Com. v. Zaleski

• Decision Date: 22 October 1975
• Parties: COMMONWEALTH v. Joseph D. ZALESKI.
• Court: Appeals Court of Massachusetts

Page 877

336 N.E.2d 877

3 Mass.App.Ct. 538

COMMONWEALTH

v. Joseph D. ZALESKI.

Appeals Court of Massachusetts, Hampden.

Argued Sept. 8, 1975.

Decided Oct. 22, 1975.

William P. Homans, Jr., Boston, for defendant.

John T. McDonough, Springfield, for the Commonwealth.

Before HALE, C.J., and GRANT and ARMSTRONG, JJ.

HALE, Chief Justice.

The defendant appeals under G.L. c. 278, §§ 33A--33G, following his conviction by a Superior Court judge sitting without jury on four indictments charging the forgery of certain checks and four charging the uttering of those checks. We summarize the facts which could have been found by the judge from the conflicting testimony and from the exhibits, considering the evidence in the light most favorable to the Commonwealth. Commonwealth v. Burns, 362 Mass. 875, 289 N.E.2d 836 (1972).

The defendant is the president and treasurer of Eastern Renovating Corporation (Eastern), a Connecticut corporation engaged in the business of repairing and renovating buildings. The defendant had operated the business for about twenty-five years, first as a sole proprietor and later in its present corporate form.

In November of 1972 the defendant contacted Reverend Zator, pastor of St. Stanislaus Church in Chicopee, with respect to certain repairs to the church which the pastor had been contemplating. Eastern was engaged to make those repairs. On November 29, 1972, the defendant presented a document and a copy thereof to Reverend Zator, representing it to be a document required by 'the insurance company' giving the defendant's employees permission 'to go up to the steeple.' The defendant placed both copies on the desk in front of Reverend Zator, folded so that only the third page of each was showing, on which were printed seven clauses, one being entitled 'Insurance.' Reverend Zator signed both the document and copy 'St. Stanislaus Church by Reverend Fabian Zator' and affixed the date. He did not read the document and did not know what it contained. The signed and dated document introduced in evidence was a form of contract between Eastern and the church whereby Eastern undertook to perform certain described repairs for a total price of $50,700. A few days later another document and a copy thereof were presented to Reverend Zator who signed and dated both without reading either, having been given by the defendant to understand that the insurance company required the document for 'a different kind of insurance.' The signed and dated document was introduced in evidence and was in the form of an extra work order which included additional work on the rectory and on the church and called for a payment of $42,300 in addition to the original contract price. Eastern thereafter provided a substantial amount of labor and materials. The amount billed by Eastern for the completed work was $93,000.

On December 5, 1972, Reverend Zator paid Eastern $5,000 by delivering a check to the defendant, the check having been drawn on a Springfield bank on the account of the 'Roman Catholic Bishop of Springfield, a corporation sole, for St. Stanislaus B.M. Church.' The check was signed by Reverend Zator. On December 18, 1972, a check numbered 909 for $15,000, drawn on a Chicopee bank on the account of the 'Roman Catholic Bishop of Springfield, a corporation sole, for St. Stanislaus Cemetery' was delivered to the defendant. That check was for the payment due when one third of the work had been completed. That check was also payable to Eastern and signed by Reverend Zator. On December 26, 1972, a check numbered 911 for $15,000, payable to Eastern was executed in the same manner, drawn on the same account, and, delivered to Eastern. All three checks were on printed forms and were from the church's sequentially numbered supplies of checks. Each of the checks was immediately deposited to Eastern's account in a Connecticut bank.

On December 5, 1972, at the time Reverend Zator delivered the $5,000 check to the defendant, the latter said, 'Father, I'm new in this city here and I have to pay my men, my workers. They will not cash the check at the bank because they do not know me. Would you please sign a release authorizing me to cash this check?' The defendant then presented Reverend Zator with two forms which the latter signed. The words 'pay to the order of' appeared on the slips; Reverend Zator saw no other words on them. The next day the defendant told Reverend Zator that the 'permission slips' had fallen in some mud and been destroyed. He then requested that two replacements be signed. Upon being given the slips, Reverend Zator complied with the request.

Thereafter the defendant filled in the blank spaces on each of the four slips so that they appeared to be checks numbered, dated, and drawn to the order of Eastern as follows: (1) check no. 4480, dated January 8, 1973, drawn on the Springfield bank against the account of the Roman Catholic Bishop of Springfield, St. Stanislaus B.M. Church in the amount of $15,700; (2) check no. 4481, dated January 11, 1973, drawn on the Springfield bank against the account of the Roman Catholic Bishop of Springfield, St. Stanislaus B.M. Church in the amount of $8,300; (3) check no. 977, dated January 8, 1973, drawn on the Chicopee bank against the account of the Roman Catholic Bishop of Springfield St. Stanislaus Cemetery, in the amount of $20,000; and (4) check no. 978, dated January 11, 1973, drawn on the Chicopee bank against the account of the Roman Catholic Bishop of Springfield, St. Stanislaus Cemetery, in the amount of $14,000. Those checks, although bearing numbers which were within the sequences of those in the checkbooks held by Reverend Zator, were made up on blank forms such as are available from legal or office supply houses. The bank names, account numbers and transit numbers were copied by the defendant from the checks previously given to him by Reverend Zator. All four of those checks were deposited in a newly opened account in Eastern's name in the Springfield bank. The first of the four checks cleared. There were insufficient funds in the two checking accounts to satisfy the remaining three, and payment of them was stopped.

Such are the facts the judge could have found on the conflicting testimony. The factual questions raised by the defendant's denials of the various misrepresentations attributed to him were resolved against him at the trial; they are not open to reexamination in this court.

On January 13, 1973, Reverend Zator complained to the chief of the Chicopee police department about those four checks and set in motion the complaint process which eventually resulted in the indictments upon which the defendant was convicted.

1. The defendant assigns as error the denial of his request for rulings of law that the evidence was insufficient to warrant findings of guilt. We consider Commonwealth v. Foster, 114 Mass. 311 (1873), to be controlling on that point. There the defendant was found guilty of uttering a forged instrument. The defendant had induced one George Little to sign a note 'Little & Co.,' intending to represent the note as having been executed by a similarly named firm, James L. Little & Co. He then sold the note with taht representation. In its holding the court stated that: '(i)f . . ....