People v. Martin

• Decision Date: 10 April 2014
• Citation: 983 N.Y.S.2d 360,116 A.D.3d 1166,2014 N.Y. Slip Op. 02469
• Parties: The PEOPLE of the State of New York, Respondent, v. Terry MARTIN, Appellant.
• Court: New York Supreme Court — Appellate Division

116 A.D.3d 1166
983 N.Y.S.2d 360
2014 N.Y. Slip Op. 02469

The PEOPLE of the State of New York, Respondent,
v.
Terry MARTIN, Appellant.

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

April 10, 2014.

Bruce D. Lennard, Guilderland, for appellant.

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

Before: LAHTINEN, J.P., McCARTHY, GARRY and EGAN JR., JJ.

McCARTHY, J.

Appeal from a judgment of the County Court of Albany County (Breslin, J.), rendered November 13, 2007, upon a verdict convicting defendant of the crime of forgery in the second degree (two counts).

[983 N.Y.S.2d 361]

In October 2006, defendant twice used a credit card in the name of Arthur Wolfe, who was—until his death in 2003—the domestic partner of defendant's fiancee.¹ Based on these actions, a jury found defendant guilty of two counts of forgery in the second degree. County Court sentenced him, as a second felony offender, to two terms of 3 to 6 years in prison, to be served concurrently to each other but consecutively to a separate four-year sentence on a recent driving while intoxicated conviction. Defendant appeals.

The evidence was legally sufficient and the verdict was not against the weight of the evidence. “A person is guilty of forgery in the second degree when, with intent to defraud, deceive or injure another, he [or she] falsely makes, completes or alters a written instrument which is or purports to be, or which is calculated to become or to represent if completed ... [a] credit card ... or other instrument which does or may evidence, create, transfer, terminate or otherwise affect a legal right, interest, obligation or status” (Penal Law § 170.10[1]; see People v. Le Grand, 81 A.D.2d 945, 946, 439 N.Y.S.2d 695 [1981],lv. denied54 N.Y.2d 757, 443 N.Y.S.2d 1048, 426 N.E.2d 772 [1981] ). Employees of the establishment where the credit card was used, as well as a video from the night in question, identified defendant as the person who twice tendered the card and signed the two receipts. The only real element at issue was whether defendant signed the credit card receipts with “intent to defraud, deceive or injure” the bank that issued the credit card. Intent to defraud or deceive may be shown circumstantially and “may be inferred from a defendant's actions and surrounding circumstances” ( People v. Rebollo, 107 A.D.3d 1059, 1060–1061, 966 N.Y.S.2d 602 [2013];see People v. Hughes, 111 A.D.3d 1170, 1172, 975 N.Y.S.2d 507 [2013] ). One employee testified that defendant introduced himself as Artie Wolfe, and defendant signed the name Arthur Wolfe on the receipts, rather than using his own name. Viewing the evidence in the light most favorable to the People, and giving them the benefit of all permissible inferences, this evidence was legally sufficient to support the convictions ( see People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987];People v. Rebollo, 107 A.D.3d at 1061, 966 N.Y.S.2d 602).

A bank employee testified that defendant's wife was listed by Wolfe as an authorized user of the credit card,...