People v. Silberzweig

• Decision Date: 20 January 2009
• Docket Number: 2007-01232.
• Citation: 2009 NY Slip Op 00417,58 A.D.3d 762,871 N.Y.S.2d 690
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. MATTHEW SILBERZWEIG, Appellant.
• Court: New York Supreme Court — Appellate Division

58 A.D.3d 762

871 N.Y.S.2d 690

2009 NY Slip Op 00417

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. MATTHEW SILBERZWEIG, Appellant.

2007-01232.

Appellate Division of the Supreme Court of New York, Second Department.

January 20, 2009.

Appeal by the defendant from a judgment of the Supreme Court, Richmond County (Rooney, J.), rendered January 19, 2007, convicting him of criminal possession of a forged instrument in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant was convicted of criminal possession of a forged instrument in the second degree based upon his presentation of an expired used car dealer's license, from which the expiration date had been removed, while attempting to purchase a vehicle at a used car auction without paying sales tax. Viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]), we find that the evidence was legally sufficient to establish the defendant's guilt beyond a reasonable doubt (see People v Johnson, 65 NY2d 556 [1985]). Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v Mateo, 2 NY3d 383, 410 [2004], cert denied 542 US 946 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]).

The defendant correctly observes that "[a]n essential element of the offense of criminal possession of a forged instrument is knowledge by the defendant that the instrument is forged" (People v Johnson, 65 NY2d 556, 560 [1985]; see Penal Law § 170.25). Moreover, while "[t]he mere negotiation or utterance of a forged instrument cannot, of itself, establish a presumption that [the] defendant had knowledge of the forged nature of the instrument" (People v Johnson, 65 NY2d at 561), the fact remains that "[g]uilty knowledge of forgery may be shown circumstantially by conduct and events" (People v Johnson, 65 NY2d at 561). At the trial of this matter, the jury was presented with evidence that the defendant was the secretary of Halsey Transport Corp., a used car dealer, and that he was aware that in order to purchase used vehicles at auction without paying sales tax, he was required to present, inter alia, a valid used car dealer's license issued by the New York State Department of Motor Vehicles. There also was evidence that the defendant was an experienced purchaser at used car auctions, having participated with his father, the president of Halsey Transport Corp., in more than 100 such purchases, and having made such purchases on behalf of the corporation by himself on more than a dozen occasions. Furthermore, the defendant had worked for the corporation for some 10 to 12 years and was fully familiar with the auction process, with the paperwork which had to be presented during each purchase, and with the way a valid dealer's license should look. Finally, the proof demonstrated that on August 5, 2004 the defendant presented the license for Halsey Transport Corp. in connection with his attempt to purchase a used vehicle at auction without paying sales tax thereon, that said license had expired in January 2004, that the expiration date had been obliterated from the license which he presented, and that the defendant subsequently made telephone calls requesting the return of that document following its confiscation by the auction authorities.

The foregoing facts, which were established through credible and consistent testimony as well as documentary evidence, constituted persuasive circumstantial proof that the defendant knew the license had been altered at the time he presented it. Accordingly, we cannot say on this record that the verdict convicting him of criminal possession of a forged instrument in the second degree was against the weight of the evidence. While the defendant offered the testimony of his father which sought to minimize the defendant's knowledge of and involvement in the corporation's business, that testimony merely presented a credibility issue for determination by the jury, and we discern no basis to disturb the jury's resolution of that issue in favor of the prosecution.

Concur: MASTRO, J.P., ANGIOLILLO, and CARNI, JJ.

ENG, J. (dissenting and voting to reverse the judgment, on the facts, to dismiss the indictment, and to remit the matter to the Supreme Court, Richmond County, for the purpose of entering an order in its discretion pursuant to CPL 160.50, with the following memorandum):

I disagree with my colleagues' conclusion that the circumstantial evidence in this case was sufficiently persuasive to prove that the defendant knowingly possessed a forged instrument, and believe that his conviction should be reversed upon the ground that it was against the weight of the evidence.

The evidence presented at trial demonstrated that the defendant is a New York City Sanitation Department employee who helps his father operate a used car business. Licensed used car dealers who possess valid business certificates issued by the New York State Department of Motor Vehicles (hereinafter the DMV) are permitted to purchase used cars at City of New York auctions without having to pay sales tax. The business certificate issued to Halsey Transport Corp. (hereinafter Halsey), the dealership operated by the defendant's father, expired in January 2004. However, approximately eight months later, the defendant attended a city auction and attempted to purchase a used car on Halsey's behalf without paying sales tax by presenting a business certificate which had been altered to remove its expiration date. For this act, the defendant was charged, inter alia, with criminal possession of a forged instrument in the second degree.

At trial the prosecution relied primarily upon the testimony of Lieutenant John Schwartz of the New York City Sheriff's Office, the officer responsible for conducting all city-wide auctions of vehicles seized for nonpayment of parking tickets. At the time of the defendant's arrest, Lieutenant Schwartz had been conducting such auctions for several years, and had known the defendant for "quite some time" because he came to "a lot" of auctions. The lieutenant also noted that the defendant attended the auctions sometimes by himself and sometimes accompanied by his father, and that he purchased cars "at a lot of the auctions." He estimated that he had "dealt" with the defendant at auctions more than a dozen times. Lieutenant Schwartz explained that auctions are open to licensed used car dealers and to members of the general public. Although members of the public who successfully bid on auctioned vehicles are required to pay sales tax, licensed used car dealers are permitted to purchase vehicles without having to pay sales tax because that tax will ultimately be paid by the consumer who purchases the car from the dealer.

On August 5, 2004 the defendant attended an auction in Staten Island and successfully bid on a 1999 Ford. When asked at trial whether he had any interaction with the defendant on August 5th, Lieutenant Schwartz replied that "at subsequent auctions I mentioned to [the defendant] that we're updating our paperwork as far as licensed used car dealers go," and requested that he bring in "updated information so that he could forego the payment of sales tax." When the defendant presented his "paperwork" to the auction's cashier on August 5th to establish that he was purchasing the vehicle on behalf of his father's dealership, Halsey, the cashier called Lieutenant Schwartz over and asked him to take a look at the documents, which included a business certificate in Halsey's name. Since Lieutenant Schwartz "had some earlier knowledge" that Halsey was no longer in business, he contacted the DMV and asked an individual at the DMV to examine and verify the document for him. He explained that he asked the DMV for assistance because he was "not familiar with the document," and the specifics of what it should contain. Lieutenant Schwartz then sent a facsimile copy of the business certificate to the DMV. Upon receiving a reply from the DMV, the Lieutenant advised the defendant that based upon the information he had received, he could not allow him to purchase the vehicle without the payment of sales tax.

The People's only other witness, an investigator employed by the DMV, briefly testified that Lieutenant Schwartz contacted her on August 5, 2004 to verify the business certificate which the defendant had presented at the auction. She explained that the subject business certificate was not valid because it did not contain an expiration date, and that the business certificate issued to Halsey had actually expired in January 2004. The DMV investigator was not aware of whether anyone had ever notified Halsey that its business certificate had expired. At the close of the People's case, defense counsel moved to dismiss the indictment for failure to prove a prima facie case, arguing that the testimony of the two prosecution witnesses was insufficient to establish that the defendant had knowledge that the business certificate had been altered. However, the trial court reserved decision on the motion.

The defendant then called his father Michael Silberzweig to testify on his behalf. Silberzweig testified that he owned Halsey, and that he had continued to...