People v. Joseph

• Citation: 66 N.Y.S.3d 777,58 Misc.3d 61
• Parties: The PEOPLE of the State of New York, Respondent, v. Deborah JOSEPH, Appellant.
• Decision Date: 30 November 2017
• Court: New York Supreme Court — Appellate Term

58 Misc.3d 61

66 N.Y.S.3d 777

The PEOPLE of the State of New York, Respondent,

v.Deborah JOSEPH, Appellant.

Supreme Court, Appellate Term, Second Dept., 9 and 10 Judicial Dist.

Nov. 30, 2017.

Andrew E. MacAskill, Esq., for appellant.

Nassau County District Attorney (Daniel Bresnahan, W. Thomas Hughes of counsel), for respondent.

PRESENT: ANTHONY MARANO, P.J., BRUCE E. TOLBERT, JERRY GARGUILO, JJ.

Appeal from a judgment of the District Court of Nassau County, First District (Joseph B. Girardi, J.), rendered May 8, 2015. The judgment convicted defendant, upon a jury verdict, of criminal possession of a forged instrument in the third degree and attempted petit larceny.

ORDERED that the judgment of conviction is modified, on the law, by vacating the conviction of criminal possession of a forged instrument in the third degree and vacating the sentence imposed thereon, and dismissing that count of the accusatory instrument; as so modified, the judgment of conviction is affirmed.

Defendant was charged with criminal possession of a forged instrument in the third degree ( Penal Law § 170.20 ) and attempted petit larceny ( Penal Law §§ 110.00, 155.25 ). The accusatory instrument alleges that, on May 1, 2013, in Garden City, Nassau County, defendant attempted to deposit a fraudulently obtained check in the amount of $23,500 issued by M & T Bank.

At a jury trial, an employee of the Garden City branch of M & T Bank testified that, in April 2013, defendant contacted the bank and asked about cashing a check in the amount of $23,500. Upon the bank employee's request, defendant faxed the employee a copy of the check, which indicated that the check was issued by a branch of M & T Bank located in Maryland, and that the check was a bank check or cashier's check bearing no information regarding the underlying account from which the money used to fund the issuance of the check had been withdrawn. The bank employee then contacted the Maryland branch, inquiring whether that branch had issued a bank check payable to defendant in the amount of $23,500. The Maryland branch confirmed that it had issued the check and that the check was valid. Thereafter, the bank employee called defendant and asked defendant why she was being paid $23,500. Defendant responded that she was being paid for some spices that she had made for a customer. The bank employee then asked for the customer's name, to which defendant responded that she did not know and would have to call back. Approximately three days later, defendant sent the bank employee a fax, providing, among other things, the name of the alleged customer, the name of the bank that issued the check and the title of the underlying account from which the money used to fund the issuance of the check had been withdrawn, which was Steelhouse, LLC. When the bank employee later contacted the Maryland branch to obtain a written approval for cashing the check, the Maryland branch informed the employee that "there [was] something going on with the [subject] account" and asked her to "hold onto" the check. The bank employee thereafter called defendant, informing her that the bank check could not be cashed but that defendant could come to the Garden City branch, open an account, deposit the check into the account and withdraw the funds later. The following day, on May 1, 2013, defendant went to the Garden City branch with the check and asked to see the bank employee. The bank employee asked her manager to call 911, then sat down with defendant and told defendant that they would open an account for defendant. Defendant handed the bank employee the check and her driver's license. As the bank employee was establishing the profile for defendant's account, the police arrived and arrested defendant. Upon cross-examination, the bank employee confirmed that the check in question was issued by M & T Bank and bore the requisite signatures of bank employees, and acknowledged that the check had never been endorsed by defendant.

The police officer who arrested defendant testified that, upon arriving at the Garden City branch, he saw defendant sitting at the bank employee's desk and that he ultimately retrieved the check from the crime scene.

The owner of Steelhouse, LLC testified that Steelhouse, LLC was a construction company in Maryland and that she lived in Maryland and held an account in the name of Steelhouse, LLC at the Maryland branch of M & T Bank. The owner of Steelhouse, LLC further testified that, in April 2013, she noticed that at least $23,500 had been transferred out of the company's account without her knowledge or consent. The owner was thereafter shown by the bank's employees several emails ostensibly sent by her requesting the bank to issue a check in the amount of $23,500 using the funds in her company's account. The owner testified that she had never sent or seen those emails and had never made such request. The owner also testified that she had never seen or done business with defendant and that there was no reason for any funds to be transferred out of the company's account to defendant.

Following the trial, defendant was convicted of both charges. The District Court sentenced defendant to 30 days in prison followed by three years of probation on each conviction, to run concurrently with each other, and imposed a mandatory surcharge of $175 and a $25 crime victim's assistance fee on each conviction.

Defendant first contends that her conviction of criminal possession of a forged instrument in the third degree was not supported by legally sufficient evidence, claiming, among other things, that the People failed to prove that the bank check is a forged instrument within the meaning of Penal Law § 170.20. We agree.¹

"A person is guilty of criminal possession of a forged instrument in the third degree when, with knowledge that it is forged and with intent to defraud, deceive or injure another, he [or she] utters or possesses a forged instrument" ( Penal Law § 170.20 ). A forged instrument is "a written instrument which has been falsely made, completed or altered" ( Penal Law § 170.00[7] ). "A person falsely makes' a written instrument when he [or she] makes or draws a complete written instrument ..., which purports to be an authentic creation of its ostensible maker or drawer, but which is not such either because the ostensible maker or drawer is fictitious or because, if real, he [or she] did not authorize the making or drawing thereof" ( Penal Law § 170.00[4] ; see People v. Ippolito, 20 N.Y.3d 615, 620–621, 964 N.Y.S.2d 499, 987 N.E.2d 276 [2013] ; People v. Cunningham, 2 N.Y.3d 593, 596–597, 780 N.Y.S.2d 750, 813 N.E.2d 891 [2004] ). "[T]he ostensible drawer is the person who, from the face of the instrument, would appear to be its drawer" ( People v. Levitan, 49 N.Y.2d 87, 92, 424 N.Y.S.2d 179, 399 N.E.2d 1199 [1980] ; see People v. Briggins, 50 N.Y.2d 302, 307, 428 N.Y.S.2d 909, 406 N.E.2d 766 [1980] ).

Here, inasmuch as the bank check at issue bears only the name and address of M & T Bank, the bank is the ostensible drawer of the check (see People v. Briggins, 50 N.Y.2d at 307, 428 N.Y.S.2d 909, 406 N.E.2d 766 ; People v. Levitan, 49 N.Y.2d at 92, 424 N.Y.S.2d 179, 399 N.E.2d 1199 ; see also Golden v. Citibank, N.A., 23 N.Y.3d 935, 936, 988 N.Y.S.2d 121, 11 N.E.3d 194 [2014] ; Dziurak v. Chase Manhattan Bank, N.A., 44 N.Y.2d 776, 777, 406 N.Y.S.2d 30, 377 N.E.2d 474 [1978] ). Further, the placement of the signatures of two M & T Bank employees rendered the bank the actual drawer of the check (see People v. Zeller, 122 A.D.3d 1081, 1082–1083, 996 N.Y.S.2d 780 [2014] ). Since the crime of forgery essentially "involves the making, altering, or completing of an instrument by someone other than the ostensible maker or drawer or an agent of the ostensible maker or drawer" ( People v. Levitan, 49 N.Y.2d at 90, 424 N.Y.S.2d 179, 399 N.E.2d 1199 ), there is no forgery where, as here, "the ostensible drawer and the actual drawer are in fact one and the same person" ( id. at 91, 424 N.Y.S.2d 179, 399 N.E.2d 1199 ; see People v. Cunningham, 2 N.Y.3d at 597, 780 N.Y.S.2d 750, 813 N.E.2d 891 ; People v. Morehouse, 109 A.D.3d 1022, 1023, 972 N.Y.S.2d 729 [2013] ).

The People argue that the ostensible drawer of the check should be deemed to be not M & T Bank, but the owner of the underlying account from which the money used to fund the bank check had been withdrawn. Contrary to the People's argument, the owner of the underlying account should not be deemed to be the ostensible drawer of the check, as nowhere on the check did the owner's name or any information relating to the underlying account appear (see People v. Levitan, 49 N.Y.2d at 92, 424 N.Y.S.2d 179, 399 N.E.2d 1199 ["The flaw in this argument, quite simply, is that it confuses the ostensible drawer (of a deed) with the person who could create a valid deed"] ). Given that the ostensible drawer and the actual drawer of the check is M & T Bank, the check is not a forged instrument under the statute (see People v. Cunningham, 2 N.Y.3d at 597, 780 N.Y.S.2d 750, 813 N.E.2d 891 ; People v. Asai, 66 A.D.3d 1138, 1140, 888 N.Y.S.2d 617 [2009] ). While the check was fraudulently obtained, it was the authentic creation of M & T Bank by its designated agents, who have general authority to issue bank checks (see People v. Asaro, 94 N.Y.2d 792, 793, 699 N.Y.S.2d 706, 721 N.E.2d 956 [1999] ; People v. Asai, 66 A.D.3d at 1139–1140, 888 N.Y.S.2d 617 ; People v. Seavey, 305 A.D.2d 937, 938, 762 N.Y.S.2d 435 [2003] ; People v. Adkins, 236 A.D.2d 850, 850, 653 N.Y.S.2d 1007 [1997] ). Therefore, even viewing the evidence in the light most favorable to the People, there is no valid line of reasoning and permissible inferences from which a rational jury could have concluded that the proof was sufficient to support defendant's conviction of criminal possession of a forged instrument in the third degree (see People v. Asai, 66 A.D.3d at 1140, 888 N.Y.S.2d 617 ; see generally ...