| People v Smith |
| 2016 NY Slip Op 02869 [138 AD3d 1248] |
| April 14, 2016 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vMujahid Smith, Appellant. |
Torrance L. Schmitz, Vestal, for appellant.
Palmer J. Pelella, Special Prosecutor, Binghamton, for respondent.
Devine, J. Appeal from a judgment of the County Court of Broome County (Smith,J.), rendered May 21, 2014, convicting defendant following a nonjury trial of the crimesof criminal possession of a forged instrument in the second degree and conspiracy in thefifth degree.
In August 2012, Brittany Krisko attempted to negotiate a fake check drawn on theaccount of a local charity. The ensuing investigation suggested that defendant and hissignificant other, Shanika Cooper, were behind the check-cashing scheme. Defendantwas accordingly charged in an indictment with criminal possession of a forgedinstrument in the second degree and conspiracy in the fifth degree and, following a benchtrial, he was convicted as charged. County Court sentenced him, as a second felonyoffender, to an aggregate prison term of 3 to 6 years. Defendant now appeals, and weaffirm.
Defendant first points out that he "may not be convicted of any offense upon thetestimony of an accomplice unsupported by corroborative evidence tending to connect. . . defendant with the commission of such offense" and argues that thetestimony of two purported accomplices, Krisko and Yvonne Scott, was insufficientlycorroborated (CPL 60.22 [1]; see People v Sage, 23 NY3d 16, 23 [2014]).[FN1] Assuming withoutdeciding that both women [*2]were shown to beaccomplices (see People v Sage, 23 NY3d at 23-24), the corroborationrequirement is not demanding and does not require compelling proof of defendant's guilt(see People v Reome, 15NY3d 188, 191-192 [2010]; People v Godallah, 132 AD3d 1146, 1149 [2015]). Instead,the People need only come forward with evidence that "tends to connect . . .defendant with the commission of the crime in such a way as may reasonably satisfy the[trier of fact] that the accomplice[s] [are] telling the truth" (People v Reome, 15NY3d at 192 [internal quotation marks and citation omitted]).
Scott and Krisko have family connections and lived in the same house at the time ofthe offense. Scott was friendly with Cooper who, in turn, had worked for the charity.Cooper asked Krisko to cash the check because she had a bank account, and Kriskoagreed to do so upon the understanding that she and Scott would receive money in returnfor her assistance. Krisko, Scott, Cooper and defendant then drove to the bank together.It was in the car that Krisko first saw the check, which was made out to Oraine Dawkinsfor $4,800 and was apparently endorsed by him. Defendant told Krisko that Dawkinswas a friend of his and that the check came from the Federal Emergency ManagementAgency, a story that made Krisko nervous when she realized that the check was drawn onthe charity's account. Krisko watched defendant write under the endorsement and makethe check payable to her, after which she endorsed the check herself and went into thebank to deposit it. She then exchanged telephone numbers with defendant so that shecould contact him when the check cleared. The two spoke by telephone the next day, andKrisko reported that defendant "sounded irritated" that the check had not cleared yet.Krisko and Scott were contacted by a detective in the employ of the Broome CountySheriff's Office after it became clear that the check was fake. At the detective's request,one of the women called the number provided by defendant, told the man who answeredthat they had the money, and arranged a meeting at a nearby store. Krisko and Scott wentto the store at the appointed time and saw a man who, from a distance, appeared to bedefendant. They left the store and alerted investigators, who briefly detained the manbefore confirming that he was not defendant.
The People submitted a variety of proof beyond the testimony of Krisko and Scottthat tended to connect defendant to the charged offenses and gave reason to believe thattheir accounts were accurate. For example, shortly before the events at issue, the charityhad issued Cooper a check with the account information contained on the forged check,and that check had never been cashed. Defendant made statements to investigators,admitted into evidence, in which he confirmed that he had traveled to the bank with thethree other women on the day in question. The detective who dealt with Krisko and Scotttestified and detailed the events surrounding the meeting at the store.[FN2] Dawkins also testified atthe trial, stating that he had never seen the check before and had not signed it. Dawkinsstated that he had been incarcerated for several years and knew defendant from whenthey were jailed together in 2009, and denied knowing Cooper. He further provided amotive for defendant to falsely implicate him in the forgery scheme, namely, that the twohad a falling out and were no longer on speaking terms. In our view, the foregoing"sufficiently connected defendant to the commission of the crimes to satisfy thecorroboration requirement of CPL 60.22 (1)" (People v Giguere, 261 AD2d 941,941[*3][1999], lv denied 93 NY2d 1018 [1999];see People v Shelby, 111 AD2d 1038, 1039 [1985], lv denied 66 NY2d618 [1985]).
Defendant lastly argues that the verdict was against the weight of the evidence and,as such, we "independently 'weigh conflicting testimony, review any rational inferencesthat may be drawn from the evidence and evaluate the strength of such conclusions'. . . , and endeavor to determine 'whether [County Court] was justified infinding the defendant guilty beyond a reasonable doubt' " (People v Simmons, 135 AD3d1193, 1195 [2016], quoting People v Danielson, 9 NY3d 342, 348 [2007]). The checkwas indisputably forged, and defendant only asserts that the People failed to demonstratethat he was aware of that fact. That being said, defendant took the lead in convincingKrisko to cash a forged check, and his girlfriend had recently obtained the accountinformation replicated on that check. The forged check was made out to and purportedlysigned by an incarcerated man whom defendant knew and disliked, and defendantthereafter acted as the point of contact for the efforts to collect the proceeds. "Guiltyknowledge of forgery may be shown circumstantially by conduct and events" and,according deference to the determination of County Court that the foregoing proof wascredible, we find that the verdict was supported by the weight of the evidence (Peoplev Johnson, 65 NY2d 556, 561 [1985]; see People v Rebollo, 107 AD3d 1059, 1060-1061 [2013];People v Martinez, 105 AD2d 873, 874 [1984]).
Peters, P.J., Garry and Rose, JJ., concur. Ordered that the judgment is affirmed.
Footnote 1:County Court rejecteddefendant's contentions in this regard, but it is unclear whether the court determined thatone or both of the witnesses were not accomplices, or that the People had satisfied thecorroboration requirement.
Footnote 2:The detective was out ofthe country at the time of trial and, upon the People's successful application, underwent aconditional examination prior to trial (see CPL art 660). Inasmuch as defendantconsented to the conditional examination of the detective, he will not now be heard tocomplain of it (see e.g. People vRhodes, 91 AD3d 1185, 1187 [2012], lv denied 19 NY3d 966 [2012]).