Opinion
November 10, 1986
Appeal from the Monroe County Court, Cornelius, J.
Present — Dillon, P.J., Denman, Green, Pine and Balio, JJ.
Judgment unanimously modified on the law and as modified affirmed, in accordance with the following memorandum: There was insufficient evidence to show that defendant knew that the instrument he possessed was forged ( see, Penal Law § 170.25; People v Green, 53 N.Y.2d 651).
Although such knowledge may be shown circumstantially by conduct and events (People v Johnson, 65 N.Y.2d 556, 561), it may not be imputed solely from possession or presentation of the instrument (People v Green, supra). In this case, defendant stated that he knew there was "something wrong" with the check given to him by his friend. However, when he first gained possession, the check had been indorsed in blank, defendant did not know the payee or her signature or how his friend acquired the check and when he presented the check at the bank where he had an account and placed his own indorsement thereon, he made no representation regarding any prior indorsement. While the jury could infer that the check was stolen, any finding that defendant knew it was forged was premised on no more than speculation (People v Green, 53 N.Y.2d 651, 652, supra). The judgment must be modified to vacate that conviction and the sentence imposed thereon.
Although the court failed to provide the jury with specific instructions pertaining to a common scheme to defraud, no request or exception was made by defendant and this issue was not preserved for our review (CPL 470.05). We decline to exercise our discretion in the interests of justice (CPL 470.15 [a]). We find defendant's remaining contention lacks merit.