| People v Rice |
| 2013 NY Slip Op 02946 [105 AD3d 1443] |
| April 26, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v MariaA. Rice, Appellant. |
—[*1] Sandra Doorley, District Attorney, Rochester (Erin Tubbs of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Patricia D. Marks, J.),rendered June 28, 2006. The judgment convicted defendant, upon a jury verdict, ofcriminal possession of a forged instrument in the second degree (two counts) andattempted petit larceny.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment that convicted her following a jury trialof two counts of criminal possession of a forged instrument in the second degree (PenalLaw § 170.25) and one count of attempted petit larceny (§§ 110.00,155.25), defendant contends that the conviction of the two counts of criminal possessionof a forged instrument is not supported by legally sufficient evidence. At the close of thePeople's case, defense counsel moved for a trial order of dismissal on the ground that thePeople had failed to establish that defendant knew that the traveler's checks she hadattempted to cash were counterfeit. That motion was denied, and defendant then testifiedon her own behalf. Defendant concedes that defense counsel did not renew the motion atthe close of defendant's proof, and her contention that the issue nevertheless is preservedfor our review is without merit (see People v Lane, 7 NY3d 888, 889 [2006]; cf. People v Payne, 3 NY3d266, 273 [2004], rearg denied 3 NY3d 767 [2004]).
Because defendant also challenges the weight of the evidence supporting the verdicton those two counts, we nevertheless address the evidence adduced concerning theelement of knowledge (seegenerally People v Stepney, 93 AD3d 1297, 1298 [2012], lv denied 19NY3d 968 [2012]). Contrary to defendant's contention, the People presented sufficientevidence establishing that defendant knew the traveler's checks were counterfeit and,viewing the evidence in light of the elements of the crime of criminal possession of aforged instrument as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), weconclude that the verdict is not against the weight of the evidence (see generallyPeople v Bleakley, 69 NY2d 490, 495 [1987]). As part of their direct case, thePeople introduced in evidence defendant's testimony before the grand jury. Moreover,defendant testified at trial and, inasmuch as she "elected to give h[er] version of the[events] and thereby put h[er] credibility in issue, we may unquestionably consider theplausibility of h[er] [testimony] in deciding whether the [jury] was justified in rejecting[it]" (People v Potenza, 92 AD2d 21, 29 [1983]). We conclude that defendant'stestimony was "patently incredible" (People v [*2]Quinones, 302 AD2d 210, 210 [2003], lvdenied 100 NY2d 541 [2003]). Indeed, "[t]he chain of circumstances surroundingdefendant's receipt of [the] fraudulent [traveler's checks] from [a stranger in Nigeria],. . . and defendant's use of the [checks] supported the inference thatdefendant knew [they were] forged . . . Furthermore, defendant's [grandjury and] trial testimony explaining [her] acquisition of the [checks] was incredible, andthis testimony contained material admissions that further supported the inference ofknowledge" (People vCredel, 99 AD3d 541, 541 [2012], lv denied 20 NY3d 1060 [2013]; see People v Price, 16 AD3d323, 323 [2005], lv denied 5 NY3d 767 [2005]). Present—Scudder,P.J., Peradotto, Lindley and Martoche, JJ.