| People v Quinn |
| 2013 NY Slip Op 00861 [103 AD3d 1258] |
| February 8, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, vDemario S. Quinn, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (David A. Heraty of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Michael L. D'Amico, J.),rendered October 6, 2010. The judgment convicted defendant, upon a nonjury verdict, ofgrand larceny in the third degree, falsifying business records in the first degree (twocounts), grand larceny in the fourth degree and offering a false instrument for filing inthe first degree (two counts).
It is hereby ordered that the judgment so appealed from is unanimously modified as amatter of discretion in the interest of justice by reversing that part convicting defendantof offering a false instrument for filing in the first degree under count eight of theindictment and dismissing that count of the indictment and as modified the judgment isaffirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon a nonjuryverdict, of one count each of grand larceny in the third degree (Penal Law §155.35 [1]) and grand larceny in the fourth degree (§ 155.30 [1]), and two countseach of falsifying business records in the first degree (§ 175.10) and offering afalse instrument for filing in the first degree (§ 175.35). At the outset, we note thatdefendant failed to preserve for our review his contention that counts seven and eight ofthe indictment, charging him with offering a false instrument for filing, are multiplicitous(see CPL 470.05 [2]). We nevertheless exercise our power to review thatcontention as a matter of discretion in the interest of justice (see CPL 470.15 [6][a]) and, as the People correctly concede, we conclude that defendant's contention hasmerit. An indictment "is multiplicitous when a single offense is charged in more than onecount" (People v Alonzo,16 NY3d 267, 269 [2011]) and, here, those counts are multiplicitous because theyare based on the same instrument and that instrument was offered for filing only once.We therefore modify the judgment accordingly.
Defendant failed to preserve for our review his contention that the evidence is legallyinsufficient to support the conviction of offering a false instrument for filing under countseven of the indictment because in his motion for a trial order of dismissal he assertedonly that there was no showing that a false instrument was filed (see People vGray, 86 NY2d 10, 19 [1995]). In any event, that contention is without merit because"there is [a] valid line of reasoning and permissible inferences which could lead arational person to the conclusion reached by [the factfinder] on the basis of the evidenceat trial" (People v Bleakley, 69 NY2d 490, 495 [1987]). [*2]Moreover, we reject defendant's further contentions that theverdict is against the weight of the evidence insofar as he was found guilty of offering afalse instrument for filing in the first degree under count seven and grand larceny in thefourth degree under count six. Viewing the evidence in light of the elements of thosecrimes in this nonjury trial (seePeople v Danielson, 9 NY3d 342, 349 [2007]), we conclude that the verdict isnot against the weight of the evidence (see generally Bleakley, 69 NY2d at 495).We have considered defendant's remaining contentions and conclude that none requiresreversal or further modification of the judgment. Present—Scudder, P.J., Fahey,Carni, Lindley and Sconiers, JJ.