| People v Silberzweig |
| 2009 NY Slip Op 00417 [58 AD3d 762] |
| January 20, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Matthew Silberzweig, Appellant. |
—[*1] Daniel M. Donovan, Jr., District Attorney, Staten Island, N.Y. (Morrie I. Kleinbart and AnneGrady of counsel), for respondent.
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 forgedinstrument 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 seconddegree based upon his presentation of an expired used car dealer's license, from which theexpiration date had been removed, while attempting to purchase a vehicle at a used car auctionwithout 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 legallysufficient 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 independentreview 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 againstthe weight of the evidence (see People vRomero, 7 NY3d 633 [2006]).
The defendant correctly observes that "[a]n essential element of the offense of criminalpossession [*2]of a forged instrument is knowledge by thedefendant 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 ofa forged instrument cannot, of itself, establish a presumption that [the] defendant had knowledgeof the forged nature of the instrument" (People v Johnson, 65 NY2d at 561), the factremains that "[g]uilty knowledge of forgery may be shown circumstantially by conduct andevents" (People v Johnson, 65 NY2d at 561). At the trial of this matter, the jury waspresented with evidence that the defendant was the secretary of Halsey Transport Corp., a usedcar dealer, and that he was aware that in order to purchase used vehicles at auction withoutpaying sales tax, he was required to present, inter alia, a valid used car dealer's license issued bythe New York State Department of Motor Vehicles. There also was evidence that the defendantwas an experienced purchaser at used car auctions, having participated with his father, thepresident of Halsey Transport Corp., in more than 100 such purchases, and having made suchpurchases 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 withthe auction process, with the paperwork which had to be presented during each purchase, andwith the way a valid dealer's license should look. Finally, the proof demonstrated that on August5, 2004 the defendant presented the license for Halsey Transport Corp. in connection with hisattempt to purchase a used vehicle at auction without paying sales tax thereon, that said licensehad expired in January 2004, that the expiration date had been obliterated from the license whichhe presented, and that the defendant subsequently made telephone calls requesting the return ofthat document following its confiscation by the auction authorities.
The foregoing facts, which were established through credible and consistent testimony aswell as documentary evidence, constituted persuasive circumstantial proof that the defendantknew the license had been altered at the time he presented it. Accordingly, we cannot say on thisrecord that the verdict convicting him of criminal possession of a forged instrument in thesecond degree was against the weight of the evidence. While the defendant offered the testimonyof his father which sought to minimize the defendant's knowledge of and involvement in thecorporation's business, that testimony merely presented a credibility issue for determination bythe jury, and we discern no basis to disturb the jury's resolution of that issue in favor of theprosecution. Mastro, J.P., Angiolillo, and Carni, JJ., concur.
Eng, J. (dissenting and voting to reverse the judgment, on the facts, to dismiss theindictment, and to remit the matter to the Supreme Court, Richmond County, for the purpose ofentering an order in its discretion pursuant to CPL 160.50, with the following memorandum): Idisagree with my colleagues' conclusion that the circumstantial evidence in this case wassufficiently persuasive to prove that the defendant knowingly possessed a forged instrument, andbelieve that his conviction should be reversed upon the ground that it was against the weight ofthe evidence.
The evidence presented at trial demonstrated that the defendant is a New York CitySanitation Department employee who helps his father operate a used car business. Licensed usedcar dealers who possess valid business certificates issued by the New York State Department ofMotor Vehicles (hereinafter the DMV) are permitted to purchase used cars at City of New Yorkauctions without having [*3]to pay sales tax. The businesscertificate issued to Halsey Transport Corp. (hereinafter Halsey), the dealership operated by thedefendant's father, expired in January 2004. However, approximately eight months later, thedefendant attended a city auction and attempted to purchase a used car on Halsey's behalfwithout paying sales tax by presenting a business certificate which had been altered to remove itsexpiration date. For this act, the defendant was charged, inter alia, with criminal possession of aforged instrument in the second degree.
At trial the prosecution relied primarily upon the testimony of Lieutenant John Schwartz ofthe New York City Sheriff's Office, the officer responsible for conducting all city-wide auctionsof 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 thedefendant for "quite some time" because he came to "a lot" of auctions. The lieutenant also notedthat the defendant attended the auctions sometimes by himself and sometimes accompanied byhis 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 thatauctions are open to licensed used car dealers and to members of the general public. Althoughmembers 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 taxbecause 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 bidon a 1999 Ford. When asked at trial whether he had any interaction with the defendant onAugust 5th, Lieutenant Schwartz replied that "at subsequent auctions I mentioned to [thedefendant] that we're updating our paperwork as far as licensed used car dealers go," andrequested 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 establishthat he was purchasing the vehicle on behalf of his father's dealership, Halsey, the cashier calledLieutenant Schwartz over and asked him to take a look at the documents, which included abusiness 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 theDMV to examine and verify the document for him. He explained that he asked the DMV forassistance because he was "not familiar with the document," and the specifics of what it shouldcontain. 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 theinformation he had received, he could not allow him to purchase the vehicle without the paymentof sales tax.
The People's only other witness, an investigator employed by the DMV, briefly testified thatLieutenant Schwartz contacted her on August 5, 2004 to verify the business certificate which thedefendant had presented at the auction. She explained that the subject business certificate wasnot valid because it did not contain an expiration date, and that the business certificate issued toHalsey had actually expired in January 2004. The DMV investigator was not aware of whetheranyone had ever notified Halsey that its business certificate had expired. At the close of thePeople's case, defense counsel moved to dismiss the indictment for failure to prove a prima faciecase, arguing that the testimony of the two prosecution witnesses was insufficient to establishthat the defendant had knowledge that the business certificate had been altered. However, thetrial court reserved decision on the motion.
The defendant then called his father Michael Silberzweig to testify on his behalf.Silberzweig [*4]testified that he owned Halsey, and that he hadcontinued to file quarterly sales tax returns on the corporation's behalf through August 31, 2004.Although he listed the defendant as Halsey's secretary when he incorporated the business,Silberzweig maintained that his son was secretary in name only, and that he did all thepaperwork. Silberzwieg further testified that he was in possession of Halsey's business certificateprior to the August 5, 2004, auction, and that he handed the necessary paperwork to thedefendant prior to the auction. When asked to estimate how many times his son hadaccompanied him to auctions, Silberzweig responded "[a] hundred times? I don't know." Thedefendant and his father attended auctions together over a 10- to 12-year period, and there werealso occasions when the defendant attended auctions alone because Silberzweig was unable toaccompany him. According to Silberzweig, Halsey's business certificate had to be presented eachtime a vehicle was purchased at auction. He acknowledged that the defendant was able to viewHalsey's business certificate when they purchased auctioned vehicles together, and when askedwhether the defendant would be familiar with the way a valid certificate looked, Silberzweigreplied, "[y]es, I guess he would."
After more than eight hours of deliberation, the jury indicated that it was deadlocked, and thecourt delivered an Allen charge (see Allen v United States, 164 US 492 [1896]).Following additional deliberation and readbacks of testimony, the jury reached its verdictconvicting the defendant of criminal possession of a forged instrument in the second degree. Thedefendant renewed his motion for a trial order of dismissal, and the court indicated that it wouldtreat his motion as one to set aside the verdict, and requested written submissions. The courtsubsequently denied the defendant's motion, imposed sentence, and this appeal ensued.
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" (Penal Law § 170.25). As the majorityrecognizes, an essential element of this offense is knowledge by the defendant that theinstrument is forged (see People v Johnson, 65 NY2d 556, 560 [1985]). While courts inother jurisdictions have held that the unexplained possession of a forged instrument is in itself acircumstance from which knowledge of its falsity may be inferred, the Court of Appeals rejectedthis approach in People v Johnson (65 NY2d at 560). In explaining that such an approachwould be inconsistent with legislative intent, the Johnson court observed that "[h]ad theLegislature intended to presume knowledge of forgery upon a showing of mere possession of aforged instrument under Penal Law § 170.25, it would have so provided" (id. at561). Thus, in New York "knowledge of the forged nature of the instrument will not be imputedto a person solely by reason of possession or presentation of said instrument" (id.).Subsequent to the Court of Appeals' decision in Johnson, the Legislature enacted PenalLaw § 170.27 to expressly create a presumption that a person who possesses two or moreforged credit or debit cards possesses those cards with knowledge that they are forged, and withintent to defraud, deceive, or injure another. The Legislature's decision to narrowly tailor thepresumption to the possession of multiple credit and debit cards reinforces the conclusion thatknowledge of forgery may not be inferred from mere possession of other types of forgedinstruments, such as the business certificate at issue at bar.
On appeal the defendant contends that the prosecution failed to present legally sufficientevidence to establish that he was aware that the business certificate he presented at the August 5,2004 auction had been altered to remove the expiration date. Since the court reserved decision onthe motion for a trial order of dismissal which the defendant made at the close of the People'scase, his legal sufficiency challenge [*5]must be evaluated as ifhis motion had been made at the close of evidence (see People v Payne, 3 NY3d 266, 273 [2004]). Thus, we mustdetermine whether the totality of the evidence presented at trial, including the testimony of thedefendant's father, was sufficient to establish that the defendant had knowledge of the alterednature of the business certificate he presented at the August 2004 auction. I concur with themajority's conclusion that the evidence, when viewed in the light most favorable to theprosecution (see People v Contes, 60 NY2d 620 [1983]), was legally sufficient to allowthe jury to have rationally inferred that the defendant knowingly possessed a forged instrument.Although the prosecution presented no direct evidence that the defendant was aware that thebusiness certificate had been altered, and that he possessed it with intent to defraud or deceive,"[g]uilty knowledge of forgery may be shown circumstantially by conduct and events"(People v Johnson, 65 NY2d at 561). Affording the prosecution the benefit of everyfavorable inference that could be drawn from the evidence presented, it cannot be said that thereis no valid line of reasoning which could lead a rational person to infer that the defendantknowingly possessed a forged instrument with intent to defraud or deceive.
However, the intermediate appellate courts of this State have been granted a unique factualreview power (see CPL 470.15 [5]) and, thus, as the majority acknowledges, we have aresponsibility to conduct an independent review of the weight of the evidence. In exercising ourreview power, we must first determine whether, based upon the credible evidence presented attrial, a different result would not be unreasonable (see People v Romero, 7 NY3d 633, 643 [2006]; People vBleakley, 69 NY2d 490, 495 [1987]; People v Zephyrin, 52 AD3d 543 [2008]). If it would have beenreasonable for the factfinder to have reached a different conclusion, "then the appellate courtmust, like the trier of fact below, 'weigh the relative probative force of conflicting testimony andthe relative strength of conflicting inferences that may be drawn from the testimony' "(People v Bleakley, 69 NY2d at 495, quoting People ex rel. MacCracken v Miller,291 NY 55, 62 [1943]).
I believe that a review of the evidence presented at trial pursuant to this standarddemonstrates that the verdict of guilt was against the weight of the evidence. The People arguethat the defendant's guilty knowledge that the business certificate was altered can becircumstantially inferred from evidence that he was familiar with the appearance of suchcertificates because he regularly purchased vehicles at city auctions as a used car dealer, and hadbeen asked "numerous times" to bring in updated paperwork prior to the August 5, 2004 auction.However, the inference that the defendant was fully familiar with the required content of a DMVbusiness certificate is undermined by Lieutenant Schwartz's testimony that he himself wasunsure of "the specifics" of what a business certificate should contain, despite the fact that hewas the officer in charge of conducting used car auctions city-wide. Indeed, the lieutenant felt itnecessary to request verification of the certificate's authenticity from the DMV before denyingthe defendant the right to purchase the vehicle without the payment of sales tax. Moreover, whilethe defendant's father testified that he guessed that the defendant would be familiar with the waythat a business certificate looked because they were required to present the certificate whenpurchasing cars on behalf of Halsey, this assumption that the defendant was familiar with theusual appearance of the certificate is far from compelling proof that he was aware that a validcertificate was required to contain an expiration date. Furthermore, it is not at all clear from thelieutenant's testimony that the defendant had actually been asked to provide updated paperworkprior to the August 5th auction, or that any such request had been made "numerous times."
It is also significant to note that the record is entirely devoid of evidence that the defendantwas [*6]aware that Halsey's business certificate had expired inJanuary 2004. More importantly, no evidence was presented to establish who altered thecertificate or when that alteration took place. Indeed, it is entirely possible that the alterationcould have been made on the very day of the subject auction, shortly before the defendant wasprovided with the business certificate by his father. Moreover, as underscored by the lieutenant'stestimony, the subject alteration, which appears to have consisted merely of obliterating theexpiration date, was not of such a glaringly obvious nature as to be readily apparent upon casualinspection. In addition, while the majority points out that the defendant requested return of thealtered business certificate after the auction, I do not find this particularly persuasive proof ofguilty knowledge. While an inference can be drawn that the defendant's request for return of thebusiness certificate demonstrates consciousness of guilt, an equally strong inference can bedrawn that he requested return of the document for use at future auctions because he wasunaware that it was not genuine. In view of these deficiencies in the proof presented at trial, andthe conflicting inferences which may be drawn from the evidence presented, I cannot agree thatthe circumstantial evidence presented was sufficiently compelling to prove the defendant's guiltbeyond a reasonable doubt.