| People v Maldonado |
| 2014 NY Slip Op 04964 [119 AD3d 610] |
| July 2, 2014 |
| Appellate Division, Second Department |
[*1]
| 1 The People of the State of New York,Respondent, v Fernando Maldonado, Appellant. |
Seymour W. James, Jr., New York, N.Y. (David Crow and White & Case, LLP[Amy Boddorff, Eric Majchrzak, Sarah Melikian, and Louis O'Neill], of counsel), forappellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Monique Ferrell ofcounsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(McKay, J.), rendered May 19, 2011, convicting him of grand larceny in the first degree,attempted grand larceny in the first degree, and criminal possession of a forgedinstrument in the second degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant was convicted of grand larceny in the first degree and criminalpossession of a forged instrument in the second degree based on evidence that heexecuted and filed a deed to an apartment building in Brooklyn owned by the 242 SouthSecond Street Housing Development Fund Corporation, conveying ownership of thebuilding to himself and the corporation. In addition, the defendant was convicted ofattempted grand larceny in the first degree based upon evidence that he tried to obtain aloan secured by a mortgage on the subject building.
The defendant's argument that the evidence was legally insufficient to support hisconviction of grand larceny in the first degree is partially unpreserved for appellatereview (see CPL 470.05 [2]; People v Gordon, 110 AD3d 736, 737 [2013]). In anyevent, viewing the evidence in the light most favorable to the prosecution (see Peoplev Contes, 60 NY2d 620, 621 [1983]), we find that it was legally sufficient toestablish the defendant's guilt of grand larceny in the first degree beyond a reasonabledoubt when considered in light of the trial court's charge as given without exception (see People v Ford, 11 NY3d875, 878 [2008]; People v Sala, 95 NY2d 254, 260 [2000]). Moreover, uponthe exercise of our factual review power (see CPL 470.15 [5]), we areconstrained to weigh the evidence in light of the elements of the crime as chargedwithout objection by the defendant (see People v Johnson, 10 NY3d 875 [2008]; People v Danielson, 9 NY3d342, 349 [2007]; People vDudley, 52 AD3d 840, 841 [2008]; People v Solis, 43 AD3d 1190, 1191 [2007]). Having doneso, we are satisfied that the verdict of guilt with respect to the conviction of grandlarceny in the first degree was not against the weight of the evidence (see People v Romero, 7 NY3d633 [2006]; People v Ali, 189 AD2d 770 [1993]).
[*2] The defendant's contention that the evidence waslegally insufficient to establish his guilt of attempted grand larceny in the first degreebecause the People failed to prove that the value of the loan he attempted to obtainexceeded $1,000,000 is unpreserved for appellate review (see CPL 470.05 [2]).In any event, viewing the evidence in the light most favorable to the prosecution (seePeople v Contes, 60 NY2d at 620), we find that it was legally sufficient to establishthat the value of the loan exceeded $1,000,000, and to establish the defendant's guilt ofattempted grand larceny in the first degree beyond a reasonable doubt. Moreover, uponour independent review pursuant to CPL 470.15 (5), we are satisfied that the verdict ofguilt as to attempted grand larceny in the first degree was not against the weight of theevidence (see People v Romero, 7 NY3d at 633).
The defendant contends that the evidence was legally insufficient to support hisconviction of criminal possession of a forged instrument in the second degree because hesigned his own name to the deed, and, therefore, the deed he possessed was not forged."A person is guilty of criminal possession of a forged instrument in the second degreewhen, 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 section170.10" (Penal Law § 170.25), including a deed (see Penal Law§ 170.10 [1]). "[T]here can be a forgery only if the actor is not theostensible maker or drawer of the instrument and is not authorized by that person toeither make, complete or alter the instrument" (People v Levitan, 49 NY2d 87, 91[1980]). Contrary to the defendant's contention, viewing the evidence in the light mostfavorable to the prosecution (see People v Contes, 60 NY2d at 620), we find thatit was legally sufficient to establish his guilt of criminal possession of a forgedinstrument in the second degree beyond a reasonable doubt. Moreover, upon ourindependent review pursuant to CPL 470.15 (5), we are satisfied that the verdict of guiltas to criminal possession of a forged instrument in the second degree was not against theweight of the evidence (see People v Romero, 7 NY3d at 633). The evidenceestablished that the defendant signed the deed as the owner of the corporation, therebyfalsely assuming the identity of the owner and ostensible maker of the deed (cf.People v Levitan, 49 NY2d at 91-92; People v Ali, 189 AD2d at 770).
Viewing the record as a whole, we find that the defendant was not deprived of theeffective assistance of counsel (see People v Benevento, 91 NY2d 708, 712[1998]; People v Baldi, 54 NY2d 137, 147 [1981]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80[1982]). Skelos, J.P., Dillon, Hall and Roman, JJ., concur.