People v. Hughes

• Decision Date: 27 November 2013
• Citation: 975 N.Y.S.2d 507,111 A.D.3d 1170,2013 N.Y. Slip Op. 07886
• Parties: The PEOPLE of the State of New York, Respondent, v. Christopher HUGHES, Appellant.
• Court: New York Supreme Court — Appellate Division

111 A.D.3d 1170
975 N.Y.S.2d 507
2013 N.Y. Slip Op. 07886

The PEOPLE of the State of New York, Respondent,
v.
Christopher HUGHES, Appellant.

Supreme Court, Appellate Division, Third Department, New York.

Nov. 27, 2013.

[975 N.Y.S.2d 508]

Kindlon Shanks & Associates, Albany (Terence L. Kindlon of counsel), for appellant.

P. David Soares, District Attorney, Albany (Vincent Stark of counsel), for respondent.

Before: LAHTINEN, J.P., STEIN, SPAIN and EGAN JR., JJ.

SPAIN, J.

Appeal from a judgment of the County Court of Albany County (Herrick, J.), rendered August 22, 2012, upon a verdict convicting defendant of the crime of criminal possession of a forged instrument in the second degree.

[975 N.Y.S.2d 509]

Defendant, a police officer with the Town of Bethlehem Police Department (hereinafter BPD), was placed on disability leave in 2009. As a result, he turned in—as required—his police identification card, police badge and firearm. In September 2010, defendant contacted Galls, LLC, the company that produces badges for BPD, and submitted an online order for a BPD badge indicating his status as a retired patrol officer. A Galls representative contacted defendant, obtained payment information and advised him that a police identification card was required to process his badge order. Thereafter, on October 7, 2010, defendant took a CD containing an image of a police photo identification card (hereinafter the police ID card) to a Staples store and asked a clerk to send an email to Galls on his behalf containing the image of the police ID card; the image sent to Galls consisted of a BPD police ID card in defendant's name containing his picture, on what appears to be official BPD letterhead. A Galls representative contacted BPD Deputy Chief Timothy Beebe, who is responsible for the issuance of BPD police ID cards, and Beebe refused to authorize a retirement badge for defendant because he was not retired but, rather, still employed while on disability leave. Following an investigation by the State Police, it was determined that the police ID card that defendant sent to Galls was fraudulent as it had not been created by Linstar, the vendor that exclusively produces BPD police ID cards, nor had it been authorized by BPD and it did not contain the official authorized signature of the Chief of Police, Louis Corsi, that was on file with Linstar. Defendant was charged with—and convicted after a jury trial of—criminal possession of a forged instrument in the second degree. Sentenced to five years of probation, defendant appeals.

Initially, having made only a general motion for dismissal at trial, defendant failed to preserve the legal sufficiency challenge he now raises on appeal ( see People v. Alnutt, 107 A.D.3d 1139, 1142, 968 N.Y.S.2d 634 [2013]; People v. Morrison, 71 A.D.3d 1228, 1229, 896 N.Y.S.2d 253 [2010], lvs. denied 15 N.Y.3d 747, 906 N.Y.S.2d 820, 933 N.E.2d 219 [2010], 15 N.Y.3d 754, 906 N.Y.S.2d 827, 933 N.E.2d 226 [2010] ). However, defendant argues that the verdict is against the weight of the evidence and “our weight of the evidence review necessarily involves an evaluation of whether all elements of the charged crime were proven beyond a reasonable doubt at trial” (People v. Thompson, 92 A.D.3d 1139, 1140 n. 2, 939 N.Y.S.2d 162 [2012] [internal quotation marks and citation omitted], lv. denied21 N.Y.3d 555, 975 N.Y.S.2d 380, 997 N.E.2d 1232 [2013]; see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ).

Indeed, the verdict was not against the weight of the credible evidence. To sustain the charge, the People were required to prove that defendant knowingly possessed a forged instrument “with intent to defraud, deceive or injure another” (Penal Law § 170.25). The testimony of the Staples clerk established that defendant possessed the CD that contained the image of the fraudulent police ID card. Defendant's knowledge that it was forged was demonstrated by proof that he had previously possessed and turned in his official police ID card the prior year, and that BPD had not authorized the police ID card contained on the CD; further, the police ID card did not contain the official signature of the Chief of Police used for police ID cards, and the exclusive vendor who made BPD police ID cards (Linstar) did not create the card pictured on the CD. Linstar's representative pointed out numerous

[975 N.Y.S.2d 510]

attributes that were noticeably different between defendant's official police ID card (which defendant had turned into BPD) and the copy of the forged card he had emailed to Galls. Given that “[g]uilty knowledge of forgery may be shown circumstantially,” we find the evidence adduced at trial to be highly persuasive that defendant knew the police ID card he submitted to Galls was forged (People v. Rebollo, 107 A.D.3d 1059, 1060, 966 N.Y.S.2d 602 [2013]; see People v. Silberzweig, 58 A.D.3d 762, 762–763, 871 N.Y.S.2d 690 [2009], lv. denied12 N.Y.3d 920, 884 N.Y.S.2d 701, 912 N.E.2d 1082 [2009] ).

The fact that the forged police ID card bore a close resemblance to an authentic one did not, on these facts, undermine the conclusion that defendant was aware it was a forgery. Moreover, the People were not required to prove where the police ID card came from or who created it, which are not elements of this crime ( seePenal Law § 170.25). Likewise, “evidence of an intent to defraud or deceive may be inferred from a defendant's actions and surrounding circumstances” (People v. Rebollo, 107 A.D.3d at 1061, 966 N.Y.S.2d 602). Here, the jury rationally concluded that defendant submitted the forged police ID card to Galls,...