Opinion
No. 570245/18
09-30-2022
People of the State of New York, Respondent, v. Charles Cherry, Defendant-Appellant.
Unpublished Opinion
MOTION DECISION
PRESENT: Brigantti, J.P., Tisch, Michael, JJ.
PER CURIAM.
Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (Judy H. Kim, J.), rendered March 12, 2018, after a nonjury trial, convicting him of attempted criminal possession of a forged instrument in the third degree, unlawful sale or reproduction of a Metrocard, unlawful solicitation in the subway, and loitering, and imposing sentence.
Judgment of conviction (Judy H. Kim, J.), rendered March 12, 2018, affirmed.
Defendant's challenge to the legal sufficiency of the evidence with respect to the charge of unauthorized sale or reproduction of a MetroCard, is unpreserved for appellate review (see People v Hawkins, 11 N.Y.3d 484, 492 [2008]), and we decline to review it in the interest of justice. As an alternative holding, we find, upon viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 N.Y.2d 620 [1983]), that it was legally sufficient to establish defendant's guilt of attempted criminal possession of a forged instrument in the third degree (see Penal Law §§ 110.00, 170.20) and unauthorized sale or reproduction of a MetroCard (see 21 NYCRR 1050.4[c]). Nor was the verdict against the weight of the evidence. There is no basis for disturbing the court's determinations concerning credibility.
Nine (of the 29) MetroCards that defendant possessed were bent in the same location on their magnetic strips in a manner that the arresting officer knew, based on his training and experience, can obliterate the encoded data of the value remaining on the card and provide free access to the subway system. Thus, the MetroCards defendant possessed were forged instruments (see People v Mattocks, 12 N.Y.3d 326, 330-331 [2009]; People v McFarlane, 63 A.D.3d 634, 635 [2009], lv denied 13 N.Y.3d 837 [2009]; People v Taylor, 50 A.D.3d 358 [2008], lv denied 11 N.Y.3d 795 [2008]). The circumstances of defendant's possession of multiple forged MetroCards, his use of one of them to swipe the (plainclothes) officer through the turnstile in exchange for $2.00, and his attempt to flee when the officer identified himself, supported the inference that defendant knowingly possessed the altered cards with the intent to defraud (see People v James, 101 A.D.3d 447 [2012], lv denied 20 N.Y.3d 1062 [2013]), and further supported his guilt under 21 NYCRR 1050.4[c]. One who swipes another person into the subway system for money but does not enter himself, clearly violates the purpose and plain language of 21 NYCRR 1050.4[c] (see People v Smith, 100 N.Y.2d 571, 573 [2003]; People v Jones, 56 Misc.3d 128 [A], 2017 NY Slip Op 50826[U][App Term, 1st Dept 2017]; William C. Donnino, Practice Commentaries, McKinney's Cons Laws of NY, Penal Law § 165.16 [certain "schemes" are employed "to profit personally from the misuse of farecards," including "selling 'swipes'"]).
Nor was the accusatory instrument jurisdictionally defective. The instrument sufficiently alleged defendant's possession of a forged instrument, consisting of the bent MetroCards, as well as information from which his knowledge and intent could be inferred (see People v Mattocks, 12 N.Y.3d at 330).
All concur