not reviewable by the Court of Appeals." People v. Thompson, 60 N.Y.2d 513, 521 (1983); see also People v. Jones, 39 N.Y.2d 694 (1976). In an effort to -80- avoid that limitation on this Court's review power, defendant cites to People v. Naranjo, 89 N.Y.2d 1047, 1049 (1997), and seeks to convince this Court that in Naranjo this Court held that it could review the excessiveness of legal sentences for abuses of discretion (Defendant's Brief at 78). In fact, however, this Court's holding in Naranjo was much more limited. There, this Court noted that while a sentencing court had wide latitude in fashioning its sentence, that discretion was not limitless. This Court then determined that the sentencing court had violated the defendant's due process rights when it relied, in fashioning a sentence, on statements by the prosecutor that constituted "'materially untrue' assumptions or 'misinformation.'" Id. at 1049. In other words, the Court found that the sentencing court had made a legal error that affected its sentencing determination, and that therefore the Court had jurisdiction to review and correct that legal error. However, the Court never indicated that it was expanding its review power to include the length of those sentences that were imposed even when no actual legal error was at stake. Although defendant makes numerous efforts to find an actual legal error concerning his sentence, he has failed miserably. Boiled to its core, defendant's first complaint is that it was somehow improper that the sentence the court imposed at the resentencing was only incrementally less than the sentence imposed when the court believed that he was a predicate felon. Defendant has failed to demonstrate, however, that the fact that he was not, in fact, a second felony offender in and of itself entitled him to a sentence that was significantly less than the one imposed when the court was -81- mistaken about his predicate status. He cites absolutely no precedent to support that proposition. Moreover, that proposition makes no sense. Defendant had still committed the same series of crimes in this case and his criminal record -- including his prior federal conviction -- had not changed. The only difference was the technical one that the prior federal conviction did not qualify as a predicate crime. As a result of that, he had to be resentenced within the parameters set for a first time felony offender. He was so resentenced; that was the only relief to which he was legally entitled. In any event, defendant is incorrect in his claim that the sentence the court imposed once it determined that he was not a predicate was only incrementally less than the sentence that originally had been imposed. The court originally sentenced defendant to an aggregate term of from fourteen to twenty-eight years' incarceration, while at the resentencing, the court imposed a sentence of from nine and one-third to twenty-eight years. Defendant turns, however, to Penal Law § 70.30(1)(b)'s capping provisions, which require that he serve only from 10 to 20 years of the original sentence. He thus concludes that, as a practical matter, the court only reduced his sentence by one year (Defendant's Brief at 78). However, Penal Law § 70.30 is not a sentencing statute; it is a statute that directs the Department of Corrections as to how to calculate how much time a defendant must serve. See People v. Moore, 61 N.Y.2d 575 (1984). Any later application of the caps says nothing about the sentence the court actually imposed. -82- Next, defendant complains that the trial judge did not take into account his lack of disciplinary record and mother's failing health in fashioning its sentence. According to him, this "unwillingness" to take those factors into account constituted a violation of defendant's "due process rights to reliable sentencing" (Defendant's Brief at 79). Defendant's complaints about reliability are odd, since he never provided any documentation about his behavior while incarcerated. Nor did he provide either documentation or detail about his mother's health; he merely said that he "had a mother who is sick" (A1111). In any event, the court did not act or decide not to act based on incorrect information provided by the prosecutor, as in Naranjo. Rather, it implicitly determined that defendant's unsupported claims about his prison record and his mother's health did not provide compelling mitigation.23 That determination surely presents no legal issue of any sort for this Court's review, no matter how much defendant dislikes it or pretends that any sentence other than the one he prefers is "unreliable." See People v. Walker, 83 N.Y.2d at 459 ("Distilled to its essentials, defendant's present appellate claim is really nothing more than a disagreement with the ultimate outcome of the trial court's discretionary balancing determination. Such 23 Having presided over defendant's trial, the court was certainly aware that defendant was a con man who was more than capable of lying when the situation required it. Thus, given the lack of corroboration of his claims about both his mother's health and his disciplinary record while incarcerated, it was not surprising that the court would not view those claims as reasons to reduce defendant's sentence. -83- a disagreement does not furnish a cognizable ground for intervention by this Court, which is limited to resolving questions of law"). Still foundering for some basis in which to bring his excessive sentence claim within the ambit of this Court's review, defendant then insists that the difference between the sentence he received and that of his co-defendant Jeffrey Barden, who pleaded guilty to third-degree grand larceny in exchange for a sentence of two to four years' incarceration, demonstrates that he was punished for exercising his right to trial (Defendant's Brief at 80). Defendant recognizes that this Court has held that "it is . . . to be anticipated that sentences handed out after trial may be more severe than those proposed in connection with a plea (Defendant's Brief at 80 citing People v. Pena, 50 N.Y.2d 400, 411-12 [1980]). He suggests, however, that he might well have accepted a plea bargain and spared the People the expense of a trial, but none was offered. Of course, defendant points to no case or statute that states that he has the right to a pre- trial plea offer. Defendant certainly could have pled guilty to the entire indictment, even without an offer, CPL 220.60(1), and asked the court to take his willingness to spare the People a trial into account in fashioning it sentence. In any event, defendant's assertion that the People did not make any sort of pre-trial offer is factually wrong. To be sure, at the re-sentencing in 2011, defendant's attorney stated that she could "discern no plea offer that was ever extended to" defendant (A1107). The attorney who made that statement was the fourth attorney who had represented defendant, and she had not begun her representation until after -84- defendant had been initially sentenced in July 2009. Thus, she was not aware that the People had had discussions with a prior attorney about the possibility of a plea and defendant had indicated his unwillingness to plead guilty.24 Nonetheless, defendant insists that the fact neither the People nor the court contradicted that statement is proof that it was correct (Defendant's Brief at 81, fn. 20). That the People chose not to respond to every one of the litany of defendant's complaints hardly indicated their acquiescence to those arguments. Moreover, as both the prosecutor and the court were aware of what had transpired previously, the prosecutor understandably saw no need to prolong the proceedings by correcting counsel's error. Furthermore, Barden was so differently situated from defendant that there is simply no basis for comparison. As defendant is aware, Barden cooperated with the prosecution and provided them with information that led to other arrests. Moreover, his role in defendant's criminal scheme was significantly less than defendant's. While Barden did make several purchases on March 5th and March 6th, he was not the one who tendered a credit card for the 12 purchases that were made or attempted on March 15th and March 16th. Thus, the difference in sentences could in no way be attributed to punishment for defendant's decision to proceed to trial. 24 Significantly, during the initial sentencing proceeding in 2009, defendant's attorney at that time never suggested to the court that defendant would have been willing to accept responsibility for his conduct and plead guilty if only the People had made him an offer (A1064-86). -85- As to defendant's Eighth Amendment complaint, it is readily dismissed. Defendant seems to be asserting that the Appellate Division's refusal to reduce his sentence, while having affording sentencing relief to other "defendants with less than spotless records and in arguably more aggravated cases," constituted a violation of the Eighth Amendment's prohibition against cruel and unusual punishment (Defendant's Brief at 82-83). Notably, defendant does not attempt to argue that the trial judge's imposition of that same sentence violated the Eight Amendment. That claim requires preservation, People v. Nivese, 2 N.Y.3d 310 (2004), and defendant failed to raise that complaint before the trial court. Thus, it appears that defendant is attempting to make an end run around his preservation obligation by focusing on the Appellate Division's decision not to exercise its interest of justice powers to afford him his requested relief. This attempt clearly has fallen short. To begin, as defendant's trial silence indicates, he recognized that his sentence did not constitute cruel and unusual punishment. If the sentence as imposed in the first instance did not violate the Eight Amendment, then it can hardly be that the Appellate Division's decision to leave that sentence intact constituted a constitutional violation. No matter the stage of the proceeding, though, it is preposterous to suggest that defendant's sentence violated the Eighth Amendment. As the United States Supreme Court has explained, in noncapital cases, the "Eighth Amendment does not require strict proportionality between crime and sentence. Rather, it forbids only -86- extreme sentences that are 'grossly disproportionate' to the crime." Ewing v. California, 538 U.S. 11, 23 (2003). Here, defendant's sentence, far from being disproportionate to the crime, was richly deserved.25 Defendant was convicted of 23 felonies in connection with his involvement in the actions of his criminal enterprise during a several-day period. These crimes took forethought and planning. In order to run a scheme such as this, defendant had to locate someone who could provide him with the stolen credit card numbers. He had to learn how to make forged credit cards and then had to obtain the necessary tools such as a reader/writer machine, to encode the stolen credit card account numbers onto blank cards. He also had to obtain the blank cards themselves, and an embosser that could make those cards look real. He then had to take steps to assure that he was not caught, such as by calling clearinghouses to ascertain whether the real owners of the accounts had cancelled their cards. Moreover, defendant did not suddenly have a change of heart and cease committing these crimes; he was arrested. In other words, defendant ran a criminal organization that was responsible for stealing significant sums of money from a number of banks. That behavior merited the punishment imposed. Under those circumstances, the trial court did not violate defendant's constitutional rights in imposing the sentence that it 25 In an effort to convince this Court to grant him relief, defendant lists other cases in which the Appellate Division reduced the defendants' sentences (Defendant's Brief at 82). However, any such comparison is beside the point, as the question is whether defendant's sentence was disproportionate for defendant's crime. Thus, his effort to invite comparison with other cases, with only minimal reference to the sentences and the facts underlying the crimes in those cases, is simply unconvincing. -87- did, and the Appellate Division did not violate those rights in refusing to exercise its interest of justice power to reduce it. In sum, defendant has not demonstrated that this Court may review his sentence or that it, in any way, constituted a constitutionally inappropriate punishment. CONCLUSION The order of the Appellate Division should be affirmed. Respectfully submitted, CYRUS R. VANCE, JR. District Attorney New York County BY: SUSAN AXELROD Assistant District Attorney ALAN GADLIN SUSAN AXELROD Assistant District Attorneys Of Counsel August 22, 2013 -88-