| People v Hughes |
| 2013 NY Slip Op 07886 [111 AD3d 1170] |
| November 27, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, vChristopher Hughes, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Vincent Stark of counsel), forrespondent.
Spain, J. Appeal from a judgment of the County Court of Albany County (Herrick,J.), rendered August 22, 2012, upon a verdict convicting defendant of the crime ofcriminal possession of a forged instrument in the second degree.
Defendant, a police officer with the Town of Bethlehem Police Department(hereinafter BPD), was placed on disability leave in 2009. As a result, he turnedin—as required—his police identification card, police badge and firearm. InSeptember 2010, defendant contacted Galls, LLC, the company that produces badges forBPD, and submitted an online order for a BPD badge indicating his status as a retiredpatrol officer. A Galls representative contacted defendant, obtained payment informationand advised him that a police identification card was required to process his badge order.Thereafter, on October 7, 2010, defendant took a CD containing an image of a policephoto identification card (hereinafter the police ID card) to a Staples store and asked aclerk to send an email to Galls on his behalf containing the image of the police ID card;the image sent to Galls consisted of a BPD police ID card in defendant's name containinghis picture, on what appears to be official BPD letterhead. A Galls representativecontacted BPD Deputy Chief Timothy Beebe, who is responsible for the issuance ofBPD police ID cards, and Beebe refused to authorize a retirement badge for defendantbecause he was not retired but, rather, still employed while on disability leave. Followingan investigation by the State Police, it was determined that the police ID card thatdefendant sent to Galls was fraudulent as it had not been created by Linstar, the vendorthat exclusively produces BPD police ID cards, nor had it [*2]been authorized by BPD and it did not contain the officialauthorized signature of the Chief of Police, Louis Corsi, that was on file with Linstar.Defendant was charged with—and convicted after a jury trial of—criminalpossession of a forged instrument in the second degree. Sentenced to five years ofprobation, defendant appeals.
Initially, having made only a general motion for dismissal at trial, defendant failed topreserve the legal sufficiency challenge he now raises on appeal (see People v Alnutt, 107 AD3d1139, 1142 [2013]; Peoplev Morrison, 71 AD3d 1228, 1229 [2010], lv denied 15 NY3d 754[2010]). However, defendant argues that the verdict is against the weight of the evidenceand "our weight of the evidence review necessarily involves an evaluation of whether allelements of the charged crime were proven beyond a reasonable doubt at trial" (People v Thompson, 92 AD3d1139, 1140 n 2 [2012] [internal quotation marks and citation omitted], lvdenied 21 NY3d 555 [2013]; see People v Danielson, 9 NY3d 342, 349 [2007]).
Indeed, the verdict was not against the weight of the credible evidence. To sustainthe charge, the People were required to prove that defendant knowingly possessed aforged instrument "with intent to defraud, deceive or injure another" (Penal Law §170.25). The testimony of the Staples clerk established that defendant possessed the CDthat contained the image of the fraudulent police ID card. Defendant's knowledge that itwas forged was demonstrated by proof that he had previously possessed and turned in hisofficial police ID card the prior year, and that BPD had not authorized the police ID cardcontained on the CD; further, the police ID card did not contain the official signature ofthe Chief of Police used for police ID cards, and the exclusive vendor who made BPDpolice ID cards (Linstar) did not create the card pictured on the CD. Linstar'srepresentative pointed out numerous attributes that were noticeably different betweendefendant's official police ID card (which defendant had turned into BPD) and the copyof the forged card he had emailed to Galls. Given that "[g]uilty knowledge of forgerymay be shown circumstantially," we find the evidence adduced at trial to be highlypersuasive that defendant knew the police ID card he submitted to Galls was forged (People v Rebollo, 107 AD3d1059, 1060 [2013]; seePeople v Silberzweig, 58 AD3d 762, 762-763 [2009], lv denied 12NY3d 920 [2009]).
The fact that the forged police ID card bore a close resemblance to an authentic onedid not, on these facts, undermine the conclusion that defendant was aware it was aforgery. Moreover, the People were not required to prove where the police ID card camefrom or who created it, which are not elements of this crime (see Penal Law§ 170.25). Likewise, "evidence of an intent to defraud or deceive may be inferredfrom a defendant's actions and surrounding circumstances" (People v Rebollo,107 AD3d at 1061). Here, the jury rationally concluded that defendant submitted theforged police ID card to Galls, intending to deceive its representatives into creating aretired police officer badge for him, to which he had no entitlement and for which he didnot qualify. Moreover, defendant also used a copy of BPD letterhead to submit the imageof the forged police ID card, letterhead which only the Chief of Police was authorized touse and who had not approved its use here, further supporting defendant's intent todeceive. That defendant did not attempt to conceal his true identity in this deceptivescheme is likely attributable to his desire to have the police badge in his correct name foruse in the community where he was known, as well as his ignorance that Galls wouldcontact BPD officials to confirm his status and entitlement to the sought-after badge; itdid not suggest that defendant lacked the intent to deceive.
The jury also reasonably rejected defendant's claim that he believed he was retiredfrom [*3]BPD and, thus, entitled to a retirement badge;the evidence established, to the contrary, that defendant remained on the BPD payrolland on disability leave. There was no evidence to support a reasonable belief bydefendant that he was retired from BPD, and his intent to deceive was readily inferablefrom his use of a forged police ID card. Even if an acquittal would not have beenunreasonable, upon deferring to the jury's credibility determinations and weighing theconflicting testimony in a neutral light, and examining the "rational inferences that maybe drawn from the evidence, and evaluat[ing] the strength of such conclusions"(People v Danielson, 9 NY3d at 348; People v Bleakley, 69 NY2d 490,495 [1987]), we find that the verdict was supported by the weight of the credibleevidence.
Defendant's claims of prosecutorial misconduct are largely unpreserved and, in anyevent, the complained of prosecutorial summation remarks did not deprive defendant of afair trial or due process (seePeople v Houck, 101 AD3d 1239, 1240 [2012]; People v Weber, 40 AD3d1267, 1268 [2007], lv denied 9 NY3d 927 [2007]). While the prosecutormade one improper remark vouching for the credibility of the Linstar representative(see People v Russell, 307 AD2d 385, 386 [2003]), her remarks and stylistic useof personal pronouns such as "we" were otherwise fair comment on the evidence andwere reasonable responses to the defense summation (see People v Williamson, 77 AD3d 1183, 1185 [2010];People v Grajales, 294 AD2d 657, 658 [2002], lv denied 98 NY2d 697[2002]).
Further, the People did not improperly shift the burden of proof to defendant (see People v Anderson, 89AD3d 1161, 1162 [2011]; cf. People v Allen, 13 AD3d 892, 897-898 [2004], lvdenied 4 NY3d 883 [2005]). When the prosecutor rhetorically asked jurors if therewas any evidence that defendant had inquired into the authenticity of the image of thepolice ID card he submitted to Galls, County Court sua sponte advised the jury that thePeople bore the burden of proof and "[t]he defendant has no burden." This principle wasalso reiterated in the court's final charge. When the prosecutor pointed out in summationthat defendant "never tried to go through his chain of command" to get a retirementbadge, defendant's objection was overruled; the prosecutor then clarified that there was"no evidence" of that, all fair comment on the testimony elicited from thePeople's witnesses. This remark did not suggest that defendant had any burden ofproof.
Defendant received meaningful representation, as counsel made appropriate pretrialmotions and objections at trial, pursued a cogent defense strategy throughout andeffectively cross-examined the People's witnesses (see People v Henry, 95 NY2d563, 565 [2000]). Counsel's decision not to elicit that State Police found no incriminatingevidence on defendant's seized home computer[FN*]may have been a strategic effort to avoid juror speculation that defendant created theforged police ID card on his own computer and went to Staples to send Galls an email toavoid leaving a trial on his own computer (see People v Caban, 5 NY3d 143, 152 [2005]). Defensecounsel's misstatement about reasonable doubt was clarified by the court's subsequentcorrect and clear charge, that the People were required to prove each element beyond areasonable doubt and, if the People failed to so prove any element, the jury must finddefendant not guilty. None of defendant's remaining points supports a finding thatcounsel ineffectively represented him at trial.[*4]
Finally, we agree, in part, with defendant'scontention that County Court improperly denied his motion requesting permission toquestion Corsi and Beebe about prior notices of discipline, grievances filed by defendantand defendant's pending federal lawsuit against BPD and Corsi. The court concluded thatthe issues were collateral and would be precluded unless the door were opened by awitness's testimony reflecting bias or hostility toward defendant. While "trial courts havebroad discretion to keep the proceedings within manageable limits and to curtailexploration of collateral matters," "extrinsic proof tending to establish a reason tofabricate is never collateral and may not be excluded on that ground" (People vHudy, 73 NY2d 40, 56 [1988]; see People v Spencer, 20 NY3d 954, 956 [2012]; People v Alnutt, 101 AD3d1461, 1465 [2012], lv denied 21 NY3d 941 [2013]; cf. People v Hines, 102 AD3d889, 889 [2013], lv denied 21 NY3d 1042 [2013]). Evidence of Beebe'sreason to fabricate was largely speculative, although not as to Corsi. Nonetheless, giventhe overwhelming independent proof of defendant's guilt, including the testimony of theLinstar and Galls' representatives, the Staples employee and a State Police investigator,we find that this error was harmless beyond a reasonable doubt (see People vSpencer, 20 NY3d at 956-957; People v Crimmins, 36 NY2d 230, 240-241[1975]).
Lahtinen, J.P., Stein and Egan Jr., JJ., concur. Ordered that the judgment is affirmed.
Footnote *: Notably, defendant'scomputer was not seized until months later.