| People v Davis |
| 2015 NY Slip Op 03447 [127 AD3d 614] |
| April 28, 2015 |
| Appellate Division, First Department |
[*1](April 28, 2015)
| The People of the State of New York,Respondent, v Melvin Davis, Appellant. |
Cahill Gordon & Reindel LLP, New York (Frederick W. Vaughan of counsel),and Seymour W. James, Jr., The Legal Aid Society, New York (David Crow of counsel),for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Philip Morrow of counsel), forrespondent.
Judgment, Supreme Court, New York County (Charles H. Solomon, J.), renderedJanuary 15, 2013, convicting defendant, after a jury trial, of four counts of criminalpossession of a forged instrument in the second degree, and sentencing him, as a secondfelony offender, to concurrent terms of 3 to 6 years, unanimously affirmed.
Defendant's claim that the evidence was legally insufficient to convict him ofsecond-degree criminal possession of a forged instrument is unpreserved, and we declineto review it in the interest of justice. As an alternate holding, we reject the claim on themerits. The evidence was legally sufficient to support the convictions of second-degreecriminal possession of a forged instrument under Penal Law § 170.25,which requires proof of possession of a forged instrument of a kind specified in PenalLaw § 170.10. The counterfeit sporting event tickets in defendant'spossession constituted instruments that "evidence, create, transfer, terminate or otherwiseaffect a legal right, interest, obligation or status" (Penal Law § 170.10 [1];see People v Lewis, 50AD3d 595 [1st Dept 2008]). A ticket to an event is the actual instrument, andnormally the sole document, that grants the bearer a license to attend the event.
The court properly exercised its discretion in receiving evidence of defendant'sconvictions for prior similar crimes, because its probative value outweighed its potentialfor prejudice, which the court minimized by way of thorough limiting instructions. Giventhe defense theory that defendant had no knowledge that the tickets he possessed werecounterfeit, evidence of defendant's prior convictions for possessing counterfeit ticketswas highly probative of his intent and absence of mistake (see People v Alvino,71 NY2d 233, 242 [1987]). We do not find that the quantity of evidence admitted wasexcessive. It was clear from the outset of the trial that, regardless of what evidence thePeople introduced, the principal, if not the only issue in the case would be whetherdefendant knew the tickets were forgeries.
Although, at a charge conference, defense counsel raised some concerns about thecourt's anticipated interested witness charge, his remarks were insufficiently specific topreserve the arguments defendant makes on appeal (see People v Wilson, 93 AD3d 483, 484 [1st Dept2012], lv denied 19 NY3d 978 [2012]), and we decline to review these claims inthe interest of justice. As an alternative holding, we reject them on the merits. The court'sinterested witness instruction was not constitutionally deficient in any respect (see People v Blake, 39 AD3d402, [*2]403 [1st Dept 2007], lv denied 9NY3d 873 [2007]; see also Reagan v United States, 157 US 301, 305-311[1895]).
We perceive no basis for reducing the sentence. Concur—Gonzalez, P.J.,Mazzarelli, Renwick and Gische, JJ.