| People v Rodriguez |
| 2010 NY Slip Op 01833 [71 AD3d 450] |
| March 9, 2010 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v IsidroRodriguez, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Deborah L. Morse of counsel), forrespondent.
Judgment, Supreme Court, New York County (Edward J. McLaughlin, J.), renderedFebruary 27, 2008, convicting defendant, after a jury trial, of four counts of criminal possessionof a forged instrument in the second degree, and sentencing him, as a second felony offender, toconcurrent terms of 3½ to 7 years, unanimously affirmed.
In March 2007, a detective was assigned to investigate an unspecified crime in his precinct.He interviewed the complainant who identified "Devine Perez" as a suspect and provided aphotograph of Perez and Perez's telephone number. The detective called the number and theperson who answered identified himself as Perez and stated that he was in Connecticut andwould not be able to return to New York to speak with the detective.
On March 19, 2007, the detective apprehended the suspect he was looking for anddetermined that his actual name was Isidro Rodriguez, the defendant. The detective explainedthat he had received information as to where the suspect might be in Manhattan and, as he wasdriving to the location, with the suspect's photograph in hand, he spotted defendant, whom herecognized as the suspect, and they made eye contact with each other. The detective got out ofhis car and followed defendant, who turned several times and looked back at the detective. Thedetective then stopped defendant, who was wearing a tan corduroy suit, and arrested him for thecrime he had been investigating.
In a search incident to the arrest, the detective recovered from defendant's walletidentification in his true name, Isidro Rodriguez. From defendant's pocket, the detectiverecovered a New York State driver's license, a nondriver New York State Department of MotorVehicles identification card, a Social Security card, and a permanent resident card, each of whichwas in the name "Louis D. Amadou." Upon examination, the detective determined each of thedocuments in Amadou's name to be fake. The Social Security card had no photograph on it, butthe other documents bore pictures of defendant wearing a tan corduroy suit jacket. In addition,the detective recovered a number of nearly identical loose photographs of defendant wearing atan corduroy jacket, which were sized to fit identification cards.
During pedigree questioning, defendant said that his name was "Isidro Pedro Rodriguez."[*2]During the ride to central booking, defendant volunteeredthat he was "worried about the IDs that were found in his pocket." A redacted version of a lettersent by defendant to the court prior to trial was introduced into evidence in which defendantadmitted that upon searching him "the detectives retrieved my wallet consisting or containing ofa forged driver's license, New York State identification card, Social Security Card as well as aforged INS card." Defendant also asked in the letter that the court intervene and allow him totake a guilty plea.
A person commits the crime of criminal possession of a forged instrument in the seconddegree "when, with knowledge that it is forged and with intent to defraud, deceive or injureanother, he utters or possesses any forged instrument of a kind specified in section 170.10"(Penal Law § 170.25). "Knowledge and intent are two separate elements that must each beproven beyond a reasonable doubt by the People" and "knowledge alone is not sufficient to hold[a] defendant criminally liable for possessing a forged instrument" (People v Bailey, 13 NY3d 67, 71,72 [2009] [rejecting the argument that "the requisite intent for possessing a forged instrumentcan be drawn from defendant's presence in a shopping district, his (knowing) possession ofcounterfeit bills, and his larcenous intent"]; see also People v Brunson, 66 AD3d 594 [2009]).
In the case before us, only the element of intent is at issue. Intent "is the product of theinvisible operation of [the] mind" (People v Samuels, 99 NY2d 20, 24 [2002] [internalquotation marks and citation omitted]). As such, direct proof is rarely available and the requisiteproof may be circumstantial (see People v Sanchez, 86 NY2d 27, 32-33 [1995]). While adefendant's intent must be specific to the crime, the specific intent required for possession of aforged instrument is a state of mind that may "be inferred from the act itself . . . [or]from the defendant's conduct and the surrounding circumstances" (People v Bracey, 41NY2d 296, 301 [1977] [internal quotation marks and citation omitted]; see People vBarnes, 50 NY2d 375, 381 [1980]; People v Dallas, 46 AD3d 489, 491 [2007], lv denied 10NY3d 809 [2008]; see also People v Tunstall, 278 AD2d 585, 586-587 [2000], lvdenied 96 NY2d 788 [2001]). Further, the intent to defraud or deceive need not be targetedat any specific person; a general intent to defraud suffices and the statute does not require thatthe defendant actually attempt to use the forged documents (see People v Dallas, 46AD3d at 491; see also People vWellington, 41 AD3d 517 [2007], lv denied 9 NY3d 883 [2007]).
Applying these principles, legally sufficient evidence was presented at trial from which thejury could rationally infer that defendant possessed the forged identification cards with the intentto defraud, deceive or injure another.
First, the identity cards recovered were undisputedly fakes and served no purpose other thanto establish the identity of the holder. Because the need for such proof arises only when thebearer seeks to obtain some privilege, right, benefit or entitlement, the jurors could rationallyconclude that there was no reason for defendant to knowingly possess four false identitydocuments unless he intended to present then as real, i.e., to defraud or deceive another (seePeople v Dallas, 46 AD3d at 491 ["only conceivable purpose" for possession of "a set ofdocuments creating two different identities for the same person" was that "they would be passedoff as the genuine articles in order to deceive or defraud anyone to whom they were presented,and there would be no reason for anyone to buy them without planning to use them in thatmanner"]).
Second, it is highly significant on the issue of intent that three of the four concededly fakeidentification cards bore photographs of defendant wearing what appeared to be the same [*3]corduroy jacket that he was wearing on the day he was arrested, asdid the four additional loose photographs, sized to fit identification cards, recovered fromdefendant's pocket. From this, the jury could rationally conclude that defendant had beenactively involved in the fabrication of the fake identification cards, which he intended to use forsome deceptive purpose (see People v Colon, 306 AD2d 213, 214 [2003]).
Lastly, the jury could rationally conclude that defendant had a motive to create a falseidentity for the specific purpose of evading law enforcement authorities in connection with theDevine Perez investigation. This may be inferred from the detective's testimony that hetelephoned the suspect known to him as Perez and advised him that he wanted to speak to him,and that he apprehended the suspect he was looking for and determined that his actual name wasIsidro Rodriguez, the defendant. That defendant knew that the police were looking for him isfurther supported by the detective's testimony that when he spotted the suspect, the pair madeeye contact, and the suspect repeatedly looked back at the detective as he walked away.
Thus, viewing the totality of these circumstances, which distinguish this matter fromPeople v Brunson (66 AD3d at 595), it was reasonable for the jury to conclude that therewas no other logical explanation for defendant's possession of the four identification cards,except to defraud, deceive or injure others.
People v Bailey (13 NY3d67 [2009], supra), does not mandate a different conclusion. Although the detectivein this case did not see defendant present any of the identification cards to any person or publicauthority and had no information that defendant had ever done so, Bailey does not makethe actual use of the forged instrument a prerequisite to a finding of deceitful intent. Themajority in Bailey distinguished Bracey and Dallas on the ground thatthe criminal intent in those cases was specific to the crime committed, whereas the onlyreasonable inference to be drawn in Bailey was that the defendant's conduct wascommon to larceny, a crime completely unrelated to possession of a forged instrument.However, the Court of Appeals did not abrogate the holdings of Bracey or Dallasthat intent may be inferred and that the statute does not require that the defendant actuallyattempt to use the forged documents in order to prove an intent to defraud, deceive or injure.Indeed, to require defendant to actually use or attempt to use the forged instrument would byjudicial action alter the elements of the legislatively enacted crime, which requires only that withthe requisite knowledge and intent, a defendant "utters or possesses any forged instrument of akind specified in section 170.10" (Penal Law § 170.25).
Taken as a whole, the court's main and supplemental charges conveyed the proper standardsand properly instructed the jury that the People had the burden to prove beyond a reasonabledoubt that the statutorily required intent to defraud, deceive or injure had to coincide withdefendant's possession of the fraudulent documents (see People v Fields, 87 NY2d 821,823 [1995]). Given the court's repeated statements that the People had to prove that defendantpossessed the requisite intent at the time of the possession, we find no reasonable possibility thatthe jury could have misunderstood the court's use of the words "if needs be" or "if the [*4]opportunity arose" as reducing or relieving the People of theirobligation to prove the intent element of the charge. Concur—Andrias, J.P., Sweeny,Nardelli, Catterson and DeGrasse, JJ.