People v. Johnson

Decision Date09 July 1985
Citation493 N.Y.S.2d 445,65 N.Y.2d 556
Parties, 483 N.E.2d 120 The PEOPLE of the State of New York, Appellant, v. Willie James JOHNSON, Respondent. The PEOPLE of the State of New York, Appellant, v. Lillian M. TYLER, Respondent.
CourtNew York Court of Appeals Court of Appeals
OPINION OF THE COURT

JASEN, Judge.

The common issue presented on these appeals is whether the jury in each case had a sufficient evidentiary basis upon which to find, beyond a reasonable doubt, that defendant knowingly possessed a forged instrument.

On July 2, 1982, defendant, Willie James Johnson, presented a check in the amount of $254.78 to a cashier employed by Star Market to pay for a $30.06 bill for groceries. The check was made payable to one Ronald Doty, and drawn against an account maintained by Flower City Building Services, Inc. The check was presented with a Star Market customer check cashing card which had been issued to Ronald Doty. At the time the check was presented to the cashier, it bore the signature of "Raymond F. Levitt", as maker on behalf of Flower City Building Services, Inc., and was indorsed on the reverse side of the check in the name of "Ronald Doty". In order to receive cash to return to Johnson, the cashier went to the service counter where she handed the check and the check cashing card to the head cashier. The head cashier recognized the check as one for which an "alert" had been received by the store a few days earlier, instructed the cashier to detain defendant, and called the police and the assistant store manager. Defendant indicated to the assistant store manager that the check was his. Defendant repeatedly denied that this conversation with the assistant store manager ever occurred. While the assistant store manager attempted to detain defendant, defendant left the store. The assistant store manager followed defendant out of the store and identified him to the police.

At trial, it was established that the instrument in question was one of a number of blank checks which had been taken from the Flower City corporation during a burglary several years prior to 1982. No person named Raymond F. Levitt had ever worked for the Flower City corporation. Ronald Doty testified that he had not worked at the Flower City corporation, and had no knowledge regarding the check which was made payable to his order. Doty had reported his Star Market customer check cashing card missing prior to defendant's attempt to pass the check in question. Although Johnson had been positively identified by the cashier and assistant store manager as the individual who attempted to pass the instrument in question, defendant, testifying on his own behalf, advanced a theory of mistaken identity.

The facts in People v. Tyler are not in dispute. Defendant, Lillian M. Tyler, was employed by Abraham Enterprises, Inc., from June 1981 to October 8, 1981. During this period of employment, Tyler knew and worked with Cecelia A. Martella at Abraham Enterprises. On September 23, 1981, Martella became seriously ill. She entered the hospital on September 28, 1981 and was released on October 4, 1981. Martella never returned to work at Abraham Enterprises after September 23, 1981. On September 24, 1981, Abraham Enterprises issued a payroll check to the order of Cecelia A. Martella in the amount of $163.77. The payroll check was placed in the company safe in accordance with general practice. Tyler had access to this safe, which remained unlocked during working hours. Martella never received the payroll check dated September 24, 1981, although another check from the safe was delivered to Martella by the company through Martella's daughter.

On October 3, 1981, Tyler entered the Quality Liquor Store in Rochester. Tyler approached the service counter and refused the assistance offered by store clerk Dina Balzani, preferring to await the assistance of Frances Leva who was unavailable at that time. Balzani testified that she knew Tyler, as Tyler had previously passed checks with insufficient funds. Tyler cashed the payroll check made payable to Martella by handing the check to Frances Leva. The check, when presented to Leva, had already been signed in the name of "Cecelia A. Martella" and bore the handwritten telephone number of Abraham Enterprises. A pint bottle of vodka was purchased with the check and defendant received the change. Defendant did not testify at trial.

Lillian Tyler was convicted, in Monroe County Court, of criminal possession of a forged instrument in the second degree. (Penal Law § 170.25.) * The Appellate Division, Fourth Department, 105 A.D.2d 1161, 482 N.Y.S.2d 715, relying solely upon People v. Green, 53 N.Y.2d 651, 438 N.Y.S.2d 992, 421 N.E.2d 112, reversed the judgment of Monroe County Court, and dismissed the indictment. Willie James Johnson was convicted in Monroe County Court of criminal possession of a forged instrument in the second degree (Penal Law § 170.25), as well as attempted grand larceny, criminal possession of stolen property and criminal impersonation. The Appellate Division, Fourth Department, 101 A.D.2d 695, 475 N.Y.S.2d 941, also in sole reliance upon People v. Green (supra), reversed the judgment of Monroe County Court insofar as it convicted defendant of criminal possession of a forged instrument in the second degree, dismissed that count of the indictment, and otherwise affirmed the judgment. Leave to appeal in each case was granted by a judge of this court. For the reasons that follow, we now reverse in each case.

An essential element of the offense of criminal possession of a forged instrument is knowledge by the defendant that the instrument is forged. (Penal Law § 170.25; People v. Everhardt, 104 N.Y. 591, 595, 11 N.E. 62 [Earl, J.]; People v. Colmey, 116 App.Div. 516, 517, 101 N.Y.S. 1016; People v. Ghiggeri, 138 App.Div. 807, 123 N.Y.S. 489; United States v. Carll, 105 U.S. 611, 613, 26 L.Ed. 1135.) Some courts, presuming a rational relationship between the fact proved--possession--and the fact presumed--knowledge of forgery--hold that the mere unexplained possession or negotiation of a forged instrument is itself a circumstance from which knowledge of its falsity may be presumed. (See, Hagar v. State, 71 Ga. 164; White v. Territory, 1 Wash. 279, 24 P. 447; McGhee v. State, 183 Tenn. 20, 189 S.W.2d 826; Tarwater v. State, 209 Ark. 687, 192 S.W.2d 133; Hatton v. Commonwealth, 294 Ky. 740, 172 S.W.2d 564; State v. Maxwell, 151 Kan. 951, 102 P.2d 109; State v. Phillips, 127 Mont. 381, 264 P.2d 1009; see, Bailey & Rothblatt, Defending Business and White Collar Crimes § 29.26 [2d ed].) This court, following legislative intent (Penal Law §§ 15.15, 170.25), has implicitly rejected the rebuttable presumption approach toward establishing defendant's knowledge of forgery. (People v. Green, 53 N.Y.2d 651, 438 N.Y.S.2d 992, 421 N.E.2d 112, supra; but see, People v. Rathbun, 21 Wend 509, 518.) The mere negotiation or utterance of a forged instrument cannot, of itself, establish a presumption that defendant had knowledge of the forged nature of the instrument. (See, State v. Waterbury, 133 Iowa 135, 110 N.W. 328; State v. Runnion, 122 W.Va. 134, 7 S.E.2d 648.) Had the Legislature intended to presume knowledge of forgery upon a showing of mere possession of a forged instrument under Penal Law § 170.25, it would have so provided. (See, e.g., Penal Law §§ 170.71, 165.55[2].)

Our decision in People v. Green, 53 N.Y.2d 651, 438 N.Y.S.2d 992, 421 N.E.2d 112, supra underscores the legislative determination that knowledge of the forged nature of the instrument will not be imputed to a person solely by reason of possession or presentation of said instrument. In Green, we held that there was insufficient proof, as a matter of law, to sustain the conviction of defendant for criminal possession of a forged instrument. This determination reflects the view that where there is absolutely no evidentiary showing of how or where the instrument came into defendant's possession, and there exists a stipulation that the indorsement was not in defendant's handwriting, any finding that defendant knew that the instrument was forged could have been premised on no more than speculation. (People v. Green, supra, at p. 652, 438 N.Y.S.2d 992, 421 N.E.2d 112.) Green is not dispositive of the cases on appeal, but merely presents one set of circumstances which will not, as a matter of law, permit a finding that defendant had guilty knowledge of forgery.

Guilty knowledge of forgery may be shown circumstantially by conduct and events. (People v. Von Werne, 41 N.Y.2d 584, 590, 394 N.Y.S.2d 183, 362 N.E.2d 982.) The "moral certainty test", utilized where proof of the entire case depends upon circumstantial evidence (see, People v. Benzinger, 36 N.Y.2d 29, 32, 364 N.Y.S.2d 855, 324 N.E.2d 334), has no application where the circumstantial evidence relates to only one element of the offense (People v. Von Werne, supra, citing People v. Sabella, 35 N.Y.2d 158, 168, 359 N.Y.S.2d 100, 316 N.E.2d 569; People v. Bonifacio, 190 N.Y. 150, 82 N.E. 1098; see also, People v. Barnes, 50 N.Y.2d 375, 380, 429 N.Y.S.2d 178, 406 N.E.2d 1071). The only question now before this court is whether defendant in each case had...

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