| People v McFarlane |
| 2009 NY Slip Op 05391 [63 AD3d 634] |
| June 30, 2009 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Leroy McFarlane, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Martin J. Foncello of counsel), forrespondent.
Judgment, Supreme Court, New York County (Roger S. Hayes, J.), rendered June 26, 2007,convicting defendant, after a jury trial, of criminal possession of a forged instrument in thesecond degree (ten counts), loitering, and harassment in the second degree, and sentencing himto an aggregate term of 2 to 4 years, unanimously modified, as a matter of discretion in theinterest of justice, to the extent of vacating the conviction of criminal possession of a forgedinstrument in the second degree under the first count of the indictment and dismissing that count,and otherwise affirmed.
Defendant did not preserve his challenges to the sufficiency of the evidence, and we declineto review them in the interest of justice. As an alternative holding, we also reject them on themerits. As determined in People v Mattocks (12 NY3d 326 [2009], affg 51 AD3d301 [2008]), a MetroCard bent across its magnetic strip so as to obliterate the encoded data ofthe value remaining on the card falls within the statutory definition of a forged instrument.Although bending a MetroCard with a zero value does not always result in a card that allows anextra ride, the People were not required to establish that the alteration was successful. By way ofanalogy, a falsely altered check would still be a forgery even if the alteration were so unskillfulas to be unlikely to fool anyone. Furthermore, viewing the evidence in light of the court's chargeto the jury, we find that the verdict was not against the weight of the evidence (see People vDanielson, 9 NY3d 342, 348-349 [2007]).
The People concede that the first count should be dismissed because, unlike the other countsinvolving value-based MetroCards, this count involved an expired, time-based, unlimited-rideMetroCard, and there was no evidence that it had been altered in a way that would evade its timelimitation.[*2]
We have considered and rejected defendant's ineffectiveassistance claim. Concur—Tom, J.P., Mazzarelli, Saxe, Nardelli and Buckley, JJ.