People v. Rebollo

• Decision Date: 06 June 2013
• Citation: 966 N.Y.S.2d 602,2013 N.Y. Slip Op. 04060,107 A.D.3d 1059
• Parties: The PEOPLE of the State of New York, Respondent, v. Pandora L. REBOLLO, Appellant.
• Court: New York Supreme Court — Appellate Division

107 A.D.3d 1059
966 N.Y.S.2d 602
2013 N.Y. Slip Op. 04060

The PEOPLE of the State of New York, Respondent,
v.
Pandora L. REBOLLO, Appellant.

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

June 6, 2013.

[966 N.Y.S.2d 603]

Abbie Goldbas, Utica, for appellant.

William G. Gabor, District Attorney, Wampsville (Elizabeth S. Healy of counsel), for respondent.

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

EGAN Jr., J.

[107 A.D.3d 1059]Appeal from a judgment of the County Court of Madison County (DiStefano, J.), rendered March 21, 2012, upon a verdict convicting defendant of the crimes of criminal possession of a forged instrument in the second degree and criminal possession of stolen property in the fifth degree.

A number of years ago, Carolyn Northup Lioto opened a checking account with Key Bank National Association and, in conjunction therewith, was issued a bank card and checks. Although Lioto closed the account shortly thereafter, she held onto the checks—storing them in a box underneath her bed. In fall 2010, defendant, whom Lioto had known for 25 years, visited Lioto at her Madison County home. When it came time for Lioto [107 A.D.3d 1060]to step outside to meet her daughter's school bus, defendant indicated that she did not feel well and asked to wait inside the residence. Lioto acquiesced and, as a result, defendant was left alone in the home for 15 to 20 minutes. Upon Lioto's return, defendant immediately left the premises.

Within one month of defendant's visit, Lioto began receiving insufficient funds notices from various merchants with respect to checks drawn on the long-closed Key Bank account. One such check was made payable to Kevin Payne, defendant's nephew, and was deposited into Payne's account at Oneida Savings Bank. The bank—suspecting that the $1,800 check originated from a closed or counterfeit account—conducted an internal investigation and notified law enforcement. Thereafter, defendant was indicted and charged with criminal possession of a forged instrument in the second degree and criminal possession of stolen property in the fifth degree. Following a jury trial, defendant was convicted as charged and sentenced to, among other things, 1 1/3 to 4 years in prison—said

[966 N.Y.S.2d 604]

sentence to be served consecutively to the sentence defendant then was serving for forgery in the second degree. This appeal by defendant ensued.

We affirm. Defendant initially contends that her convictions are not supported by legally sufficient evidence—an argument premised, in large measure, upon defendant's assertion that she and Lioto were in cahoots with one another and, therefore, the check in question cannot be said to be either stolen or to constitute a forged instrument. Lioto's credibility, however, was fully explored at trial, and the jury considered and rejected defendant's theory of the crimes. As such, we discern no basis upon which to disturb the jury's credibility determination ( see generally People v. Wilson, 100 A.D.3d 1045, 1046, 952 N.Y.S.2d 837 [2012];People v. Weiss, 99 A.D.3d 1035, 1038, 952 N.Y.S.2d 637 [2012],lvs. denied20 N.Y.3d 1012, 1015, 960 N.Y.S.2d 355, 358, 984 N.E.2d 330, 333 [2013] ).

Turning to the specific elements of the underlying offenses, “[a] person is guilty of criminal possession of a forged instrument in the second degree when, with knowledge that it is forged and with intent to defraud, deceive or injure another, he [or she] utters or possesses any forged instrument of a kind specified in [Penal Law § 170.10]” (Penal Law § 170.25; see People v. Muhammad, 16 N.Y.3d 184, 187, 920 N.Y.S.2d 760, 945 N.E.2d 1010 [2011] ), including a check ( see People v. Hold, 101 A.D.3d 1692, 1692, 956 N.Y.S.2d 769 [2012] ). Similarly, and insofar as is relevant here, “[a] person is guilty of criminal possession of stolen property in the fifth degree when he [or she] knowingly possesses stolen property, with intent to benefit himself [or herself] or a person other than an owner thereof” (Penal Law § 165.40). “Guilty knowledge of forgery may be shown circumstantially by conduct and events” [107 A.D.3d 1061]( People v....