Request to Proceed Pro Se Untimely If Made After Start of Jury Selection

When must a defendant invoke his or her right to proceed pro se in order for the request to be considered “timely”? In People v. Crespo (Ct. App. 10/16/2018) (4-3), the Court of Appeals held that a request to proceed pro se is timely if made “before the commencement of trial,” defined as before the start of jury selection. After the start of jury selection, the right to proceed pro se is “severely constricted,” but the trial court may grant such an application in its discretion. Judge Rivera authored a lengthy dissent, joined by Judges Fahey and Wilson.

Non-Party Cannot Appeal Order Denying Motion to Quash Subpoena Issued During Criminal Proceeding

An order resolving a nonparty’s motion to quash a subpoena issued prior to the commencement of a criminal action is final and appealable. However, in Matter of People v. Juarez (Robles) (Ct. App. 6/27/18) (per curiam) (4-3), a closely divided Court of Appeals held that no direct appellate review is authorized for an order resolving a nonparty’s motion to quash a subpoena issued after the commencement of a criminal action.

This case arose out of a criminal prosecution in which the People charged Conrado Juarez with one count of second-degree murder for the killing of “Baby Hope,” a four-year-old girl. In 1991, the victim’s partially decomposed body was found in a cooler near the Henry Hudson Parkway. She had been sexually assaulted and suffocated, but the semen investigators discovered was too degraded for analysis. For two decades, police could not identify the victim or the killer. In 2013, officers tracked down the victim’s mother, and from there, identified defendant as the probable killer. After his arrest, defendant Juarez gave a videotaped confession in which he admitted to strangling the victim during a sexual encounter.

After giving the videotaped confession and while in pre-trial detention, the defendant gave an interview to nonparty Frances Robles, an investigative reporter with the New York Times. The Times subsequently published a story based on this interview, in which the defendant offered an alternate account of the victim’s death that differed in some respects from the video-taped confession.

Before defendant’s Huntley hearing, the People obtained two subpoenas meant to compel Robles’ participation in the case: one for Robles’ own testimony and one for Robles’ written interview notes. Robles moved to quash both.

Intent to Cause Serious Physical Injury Does Not Preclude Finding of Depraved Indifference

In People v. Wilson (Ct. App. 6/14/2018) (Garcia, J.), the Court of Appeals held that evidence of the defendant’s sustained assaults against his girlfriend over a period of two months, resulting in broken bones, brain injury, and permanent cognitive impairment, was sufficient to support a conviction for depraved indifference assault (Penal Law § 120.10[3]).

The defendant moved in with the victim in January 2011 shortly after meeting her and shortly thereafter began subjecting her to regular, severe physical violence. In August 2011, she suffered a burst blood clot on her ear and visited the hospital, where the doctor noted signs of previous trauma, including bruises that had healed abnormally. In September 2011, the defendant spoke with the victim’s mother and told her the victim was “acting possessed” and “banging her head against the wall.” The victim’s mother cleverly suggested her daughter receive a spiritual blessing with the aim of using the ceremony as a way to check on her daughter. Defendant also spoke with a friend around this time who heard moaning in the background over the phone and told defendant to take the victim to the hospital.

Identity Theft

In People v. Roberts (Ct. App. 5/3/2018) (Rivera, J.) (6-1), the Court of Appeals held that the statutory requirement that a defendant assume the identity of another person is not a separate element of the crime of identity theft, but merely introduces categories of conduct through which an identity may be assumed. Thus, a person is guilty of this relatively new crime (established in 2002) if he or she uses the personally identifying information of another.

The case was heard as a consolidated appeal from the conviction of two defendants, Kerri Roberts and Terrie J. Rush. Roberts was arrested after attempting to purchase $1,000 worth of merchandise from a sporting goods store in New York City using an American Express credit card printed with the name “Craig E. Jonathan.” Roberts also presented a New Jersey driver’s license bearing the same name, but featuring a photograph of Roberts himself. An investigation revealed that the credit card number had been issued to a person living near Buffalo, who had not given Roberts permission to use her card, and that Craig E. Jonathan was an entirely fictitious person. Roberts was charged with one count of Identity Theft in the Second Degree and two counts of Criminal Possession of a Forged Instrument in the Second Degree.  Roberts moved to dismiss the identity theft count on the grounds that he was pretending to be Craig E. Jonathan, not the credit card account holder. The trial court rejected Roberts’ motion and he was convicted on all counts. Roberts appealed, and the Appellate Division, First Department vacated Roberts’ Identity Theft conviction and dismissed that count of the indictment, but otherwise affirmed. The First Department reasoned that mere use of personal identifying information, such as a credit card number, is insufficient in and of itself to establish the crime of identity theft. The Court held that the People must prove both that the defendant used personal identifying information and assumed the victim’s identity. Since Roberts assumed the identity of the fictitious Craig E. Jonathan, rather than the identity of the credit card account holder, that element of the crime of identity theft was not satisfied.

Likewise, Rush was convicted based on her involvement in a scheme in which she deposited stolen and forged checks in a bank account opened under the name of an uninvolved third-party, without that person’s knowledge or permission, from which the funds were later withdrawn. The victim’s signature was forged on the back of each check deposited into the account, and the deposit slips listed the victim’s name and the unauthorized bank account number. Rush was convicted of one count of Identity Theft in the Second Degree and one count of Criminal Possession of a Forged Instrument in the Second Degree. Rush appealed, and the Appellate Division, Fourth Department, unanimously affirmed Rush’s conviction, holding that Rush’s use of the victim’s name and bank account number established that she assumed his identity within the meaning of the statute. Contrary to the First Department, the Fourth Department held that assuming the identity of another person is not a separate and discrete element that must be proved.

The relevant statute states that a person is guilty of First- and Second-Degree Identity Theft “when [such person] knowingly and with intent to defraud assumes the identity of another person by presenting [himself or herself] as that other person, or by acting as that other person or by using personal identifying information of that other person, and thereby . . . commits or attempts to commit [a felony]” (Penal Law §§ 190.79 [3]; 190.80 [3]).

The Court of Appeals pointed out that the Penal Law broadly defines “personal identifying information” to include the type of data commonly used in transacting commercial matters such as a “person’s name; address; telephone number; social security number; checking, savings, debit card, or credit card account number or code; signature,” or “any other name, number, code or information that may be used alone or in conjunction with other such information to assume the identity of another person” (Penal Law § 190.77 [1]).

The Court of Appeals focused on the statutory text in reaching its conclusion that actually assuming the identity of another is not a separate element that must be proven to support a conviction for identity theft. The Court reasoned that, because the statute says a person must “assume the identity of another person by presenting [themselves] as that other person, or by acting as that other person or by using personal identifying information of that other person,” the statutory text expressly defines the types of conduct by which a person assumes the identity of another (emphasis added). Therefore, because any of the statutorily enumerated types of conduct are ways in which an identity can be assumed, assuming the identity of another is not a separate and distinct element of the crime. Essentially, the majority concluded that use of personal identifying information, without more, establishes that a defendant assumed another person’s identity, provided the requisite mens rea is present.

The Court also rejected the defendants’ argument that the rule of lenity should apply in this case. The Court found that the statute was clear and that the overall legislative scheme and supporting legislative history confirm the clarity of the statutory language. The Court also rejected the argument that a split between the First and Fourth Departments is indicative of inherent ambiguity in the statute.

Judge Wilson wrote a spirited, separate opinion, concurring in part and dissenting in part. Judge Wilson concurred in the Court’s affirmance of defendant Rush’s conviction, but dissented from the Court’s reversal reinstating defendant Roberts’. (BJD/LC)