| People v Gretzinger |
| 2018 NY Slip Op 05716 [164 AD3d 1021] |
| August 9, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Paula F. Gretzinger, Appellant. |
Robert M. Cohen, Ballston Lake, for appellant.
Karen A. Heggen, District Attorney, Ballston Spa (Gordon W. Eddy of counsel), forrespondent.
Devine, J.P. Appeal from a judgment of the County Court of Saratoga County (Murphy III,J.), rendered July 21, 2016, upon a verdict convicting defendant of the crime of criminalpossession of a forged instrument in the second degree.
Following an investigation, defendant was charged in an indictment with offenses stemmingfrom her depositing a check into an individual bank account she was opening. The check wasmade out to defendant and Gerard Gretzinger (hereinafter Gretzinger), who were married but inthe midst of tumultuous divorce proceedings at the time. Gretzinger only learned of the check'sexistence later and reported to authorities that he had not signed it. A jury trial ended withdefendant being convicted of criminal possession of a forged instrument in the second degree.County Court sentenced her to four months in jail and five years of probation. Defendant nowappeals.[FN*]
Defendant contends that the evidence did not demonstrate that she possessed or uttered thecheck "with knowledge that it [was] forged and with intent to defraud, deceive or injure another"so as to support a conviction for criminal possession of a forged instrument in the second degree(Penal Law § 170.25; seePeople v Glover, 160 AD3d 1203, 1204 [2018]). In that [*2]regard, "[g]uilty knowledge of forgery may be showncircumstantially by conduct and events, and evidence of an intent to defraud or deceive may beinferred from a defendant's actions and surrounding circumstances" (People v Rebollo, 107 AD3d 1059,1060-1061 [2013] [internal quotation marks and citation omitted]; see People v Johnson,65 NY2d 556, 561 [1985]; People vMonteiro, 93 AD3d 898, 899 [2012], lv denied 19 NY3d 964 [2012]).
The check has a legible indorsement by defendant and an illegible one that Gretzingertestified was not his. Defendant acknowledged as much in a recorded conversation with a StatePolice investigator, stating that she had no contact with Gretzinger regarding the pertinent checkand three others issued as a result of a homeowner's insurance claim. The other checks weredeposited by defendant into an account jointly owned by her and Gretzinger, but she sought todeposit the check at issue into an individual account that she was opening at a different bank.Defendant encountered difficulty depositing the check inasmuch as Gretzinger was absent andhis name was not on the new account, prompting the teller to summon the branch manager. Thebranch manager granted approval to accept the check for deposit and testified, among otherthings, that she knew defendant from prior business dealings, assumed that the second signatureon the check was Gretzinger's and was given no reason to believe otherwise by defendant.Although "the mere attempted negotiation or utterance of a forged instrument cannot, of itself,establish a presumption that defendant had knowledge the instrument was forged" (People vMiller, 144 AD2d 94, 98 [1989]; see People v Johnson, 65 NY2d at 561), theforegoing proof left no doubt that defendant knew Gretzinger's indorsement on the check to beforged and nevertheless attempted to deposit the check with intent to deceive, defraud or injureanother person. There was, as a result, legally sufficient proof to support the conviction (seePeople v Loughlin, 66 NY2d 633, 635 [1985]; People v Hoffey, 296 AD2d 660,660-661 [2002]; People v Dean, 177 AD2d 792, 794 [1991], lv denied 79 NY2d855 [1992]). To the extent that defendant also argues that the verdict was against the weight ofthe evidence, even accepting that acquittal was a reasonable possibility so as to warrant such areview, we find that "the jury was justified in finding . . . defendant guilty beyond areasonable doubt" (People vDanielson, 9 NY3d 342, 348 [2007]).
Defendant next points out that a State Police investigator testified, after an overruledobjection, that he had compared the illegible signature on the back of the check with a true onemade by Gretzinger and that Gretzinger had not made the former. The People do not dispute thatthis was error since the investigator had not been shown to be a handwriting expert. CountyCourt realized as much while the investigator was still on the stand and reversed course,sustaining the objection, striking the testimony and directing the jury to disregard it. CountyCourt gave a similar instruction in its jury charge with the consent of defense counsel and,indeed, counsel relied upon the stricken response in his closing statement to emphasize the lackof expert proof that the signature on the check was a forgery. The curative action alleviated anyprejudice under these circumstances and, accordingly, the initial error did not deprive defendantof a fair trial (see People v Santiago, 52 NY2d 865, 866 [1981]; People v Peterson, 118 AD3d1151, 1155-1156 [2014], lv denied 24 NY3d 1087 [2014]; People vHathaway, 159 AD2d 748, 751 [1990]).
Finally, defendant argues that the imposition of a jail term as part of the sentence wasinappropriate. Defendant had no prior criminal record and County Court admitted its struggle todivine an appropriate sentence, citing the "unusual" nature of the case, the effect that defendant'sincarceration might have upon her children and her "sincere" remorse at sentencing. In spite ofthese mitigating facts, County Court felt that a period of incarceration was warranted due todefendant's delay in accepting responsibility for her actions and her postverdict conduct. Ittherefore imposed a jail term of four months as part of the sentence.
"Ordinarily, we refrain from exercising our power to modify a sentence unless the [*3]sentencing court abused its discretion or extraordinarycircumstances exist warranting such a modification" (People v Ruger, 288 AD2d 686,687 [2001] [citations omitted], lv denied 97 NY2d 733 [2002]; see CPL 470.15[6] [b]; People v Wyrick, 154 AD3d1181, 1182 [2017]). In our view, the circumstances surrounding the commission of the crimeand defendant herself are extraordinary and warrant the exercise of that power. Defendant hasalready served 13 days in jail and, as a matter of discretion in the interest of justice, we reducethe jail component of her sentence to time served (see People v Becker, 71 AD3d 1372, 1372 [2010]; People vRuger, 288 AD2d at 687-688; People v Riservato, 155 AD2d 793, 793 [1989];People v Bagley, 128 AD2d 980, 981 [1987]; People v Lustgarten, 118 AD2d1033, 1034-1035 [1986]).
Clark, Mulvey, Rumsey and Pritzker, JJ., concur. Ordered that the judgment is modified, as amatter of discretion in the interest of justice, by reducing the jail sentence imposed to a term oftime served; matter remitted to the County Court of Saratoga County for further proceedingspursuant to CPL 460.50 (5); and, as so modified, affirmed.
Footnote *:This Court stayed execution ofthe judgment of conviction pending appeal and fixed bail (2017 NY Slip Op 86750[U] [2017]).