| People v Kocsis |
| 2016 NY Slip Op 02480 [137 AD3d 1476] |
| March 31, 2016 |
| Appellate Division, Third Department |
[*1](March 31, 2016)
| The People of the State of New York,Respondent, v Michael K. Kocsis, Appellant. |
John A. Cirando, Syracuse, for appellant.
Mary E. Rain, District Attorney, Canton (Ramy Louis of counsel), forrespondent.
Egan Jr., J. Appeals (1) from a judgment of the County Court of St. LawrenceCounty (Rogers, J.), rendered May 2, 2013, upon a verdict convicting defendant of thecrime of criminal possession of a forged instrument in the second degree, and (2) bypermission, from an order of said court (Richards, J.), entered December 8, 2014, whichdenied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction,without a hearing.
In the fall of 2011, defendant was hired as a worker to assist in performing certaininterior home renovations on a residence located in the Village of Massena, St. LawrenceCounty. On or about December 27, 2011, the homeowner (hereinafter the victim)discovered that a check in the amount of $125—drawn on her deceased husband'schecking account—had been cashed and the corresponding funds had beendeducted from that account, without her consent or authorization.[FN1] The victim immediatelyreported this incident to the local police and to her bank. The check, which was madepayable to cash, was cashed at the bank upon which it was drawn by Bobbie JoFrench—one of defendant's friends.
Defendant thereafter was indicted and charged with one count of criminal possessionof [*2]a forged instrument in the second degree.Following a jury trial, defendant was convicted as charged and was sentenced to a prisonterm of 1
Initially, we reject defendant's assertion that the People violated his discovery rightsby failing to timely disclose certain photographic evidence—specifically,photographs of the renovation work that were taken by the homeowner, one of which(People's exhibit No. 2) depicted defendant in the victim's home in November 2011.Although this particular photograph of defendant was received into evidence withoutobjection, defense counsel did object to the overall timeliness of the disclosure,contending that the People became aware of such photographs when the victim testifiedbefore the grand jury—an allegation that the People denied. Even assuming,without deciding, that the People failed to disclose the photographs in a timely manner,reversal is not warranted. The photographs themselves were not "exculpatory orimpeaching in nature" (People vNewland, 83 AD3d 1202, 1204 [2011], lv denied 17 NY3d 798 [2011]),and County Court (Rogers, J.) afforded defendant a meaningful opportunity tocross-examine the victim as to the contents of the photographs and subpoena additionalwitnesses on this point if necessary (see generally People v Hines, 132 AD3d 1385, 1386[2015], lv denied 26 NY3d 1109 [2016]; People v Astacio, 105 AD3d 1394, 1395 [2013], lvdenied 22 NY3d 1154 [2014]). Finally, upon reviewing the record as a whole, "wefind that there is no reasonable possibility that the verdict would have been different hadthe relevant [photographs] been disclosed in a timely manner" (People v Dawson, 110 AD3d1350, 1352 [2013], lv denied 23 NY3d 1035 [2014]; see People v Anderson, 118AD3d 1138, 1142 [2014], lv denied 24 NY3d 1117 [2015]).
As for defendant's challenges to the legal sufficiency[FN3] and weight of the evidence, "[a] personis guilty of criminal possession of a forged instrument in the second degree when, withknowledge that it is forged and with intent to defraud, deceive or injure another, he [orshe] utters or possesses any forged instrument of a kind specified in [Penal Law§ 170.10]" (Penal Law § 170.25), including a "commercialinstrument" (Penal Law § 170.10 [1]). "Guilty knowledge of forgery maybe shown circumstantially by conduct and events, and evidence of an intent to defraud ordeceive may be inferred from a defendant's actions and surrounding circumstances" (People v Rebollo, 107 AD3d1059, 1060-1061 [2013] [internal quotation marks and citations omitted]).
Here, there is no question that the subject check was forged, as the alleged maker ofthe check died three months prior to purportedly signing that instrument. With respect tothe circumstances surrounding the check's execution, the victim testified that she did notgive defendant—or anyone else, for that matter—permission to take thecheck from the rolltop desk where it was stored, to sign the check on behalf of herdeceased husband or to cash it and retain the proceeds. The victim further testified thatdefendant worked at her residence "almost on a [*3]dailybasis," during which time he had access to the rolltop desk at issue. Defendant's boss,brother and fellow coworker—the other primary individuals working at thevictim's residence—each testified that they did not take a check from the victim'sresidence, nor did they fill out a check belonging to the victim and/or her deceasedhusband. Finally, French testified that defendant gave her the subject check, told her itwas his paycheck and asked that she cash it on his behalf, which she thereafterdid—giving all of the proceeds to defendant.[FN4] While defendant now challengesFrench's veracity, her criminal history was fully explored on cross-examination, and thejury had every opportunity to assess her demeanor and credibility. Viewing this evidencein the light most favorable to the People, the evidence was legally sufficient to supportthe verdict. Further, while a different result would not have been unreasonable, uponviewing the evidence in a neutral light and deferring to the jury's credibility assessments,we do not find the verdict to be against the weight of the evidence.
As for defendant's remaining arguments, we reject defendant's assertion that CountyCourt abused its discretion in fashioning its Sandoval compromise, as our reviewof the record reveals that the court properly balanced defendant's right to a fair trialagainst the People's right to impeach defendant's credibility based upon his priorconvictions—had he elected to testify (see People v Bateman, 124 AD3d 983, 985 [2015], lvdenied 25 NY3d 949 [2015]). Although County Court indeed neglected todefinitively rule as to whether the People would be permitted to inquire into one ofdefendant's prior convictions—an omission that defendant now contendsinfluenced his decision as to whether he should testify—we find any error in thisregard to be harmless (seePeople v Grant, 7 NY3d 421, 424-425 [2006]).
Nor are we persuaded that County Court erred in failing to provide the requestedaccomplice instruction to the jury. Pursuant to CPL 60.22, an accomplice is defined as "awitness in a criminal action who, according to evidence adduced in such action, mayreasonably be considered to have participated in . . . [t]he offense charged;or . . . [a]n offense based upon the same or some of the same facts orconduct which constitute the offense charged" (CPL 60.22 [2] [a], [b]; accord People v Sage, 23NY3d 16, 23-24 [2014]). "Thus, to be an accomplice for corroboration purposes, thewitness must somehow be criminally implicated and potentially subject to prosecutionfor the conduct or factual transaction related to the crimes for which the defendant is ontrial" (People v Anderson, 118 AD3d at 1143 [internal quotation marks andcitations omitted]). In this regard, "[t]he determination of accomplice status depends onwhether there is a showing that the witness took part in the preparation or perpetration ofthe crime with the intent to assist therein, or that the witness counseled, induced orencouraged the crime" (People v Adams, 307 AD2d 475, 476 [2003] [internalquotation marks and citations omitted], lv denied 1 NY3d 566 [2003]), and it isthe defendant who bears the burden of proof on this point (see People v Sage, 23NY3d at 24).
Here, although French indeed was arrested and initially charged for her admitted rolein cashing the check, the proof adduced at trial fell short of establishing that she actedwith the intent to assist defendant in his perpetration of the charged crime or that sheotherwise counseled, induced or encouraged defendant to engage in such conduct.Notably, French testified—without [*4]contradiction—that defendant presented her with thecheck (completed in its entirety), told her that it was his paycheck and asked her to cash itfor him. French further testified that she "thought it was okay" because the check bore anotation indicating that it was payment for "labor" and she knew that defendant was "aconstruction worker." French also stated that she did not know that the check was forged,that she trusted defendant and that—once the check was cashed—sheturned all of the resulting proceeds over to defendant. Finally, although French had priordrug-related convictions, the proof as a whole failed to establish her role as defendant'saccomplice (see People v Anderson, 118 AD3d at 1143-1144). Accordingly,County Court did not err in denying defendant's request to charge on this point.
As for defendant's claim of prosecutorial misconduct, the record reflects that, duringthe course of the trial, certain references were made—either by the AssistantDistrict Attorney (hereinafter ADA) presenting the case or the victim—to "checks"in the plural, thereby suggesting that defendant had stolen more than one check from thevictim. Although such references certainly were improper (given that defendant had beencharged with a single count of criminal possession of a forged instrument in the seconddegree), defendant objected to only one of the now challenged comments and, inresponse to this singular objection, the ADA was admonished and immediately clarifiedfor the jury that he "misspoke," stating, "I said checks, it's [a] check." Under thesecircumstances, we do not find that defendant was deprived of a fair trial in thisregard.
We do, however, find merit to defendant's argument that he was deprived of a fairtrial based upon the guidance and instructions provided by County Court to the ADApresenting the case relative to the rules of evidence. To be sure, a trial judge plays a"vital role in clarifying confusing testimony and facilitating the orderly and expeditiousprogress of the trial" (People v Yut Wai Tom, 53 NY2d 44, 57 [1981]; see People v Ojeda, 118 AD3d919, 919 [2014], lv denied 24 NY3d 1087 [2014]; People v Adams, 117 AD3d104, 108-109 [2014], lv denied 24 NY3d 1000 [2014]). To that end, thecourt may "raise matters on its own initiative in order to elicit significant facts [or to]clarify or enlighten an issue" (People v Lupo, 92 AD3d 1136, 1138 [2012] [internalquotation marks and citation omitted]). Such power, however, "should be exercisedsparingly" (People v Yut Wai Tom, 53 NY2d at 57), as "it is the function of thejudge to protect the record at trial, not to make it" (Matter of Kyle FF., 85 AD3d 1463, 1464 [2011] [internalquotation marks and citation omitted]).
During the course of the trial, the ADA in question demonstrated difficulty in layingthe proper foundation for the admission into evidence of certain photographs and bankrecords and in utilizing a particular document to refresh a witness's recollection. Inresponse, County Court conducted various sidebars, during the course of which the court,among other things, explained the nature of defense counsel's objections, outlined thequestions that the ADA needed to ask of the testifying witnesses, referred the ADA to acertain evidentiary treatise and afforded him a recess in order to consult and review theappropriate section thereof. Without further belaboring the point, suffice it to say that ourreview of the record confirms what County Court itself acknowledged—namely,that in attempting to "explain[ ] some of the law" and in an effort to avoid portrayingdefense counsel as "obstructionist," it "explained one thing too many, in all fairness." AsCounty Court's assistance in this regard—althoughwell-intentioned—arguably created the perception that the People were receivingan unfair tactical advantage, we are persuaded that this matter should be remitted for anew trial (compare People v Tucker, 140 AD2d 887, 891-892 [1988], lvdenied 72 NY2d 913 [1988]). Defendant's remaining contentions, including hisassertion that he was denied the effective assistance of counsel and that County Court(Richards, J.) erred in denying his CPL article 440 motion without a hearing, have beenexamined and found to be lacking in merit.
[*5] Garry, J.P., Lynch, Devine and Clark, JJ., concur. Ordered that the judgment isreversed, on the law, and matter remitted to the County Court of St. Lawrence County fora new trial. Ordered that the order is affirmed.
Footnote 1:The victim allowed thischecking account to remain open following her husband's death in September 2011 topermit certain automatic payments from that account to continue.
Footnote 2:Defendant's motionseeking bail and a stay pending appeal was denied by a Justice of this Court.
Footnote 3:Contrary to the People'sassertion, defendant's motions for a trial order of dismissal—made at the close ofthe People's case and again at the close of all proof—were sufficiently specific topreserve this argument for our review.
Footnote 4:Although the check inquestion bore a notation indicating that it was payment for "labor," defendant's bosstestified that his subcontractors customarily were paid in cash and, to the extent that suchpayment would have been in the form of a check, it would have been via a check drawnon his personal checking account.