Opinion
2012-10-16
Robert S. Dean, Center for Appellate Litigation, New York (Deborah Sohn of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Britta Gilmore of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Deborah Sohn of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Britta Gilmore of counsel), for respondent.
GONZALEZ, P.J., SWEENY, ACOSTA, RENWICK, MANZANET–DANIELS, JJ.
Judgment, Supreme Court, New York County (Lewis Bart Stone, J.), rendered October 14, 2010, convicting defendant, after a jury trial, of criminal possession of a forged instrument in the second degree and forgery in the second degree, and sentencing him, as a second felony offender, to concurrent terms of 3 to 6 years, unanimously affirmed.
The verdict was supported by legally sufficient evidence and was not against the weight of the evidence ( see People v. Danielson, 9 N.Y.3d 342, 348, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ). The chain of circumstances surrounding defendant's receipt of a fraudulent debit card from the codefendant, as observed by a police officer, and defendant's use of the card supported the inference that defendant knew it was forged ( see e.g. People v. Price, 16 A.D.3d 323, 792 N.Y.S.2d 68 [1st Dept. 2005],lv. denied5 N.Y.3d 767, 801 N.Y.S.2d 262, 834 N.E.2d 1272 [2005] ). Furthermore, defendant's trial testimony explaining his acquisition of the card was incredible, and this testimony contained material admissions that further supported the inference of knowledge. The element of fraudulent intent was established by defendant's use of the card, which had been altered so that a third party would be billed for the transaction, to make an expensive purchase.
Any error in instructing the jury on the presumption arising from possession of two or more forged cards (Penal Law § 170.27) was harmless. There is no reasonable possibility that the jury based its verdict on an improper theory ( see People v. Ray, 254 A.D.2d 189, 678 N.Y.S.2d 890 [1st Dept. 1998],lv. denied92 N.Y.2d 985, 683 N.Y.S.2d 766, 706 N.E.2d 754 [1998];compare People v. Martinez, 83 N.Y.2d 26, 33–34, 607 N.Y.S.2d 610, 628 N.E.2d 1320 [1993],cert. denied511 U.S. 1137, 114 S.Ct. 2153, 128 L.Ed.2d 880 [1994] ).