People v. Frumerin

• Decision Date: 30 June 1986
• Citation: 121 A.D.2d 736,504 N.Y.S.2d 156
• Parties: The PEOPLE, etc., Respondent, v. Mark FRUMERIN, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 156

504 N.Y.S.2d 156

121 A.D.2d 736

The PEOPLE, etc., Respondent, v. Mark FRUMERIN, Appellant.

Supreme Court, Appellate Division Second Department.

June 30, 1986.

McKenna & Schneier, Valley Stream (Alan Schneier, of counsel), pro se.

Mark Frumerin, pro se.

Patrick Henry, Dist. Atty. (Steven A. Hovani, Riverhead and Lee Greenstein, on brief), for respondent.

Before WEINSTEIN, J.P., and NIEHOFF, KUNZEMAN and SPATT, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Suffolk County (D'Amaro, J.), rendered August 2, 1984, convicting him of three counts of criminal possession of a forged instrument in the second degree, upon a jury verdict, and imposing sentence.

Judgment affirmed.

As a result of a pretrial Sandoval hearing (People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849, 314 N.E.2d 413), the prosecutor was permitted to cross-examine the defendant with respect to two of his prior convictions, including a very limited inquiry into the underlying facts thereof. The defendant failed to take the stand, alleging that the jurors would most likely infer from his previous convictions a propensity on his part to commit crimes. Where, as here, the crime charged and the prior convictions are sufficiently dissimilar, the risk that the jury will draw from the evidence of prior convictions an inference of continued criminal propensity is remote (People v. Cuesta, App.Div., 500 N.Y.S.2d 811). Even the fact that a prior offense is similar in nature to that for which a defendant is currently on trial does not mandate preclusion (see, People v. Gonzalez, 111 A.D.2d 870, 871, 490 N.Y.S.2d 788). Rather, the extent to which the prosecutor should be permitted to make use of prior convictions to impeach the credibility of a defendant is a matter generally left to the discretion of the trial court (see, People v. Bennette, 56 N.Y.2d 142, 451 N.Y.S.2d 647, 436 N.E.2d 1249; People v. Duffy, 36 N.Y.2d 258, 262, 367 N.Y.S.2d 236, 326 N.E.2d 804, cert. denied 423 U.S. 861, 96 S.Ct. 116, 46 L.Ed.2d 88; People v. Scott, App.Div., 500 N.Y.S.2d 708).

In the instant case, the trial court's ruling was not an abuse of discretion. At the outset of proceedings, defense counsel indicated that the defense proffered would be consent on the part of the complaining witness to the defendant's possession of the subject instruments. Inasmuch as said defense would be predicated upon the defendant's own testimony, credibility was made a focal issue. The defendant's prior convictions involving larceny and burglary were clearly probative on the issue of his credibility. By limiting the number of convictions which could be used for impeachment purposes, the trial court minimized the potential prejudice to the defendant. On these facts, the defendant failed to sustain his burden of demonstrating that the prejudicial impact of admitting certain of his prior convictions outweighed the probative value thereof as to warrant their exclusion (see, People v. Mackey, 49 N.Y.2d 274, 425 N.Y.S.2d 288, 401 N.E.2d 398; People v. Sandoval, supra).

Notwithstanding the defendant's contention that there was insufficient proof that he had knowledge that the subject checks were forged, we find the evidence to have been sufficient in quantity and quality to support the jury's verdict (see, People v. Malizia, 62 N.Y.2d 755, 757, 476 N.Y.S.2d 825, 465 N.E.2d 364; cert. denied 469 U.S. 932, 105 S.Ct. 327, 83 L.Ed.2d 264). While knowledge of forgery is not established by the mere possession of a forged instrument, guilty knowledge can be shown circumstantially by conduct and events (People v. Johnson, 65 N.Y.2d 556, 561, 493 N.Y.S.2d 445, 483 N.E.2d 120).

A companion of the defendant testified that she had been with the defendant when he took a box of checks from the...