| People v Brousseau |
| 2017 NY Slip Op 02850 [149 AD3d 1275] |
| April 13, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v RejeanBrousseau, Appellant. |
Rebecca L. Fox, Plattsburgh, for appellant.
Andrew J. Wylie, District Attorney (Jaime A. Douthat of counsel), for respondent.
McCarthy, J.P. Appeal from a judgment of the County Court of Clinton County (McGill, J.),rendered November 13, 2014, upon a verdict convicting defendant of the crime of criminalpossession of a forged instrument in the first degree.
Defendant was arrested in August 2012 for tendering eight uncontestedly counterfeit $100bills, in United States currency, to a gas station clerk in the Town of Champlain, Clinton County.Thereafter, defendant was charged with criminal possession of a forged instrument in the firstdegree. In September 2014, a jury trial was held, after which defendant was found guilty ascharged. In November 2014, the court sentenced defendant to time served and a $2,800 fine, plusmandatory fees. Defendant appeals, and we affirm.
Defendant's contentions on appeal are limited to challenges to the legal sufficiency of theevidence, or alternatively to the weight of the evidence, as to the requisite elements thatdefendant knew that the eight $100 bills were forged and that he intended to defraud, deceive orinjure another by tendering them. "In conducting a legal sufficiency analysis, [this Court] view[s]the evidence in the light most favorable to the People and evaluate[s] 'whether there is any validline of reasoning and permissible inferences which could lead a rational person to the conclusionreached by the jury on the basis of the evidence at trial and as a matter of law satisfy the proofand burden requirements for every element of the crime charged' " (People v Graham, 138 AD3d1242, 1242 [2016], lv denied 28 NY3d 930 [2016], quoting People vBleakley, 69 NY2d 490, 495 [1987]). As to weight of the evidence review, where a differentfinding would not have been unreasonable, this Court must, "like the trier of fact below, weighthe relative probative force of conflicting testimony and the relative strength of conflictinginferences that [*2]may be drawn from the testimony" (People v Romero, 7 NY3d 633,643 [2006] [internal quotation marks and citations omitted]; People v Olsen, 124 AD3d 1084, 1085-1086 [2015], lvdenied 26 NY3d 933 [2015]). "In reviewing the evidence, [this Court] accord[s] greatdeference to the jury's credibility determinations given its opportunity to hear the testimony andobserve the witnesses' demeanor" (People v Lopez-Aguilar, 64 AD3d 1037, 1037 [2009] [citationomitted], lv dismissed 13 NY3d 940 [2010]).
"A person is guilty of criminal possession of a forged instrument in the first 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," such as money (Penal Law § 170.30;see Penal Law § 170.15; People v Bailey, 13 NY3d 67, 70 [2009]). "An essential element ofthe offense of criminal possession of a forged instrument is knowledge by the defendant that theinstrument is forged" (People v Johnson, 65 NY2d 556, 560 [1985] [citations omitted];see Penal Law §§ 15.05 [2]; 170.30). "The mere negotiation orutterance of a forged instrument cannot, of itself, establish a presumption that defendant hadknowledge of the forged nature of the instrument" (People v Johnson, 65 NY2d at 561[citations omitted]; accord People vSilberzweig, 58 AD3d 762, 762 [2009], lv denied 12 NY3d 920 [2009]). "Guiltyknowledge of forgery may be shown circumstantially by conduct and events" (People vJohnson, 65 NY2d at 561 [citation omitted]; accord People v Smith, 138 AD3d 1248, 1250 [2016], lvdenied 27 NY3d 1139 [2016]; seePeople v Rodriguez, 17 NY3d 486, 489 [2011]).
The attendant at the gas station at issue testified that she was working when defendant pulledin driving a semi-trailer truck with an attached camper. The attendant secured defendant's driver'slicense, as per policy for customers wishing to purchase diesel fuel without first providing acredit card, after which defendant dispensed $775 of diesel fuel. The attendant testified that,when defendant returned and began counting bills from a wad of money to pay for the fuel, sherealized the bills were counterfeit "right off the bat" and "[j]ust by looking at" them. She checkedthe eight $100 bills that defendant had tendered with a counterfeit marker, confirmed that theywere counterfeit and informed defendant of this fact. Defendant then gave the attendant eightauthentic $100 bills. At some point, defendant asked the attendant to return the counterfeit billsto him, which request she refused.
The state trooper first dispatched to the scene testified that it was immediately apparent thatthe bills at issue were counterfeit, because "the paper felt wrong and the coloring was obviouslynot the right color. There were some that were very dark and some that were almost brightlycolored." According to the trooper, defendant stated that he obtained the bills from an associatein Canada and that he did not know the bills were counterfeit. Defendant showed the trooper thathe possessed 19 $100 bills, all of which were verified to be legitimate. Further, as the policeinvestigator in charge of the case noted, the counterfeit bills are virtually identical copies of oneanother because the serial numbers and year of issuance are all the same.
Defendant, a Canadian citizen who testified on his own behalf, denied knowing that the eight$100 bills were forged when he tendered them to the clerk. As he had stated to authorities on theday in question, defendant testified that he had obtained the bills in a currency exchange that hehad conducted with a business owner that he knew in Canada. Defendant testified that he hadfirst contacted a bank that had informed him that it would give him $.86 in United Statescurrency in exchange for $1 of Canadian currency. Defendant then contacted the businessperson,with whom he had exchanged currency in the past, who indicated that he was willing to givedefendant a vastly more favorable exchange rate: $1 in United States currency for $1 of Canadiancurrency. Defendant further testified that the businessperson ultimately gave him what hebelieved to be $4,000 in United States currency in exchange for defendant's $4,000 in Canadian[*3]currency. Defendant testified that he had not noticed anythingunusual about the bills that he had received in the exchange and further explained that the reasonhe attempted to obtain the bills from the attendant after she identified them as counterfeit was tobring the bills back to the businessperson. From defendant's testimony, it is clear that, as along-haul trucker, he had often traveled through the United States and paid for fuel in cash.
Thus, the trial evidence established that defendant had pumped enough fuel to use all eight ofthe counterfeit $100 bills that he possessed. At the time of the transaction, defendant had, amongother bills, 35 $100 bills in United State currency on his person, eight of which werecounterfeit.[FN*] Despitedefendant's claims that he did not notice anything different about the counterfeit bills, defendantselected those exact eight counterfeit bills to pay for the fuel, without selecting one of theremaining 27 legitimate $100 bills. Further, according to defendant's own testimony, he knewthat the exchange rate that he received from the businessperson was vastly more favorable thanthat which was offered by a legitimate financial institution. In addition, defendant had numerousauthentic $100 bills on his person that would have provided a comparison between the authenticand counterfeit currency, particularly as to the differences in color and texture. Moreover, fromdefendant's acknowledgment of his frequent travels in the United States and his frequent use ofcash at gas stations, one can reasonably infer defendant's general familiarity with authenticUnited States currency. Finally, the jury was able to consider the credibility of defendant'stestimony in light of its opportunity to view and consider the counterfeit bills, particularly theircolor, texture and identical serial numbers and year of issuance. Considering the circumstantialevidence, there is legally sufficient evidence to conclude that defendant knew that the eight $100bills were counterfeit and that he tendered the bills with the requisite intent to defraud, deceive orinjure another (see People v Rodriguez, 17 NY3d at 489-490; People v Bickley, 99 AD3d 1113,1114 [2012], lv denied 20 NY3d 1009 [2013]). Moreover, and deferring to the jury'sdetermination that defendant's testimony that he did not know that the bills were counterfeit wasnot credible, we find that the verdict is not against the weight of the evidence (see People vBickley, 99 AD3d at 1114; seegenerally People v Monteiro, 93 AD3d 898, 900 [2012], lv denied 19 NY3d 964[2012]).
Garry, Rose, Mulvey and Aarons, JJ., concur. Ordered that the judgment is affirmed.
Footnote *:This accounts for the eightcounterfeit $100 bills, the eight legitimate $100 bills that defendant used to pay for the diesel andthe 19 legitimate $100 bills that defendant retained.