People v. Loughlin

• Decision Date: 08 October 1985
• Citation: 485 N.E.2d 1022,66 N.Y.2d 633,495 N.Y.S.2d 357
• Parties: , 485 N.E.2d 1022 The PEOPLE of the State of New York, Appellant-Respondent, v. Kenneth LOUGHLIN, Respondent-Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 357

495 N.Y.S.2d 357

66 N.Y.2d 633, 485 N.E.2d 1022

The PEOPLE of the State of New York, Appellant-Respondent, v. Kenneth LOUGHLIN, Respondent-Appellant.

Court of Appeals of New York.

Oct. 8, 1985.

Carl A. Vergari, Dist. Atty. (Diane E. Selker and Anthony J. Servino, White Plains, of counsel), for appellant-respondent.

James M. Rose and Natasha Rose, White Plains, for respondent-appellant.

OPINION OF THE COURT MEMORANDUM.

The order of the Appellate Division, 105 A.D.2d 846, 482 N.Y.S.2d 42, should be modified by reversing so much thereof as reversed on the law defendant's conviction of criminal possession of a forged instrument in the second degree, vacated the sentence and dismissed the indictment as to that count, and by remitting the matter to that court for consideration of the facts and, as so modified, is affirmed.

There is here, like the situation in People v. Johnson, 65 N.Y.2d 556, 493 N.Y.S.2d 445, 483 N.E.2d 120, but unlike the situation in People v. Green, 53 N.Y.2d 651, 438 N.Y.S.2d 992, 421 N.E.2d 112, evidence sufficient to support a finding that defendant knew when he presented the check for cashing that it was forged. When reviewing the sufficiency of the evidence to sustain a guilty verdict, we are obliged to do so in the light most favorable to the People, bearing in mind that credibility is a matter to be determined by the trier of the facts (People v. Malizia, 62 N.Y.2d 755, 757, 476 N.Y.S.2d 825, 465 N.E.2d 364).

There was evidence that when defendant asked John Scivoletto to cash the $377 check made out to Richard Moschiano he told Scivoletto that the payee was on vacation and had given him the check to cash, and offered to accept $300 for the check if Scivoletto would cash it. Because defendant could not have cashed the check for Moschiano unless it bore the latter's indorsement, the trier of fact could infer from that testimony that defendant then knew that the check was indorsed with the payee's name, even though Scivoletto did not look at the back of the check. From defendant's statement that Moschiano had given him the check and Moschiano's testimony that he had neither indorsed nor authorized indorsement of the check, it could also be inferred that defendant was aware when he offered the check to Scivoletto for cashing that it bore a forged indorsement. Nor did defendant's trial testimony that he received the check from a person known only to him as Blackie, although it contradicted Scivoletto, affect the...