| People v Manges |
| 2009 NY Slip Op 08258 [67 AD3d 1328] |
| November 13, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Daniel F.Manges, Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Nicole M. Fantigrossi of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Frank P. Geraci, Jr., J.), renderedMarch 15, 2006. The judgment convicted defendant, upon a jury verdict, of criminal possessionof a forged instrument in the second degree and attempted grand larceny in the third degree.
It is hereby ordered that the judgment so appealed from is unanimously reversed on the law,the indictment is dismissed, and the matter is remitted to Monroe County Court for proceedingspursuant to CPL 470.45.
Memorandum: Defendant appeals from a judgment convicting him, upon a jury verdict, ofcriminal possession of a forged instrument in the second degree (Penal Law § 170.25) andattempted grand larceny in the third degree (§§ 110.00, 155.35). We agree withdefendant that County Court erred in admitting in evidence a printout of electronic data that wasdisplayed on a computer screen when defendant presented a check, the allegedly forgedinstrument, to a bank teller. The People failed to establish that the printout falls within thebusiness records exception to the hearsay rule (see CPLR 4518 [a]), which applies here(see CPL 60.10). The People presented no evidence that the data displayed on thecomputer screen, resulting in the printout, was entered in the regular course of business at thetime of the transaction (see CPLR 4518 [a]). Indeed, the bank teller who identified thecomputer screen printout testified that "anyone [at the bank] can sit down at a computer andenter information." Because the computer screen printout was the only evidence establishing theidentity of the purported true account owner upon which the check was drawn, we conclude thatthe evidence is legally insufficient to support the conviction (see generally People vBleakley, 69 NY2d 490, 495 [1987]). In the absence of the printout, the People failed toestablish an essential element of the crime of criminal possession of a forged instrument, i.e.,defendant's knowledge that the check presented to the bank teller was forged (see People vJohnson, 65 NY2d 556, 560 [1985], rearg denied 66 NY2d 759 [1985]; cf.People v Shabazz, 226 AD2d 290 [1996], lv denied 88 NY2d 994 [1996]) and, thus,they also failed to establish an essential element of the remaining crime of attempted grandlarceny in the third degree, i.e., that the property was stolen. Present—Smith, J.P., Centra,Fahey, Carni and Pine, JJ.