SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

979 

KA 11-00060 

PRESENT: FAHEY, J.P., PERADOTTO, CARNI, AND SCONIERS, JJ.

 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

MARIA F. RAMIREZ, DEFENDANT-APPELLANT.

 

LEANNE LAPP, PUBLIC DEFENDER, CANANDAIGUA (ERIC M. DOLAN OF COUNSEL),

FOR DEFENDANT-APPELLANT.

R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA, FOR RESPONDENT. 

 

Appeal from a judgment of the Ontario County Court (Craig J.

Doran, J.), rendered August 3, 2010. The judgment convicted

defendant, upon a jury verdict, of falsifying business records in the

first degree, criminal mischief in the fourth degree and petit

larceny. 

It is hereby ORDERED that the judgment so appealed from is

unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting her

upon a jury verdict of falsifying business records in the first degree

(Penal Law § 175.10), criminal mischief in the fourth degree (§

145.00), and petit larceny (§ 155.25). We reject defendant’s

contention that the evidence adduced at trial is legally insufficient

to support the conviction of falsifying business records (see

generally People v Bleakley, 69 NY2d 490, 495). Viewed in the light

most favorable to the prosecution (see People v Contes, 60 NY2d 620,

621), the evidence established that defendant knowingly returned

unpurchased merchandise at a Lord & Taylor store in exchange for store

credit. Defendant then used the fraudulently obtained store credit to

purchase several other items of merchandise before she left the store. 

Thus, the People established that defendant “cause[d] a false entry in

the business records of an enterprise” (§ 175.05 [1]), i.e., that she

returned merchandise that she had not in fact purchased, and that she

thereby “inten[ded] . . . to aid or conceal [her] commission” of the

crime of petit larceny (§ 175.10; see People v Weaver, 89 AD3d 1477,

1478; People v Hopkins, 28 AD3d 1244, 1244, lv denied 7 NY3d 790).

We reject defendant’s further contention that the first count of

the indictment, charging her with falsifying business records in the

first degree, was rendered duplicitous by the evidence at trial and

that it is unclear whether the jury reached a unanimous verdict

concerning that count. The summations of the prosecutor and defense
-2- 979 

KA 11-00060 

counsel made it clear that defendant’s return of merchandise she had

not purchased, i.e., the “no receipt” transaction, was the sole cash

register transaction that related to the count charging her with

falsifying business records. Thus, there is an adequate basis in the

record to connect that count of the indictment to a particular cash

register transaction, and there is no danger that different jurors

convicted defendant based on different cash register transactions

involving defendant on the day in question (see People v Mathis, 8

AD3d 966, 967-968, lv denied 3 NY3d 709; People v Drayton, 198 AD2d

770, 770). Finally, defendant contends that prosecutorial misconduct

on summation requires reversal. We reject that contention. “[A]ny

improprieties [in the prosecutor’s summation] were not so pervasive or

egregious as to deprive defendant of a fair trial” (People v Cox, 21

AD3d 1361, 1364, lv denied 6 NY3d 753 [internal quotation marks

omitted]).

Entered: October 5, 2012 Frances E. Cafarell

Clerk of the Court