| People v Martin |
| 2014 NY Slip Op 02469 [116 AD3d 1166] |
| April 10, 2014 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v TerryMartin, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Vincent Stark of counsel), forrespondent.
McCarthy, J. Appeal from a judgment of the County Court of Albany County(Breslin, J.), rendered November 13, 2007, upon a verdict convicting defendant of thecrime of forgery in the second degree (two counts).
In October 2006, defendant twice used a credit card in the name of Arthur Wolfe,who was—until his death in 2003—the domestic partner of defendant'sfiancee.[FN*] Based on these actions, a jury found defendant guilty of two counts of forgery in thesecond degree. County Court sentenced him, as a second felony offender, to two terms of3 to 6 years in prison, to be served concurrently to each other but consecutively to aseparate four-year sentence on a recent driving while intoxicated conviction. Defendantappeals.
The evidence was legally sufficient and the verdict was not against the weight of theevidence. "A person is guilty of forgery in the second degree when, with intent todefraud, deceive or injure another, he [or she] falsely makes, completes or alters a writteninstrument which is or purports to be, or which is calculated to become or to represent ifcompleted . . . [a] credit card . . . or other instrument whichdoes or may evidence, create, transfer, terminate or otherwise affect a legal right, interest,obligation or status" (Penal Law § 170.10 [1]; see People v [*2]Le Grand, 81 AD2d 945, 946 [1981], lv denied54 NY2d 757 [1981]). Employees of the establishment where the credit card was used, aswell as a video from the night in question, identified defendant as the person who twicetendered the card and signed the two receipts. The only real element at issue was whetherdefendant signed the credit card receipts with "intent to defraud, deceive or injure" thebank that issued the credit card. Intent to defraud or deceive may be showncircumstantially and "may be inferred from a defendant's actions and surroundingcircumstances" (People vRebollo, 107 AD3d 1059, 1060-1061 [2013]; see People v Hughes, 111AD3d 1170, 1172 [2013]). One employee testified that defendant introduced himselfas Artie Wolfe, and defendant signed the name Arthur Wolfe on the receipts, rather thanusing his own name. Viewing the evidence in the light most favorable to the People, andgiving them the benefit of all permissible inferences, this evidence was legally sufficientto support the convictions (see People v Bleakley, 69 NY2d 490, 495 [1987];People v Rebollo, 107 AD3d at 1061).
A bank employee testified that defendant's wife was listed by Wolfe as an authorizeduser of the credit card, and the bill was always paid, but the bank should have beennotified when Wolfe died and the account would have been closed. Defendant's wifetestified that she was an authorized user, she gave defendant permission to use the card,they always paid the bill, the bank got interest when they did not pay in full, and shethought that she could continue to use the credit card until Wolfe's estate was closed,which had not yet occurred. She also testified that she did not tell defendant what nameto sign, she did not get a credit card in her own name because her credit was not "theworld's greatest," she received the benefit of Wolfe's credit, she and defendant wereattempting to start their own construction business, and defendant did not have a bankaccount or a credit card in his own name. Although it would not have been unreasonablefor the jury to find that defendant thought he was allowed to use the credit card as long ashe paid the bill, we cannot say that the verdict was against the weight of the evidence, asit was reasonable for the jury to conclude that defendant intended to deceive the bankinto continuing to offer credit to a dead man, which defendant would then use, whendefendant and his wife were not credit worthy and were possibly unable to obtain theirown line of credit (comparePeople v Lydon, 33 AD3d 335, 336 [2006], lv denied 7 NY3d 926[2006]).
Defendant has not established that he was deprived of the effective assistance ofcounsel. Although the failure to make a speedy trial motion may be sufficiently egregiousto deprive a defendant of meaningful representation, there must be proof that the motionwould have been successful (seePeople v Devino, 110 AD3d 1146, 1147-1148 [2013]). Based on the record, itdoes not appear that defendant could have met his burden of establishing sufficientpostreadiness delays that were attributable to the People (see People v Sydlar, 106 AD3d1368, 1369 [2013], lv dismissed 21 NY3d 1046 [2013]; People v Pope, 96 AD3d1231, 1233 [2012], lv denied 20 NY3d 1064 [2013]). Defendant alsocontends that counsel should have requested a mistake-of-fact jury charge, but thecharges concerning intent and the People's burden to prove the elements beyond areasonable doubt adequately conveyed the law and the appropriate burdens so as to coverthe defense theory regarding defendant's lack of intent (see People v Williams, 81NY2d 303, 317 [1993]; Peoplev Salamone, 89 AD3d 961, 962 [2011], lv denied 18 NY3d 928 [2012]).Thus, counsel was not ineffective for failing to make a speedy trial motion that would nothave been successful or for failing to request a mistake-of-fact charge.
Considering defendant's escalating criminal history and refusal to acknowledge anywrongdoing, the sentence was not harsh or excessive (see People v Rebollo, 107AD3d at 1062).[*3]
Lahtinen, J.P., Garry and Egan Jr., JJ., concur.Ordered that the judgment is affirmed.
Footnote *: Because defendant hadmarried his fiancee by the time of his trial in 2007, we will hereafter refer to her as hiswife.