Opinion
March 1, 1999
Appeal from the County Court, Rockland County (Kelly, J.).
Ordered that the judgment is modified, on the law, by reversing the conviction of the two counts of criminal possession of a forged instrument in the second degree; vacating the sentences imposed thereon, and dismissing those counts; as so modified, the judgment is affirmed.
The conviction of criminal possession of a forged instrument in the second degree based on possession of a credit card receipt which was forged to purchase clothing cannot be sustained. Although an individual may be charged with both forgery and criminal possession of a forged instrument, he cannot be convicted of both crimes with respect to the same forged instrument ( see, Penal Law § 170.35). The defendant's conviction of criminal possession of a forged instrument based on the actual credit card used in the transaction also cannot be sustained, as there was no evidence that the defendant knew that the credit card itself was forged ( see, Penal Law § 170.25).
Upon viewing the evidence in the light most favorable to the prosecution ( see, People v. Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt of the remaining counts of the indictment. Moreover, upon the exercise of our factual, review power, we are satisfied that the verdict of guilt with respect to the remaining counts was not against the weight of the evidence ( see, CPL 470.15),
The defendant's remaining contentions are without merit.
O'Brien, J. P., Sullivan, Joy and Krausman, JJ., concur.