People v. Chamberlain

• Decision Date: 25 February 1972
• Citation: 38 A.D.2d 306,329 N.Y.S.2d 61
• Parties: PEOPLE of the State of New York, Respondent, Respondent, v. George CHAMBERLAIN, Appellant. PEOPLE of the State of New York, Respondent, v. Anthony CERRA, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 61

329 N.Y.S.2d 61

38 A.D.2d 306

PEOPLE of the State of New York, Respondent, Respondent, v. George CHAMBERLAIN, Appellant.

PEOPLE of the State of New York, Respondent, v. Anthony CERRA, Appellant.

Supreme Court, Appellate Division, Fourth Department.

Feb. 25, 1972.

[38 A.D.2d 307] Bernard D. Levine, Rochester, for appellant George Chamberlain.

Nicholas P. Varlan, Rochester, for appellant Anthony Cerra (James J. Sullivan, Rochester, of counsel).

Jack B. Lazarus, Rochester, District Attorney, for respondent (Edward J. Spires and Melvin Bressler, Rochester, of counsel).

Before MARSH, J.P., and GABRIELLI, MOULE, CARDAMONE and HENRY, JJ.

OPINION

CARDAMONE, Justice.

Appellants, Chamberlain and Cerra, appeal from a judgment of conviction after a jury trial in which they were found guilty of all 13 counts of an indictment charging them with two counts of criminal possession of a forged instrument, two counts of petit larceny, and one count of conspiracy committed on March 17, 1970, and six counts of criminal possession of a forged instrument, one count of petit larceny, and one count of conspiracy committed on April 20, 1970.

Kathleen Parmele testified that on March 17, 1970 she went to the Star Market Store #22 in Rochester where, after identifying herself as the payee, she presented a check to be cashed, drawn on the account of Partition Systems Company and payable to 'Mary Marcone' in the amount of $133.63. She purchased a small amount of groceries, taking the balance of the proceeds in cash. She repeated the procedure at Star Market Store #8 with another check on the same account in the same amount also made payable to 'Mary Marcone'. As a witness for the People she further testified that she had been pressured into taking part in these forgeries by the appellants, who threatened to create difficulties for her with her probation officer if she failed to cooperate. It was they, she testified, who approached her, supplied the checks, the typewriter and check imprinter and instructions on how to complete the checks, provided phony identification, instructions on cashing the checks, transportation to and from the stores and agreed to and did share with her in the proceeds. Parmele was granted immunity for her part in the crimes committed on March 17, 1970.

Raymond Steed was the principal prosecution witness regarding those counts charging these defendants with the crimes committed on April 20, 1970. Steed testified that prior to April 20 he had agreed with appellants to cash some payroll checks and split the proceeds with them. On April 20, appellants provided Steed with a driver's license issued to 'William Foley' and directed him to open a Security Trust Bank savings account and acquire a passbook in that name. After he did this, Steed returned to Chamberlain's house and was directed to go to several Security Trust Bank branches and cash a number of checks on the account of Partition Systems Company and made payable to 'William Foley' in varying amounts of about $240. Steed was instructed on how to proceed and who to see at each bank. He was provided transportation and was directed to sign the maker's signature while riding to the banks and to endorse the payee's name after entering each bank. Steed testified that in exchange for his cooperation he was permitted to plead to a misdemeanor for his part in these crimes.

The remainder of the testimony included evidence of prior similar but uncharged crimes allegedly committed by these appellants as well as evidence directed toward corroboration of the testimony of the accomplices Parmele and Steed. Appellants have questioned the propriety of the former and the adequacy of the latter.

The court permitted Parmele and Steed to testify that they each had been involved with appellants in a similar check cashing arrangement on occasions other than those for which the defendants were indicted. In addition, another prosecution witness, William DeRose, testified to his involvement with the appellants in the commission of several other similar crimes for which the defendants were not on trial. DeRose told of a similar pattern to that related by Steed and Parmele. Appellants provided DeRose with phony identification, directed him to sign as maker, endorse the checks as payee and pass them one at a time at various Midland Branch Banks and drove him to the branches. DeRose identified seven checks which he had cashed pursuant to their plan. Defense counsel objected continually to the testimony of DeRose and also that of Steed and Parmele insofar as it related to other uncharged crimes. The Trial Court received this testimony on the theory that since this was a forgery case, evidence of uncharged crimes was admissible on the issue of intent to defraud.

The Court of Appeals had occasion recently to speak on the use of evidence of uncharged crimes to prove the defendant's intent. In People v. McKinney, 24 N.Y.2d 180, 184--185, 299 N.Y.S.2d 401, 404, 405, 247 N.E.2d 244, 246, 247, the court stated that:

'The basic rule concerning use of evidence of uncharged crimes and offenses is that such evidence is inadmissible if offered for no purpose other than to raise an inference that a defendant is of a criminal disposition and, therefore, likely to have committed the crime charged (People v. Goldstein, 295 N.Y. 61, 65 N.E.2d 169.) The rules governing the admissibility of uncharged crimes represent a 'balance between the probative value of such proof and the danger of prejudice which it represents to an accused.' (People v. Schwartzman, 24 N.Y.2d 241, 299 N.Y.S.2d 817, 247 N.E.2d 642; People v. Dales, 309 N.Y. 97, 127 N.E.2d 829; see, also, People v. Molineux, 168 N.Y. 264, 291--294, 61 N.E. 286, 293--295; McCormick, Evidence (1954), § 157; Fisch, New York Evidence (1959), § 209.) Thus, evidence of other crimes is admissible if directly probative of the crime charged for in that event the evidence is relevant for a purpose other than to show a criminal disposition and its probative value is deemed to outweigh the danger of prejudice. (People v. Schwartzman, Supra.) As these principles have been applied in our decision to evidence sought to be introduced to prove a defendant's intention in the crime charged, the probative 'balance' has generally warranted admission of this evidence only where the acts involved in the crimes charged are equivocal so that intention is not easily inferred from the acts alone. (People v. Schwartzman, Supra, 24 N.Y.2d pp. 247--248, 299 N.Y.S.2d pp. 822--824, 247 N.E.2d pp. 645--647; cf. People v. Molineux, Supra, 168 N.Y. pp. 297--299, 61 N.E. 286; cf. People v. Peckens, 153 N.Y. 576, 47 N.E. 883; cf. Mayer v. People, 80 N.Y. 364; cf. Richardson, Evidence (9th ed., (1964), § 177.) 'In such cases it is recognized that 'proof of intent is often unobtainable except by evidence of successive repetitions of the act. " (People v. Schwartzman, supra, 24 N.Y.2d p. 248, 299 N.Y.S.2d 817, 247 N.E.2d 642; People v. Molineux, supra, 168 N.Y. p. 298, 61 N.E. 286).' (Emphasis added)

Appellants argue that there was not, in this case, any question of intent. The acts attributed to the appellants were not in any way equivocal and the necessary intent to defraud could easily be inferred from the acts themselves. Accordingly, they argue that there is no basis for admitting evidence of other crimes. The People's position implies in effect that in all check forgery cases evidence of other similar crimes is Per se admissible to show intent.

We find no authority for the proposition that All forgery cases involve equivocal acts and thus always allow for evidence of other similar acts. We do not read People v. Molineux, 168 N.Y. 264, 61 N.E. 286 nor the more recent case of People v. Dales, 309 N.Y. 97, 127 N.E.2d 829, relied upon so heavily by the prosecution, as so holding.

The test in a given case is whether the acts are such as to allow the intent to be easily inferred from them. (People v. Schwartzman, 24 N.Y.2d 241, 299 N.Y.S.2d 817, 247 N.E.2d 642, supra; People v. McKinney, 24 N.Y.2d 180, 299 N.Y.S.2d 401, 247 N.E.2d 244, supra.) As to the crimes committed on March 17 and April 20, each accomplice testified to a system by which defendants would provide the accomplice with false identification, checks on a defunct account, detailed instructions on forging the signature of both the maker and the payee, directions for cashing the checks at a series of stores or banks, transportation to the cashing places, and a portion of the proceeds. If this testimony was believed, then the intent to defraud on the part of the defendants could easily be inferred, since the acts testified to were unequivocal. There is no conceivable position that could be taken by the defendant which would make their actions equivocal (cf. People v. Marrin, 205 N.Y. 275, 280, 98 N.E. 474, 475). Nor did the defendants advance any such position (cf. People v. Dales, supra, with People v. Boose, 25 A.D.2d 606, 267 N.Y.S.2d 427). In view of the quantity of that evidence its admission was prejudicial to the appellants. Accordingly, the judgment should be reversed and a new trial had on all counts.

Appellants also raise issues relating to the sufficiency of the corroboration of the testimony of accomplices Steed and Parmele, as required by section 399 of...