| People v Cuevas |
| 2016 NY Slip Op 04468 [140 AD3d 1313] |
| June 9, 2016 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Hector Cuevas, Appellant. |
Law Office of Teresi & Little, Albany (Gennaro Savastano of Weitz &Luxenberg, New York City, of counsel), for appellant.
P. David Soares, District Attorney, Albany (Michael C. Wetmore of counsel), forrespondent.
Egan Jr., J. Appeal from a judgment of the County Court of Albany County (Herrick,J.), rendered April 11, 2014, upon a verdict convicting defendant of the crimes ofrobbery in the third degree, criminal possession of stolen property in the fourth degree(two counts) and forgery in the second degree.
During the early morning hours of March 24, 2013, the victim had her purse stolenby a male assailant as she was walking in the vicinity of Madison Avenue and PartridgeStreet in the City of Albany. Later that morning, an individual—subsequentlyidentified as defendant—used the victim's credit card to make purchases at anearby Price Chopper supermarket and at a Mobil Xtramart convenience store located onNew Scotland Avenue. The purchase at the supermarket did not require a signature, butthe purchase at the convenience store did. In connection with the latter transaction, thecashier at the convenience store asked defendant to produce identification; defendantprovided a non-photo temporary driver's license, and the cashier wrote defendant'sdriver's license number on the store's copy of the receipt.
A short time later, members of the Albany Police Department interviewed the victim,reviewed video surveillance footage at the stores and ran the driver's license numberappearing [*2]on the credit card receipt.[FN1] After a certain detective,who was familiar with defendant, identified defendant from one of the surveillancevideos as the person involved in the transactions at the supermarket and the conveniencestore, a police bulletin was issued indicating that officers should be on the lookout fordefendant. The bulletin, which provided a physical description of defendant and hisvehicle and recited defendant's criminal history, indicated that defendant, who was onprobation, was wanted both in connection with the underlying robbery and on anoutstanding bench warrant issued by Albany City Court. In response to this bulletin, auniformed patrol officer encountered defendant and brought him to the station forquestioning, at which time defendant made certain incriminating statements.
After testifying before the grand jury, defendant was indicted and charged withrobbery in the third degree, criminal possession of stolen property in the fourth degree(two counts) and forgery in the second degree. Following the denial of his suppressionmotion, the trial proceeded in defendant's absence and defendant was convicted ascharged. County Court thereafter sentenced defendant to concurrent prison terms of2
Preliminarily, we reject defendant's assertion that the police lacked probable causefor his arrest. "A police officer is entitled to act on the strength of a radio bulletin or atelephone or teletype alert from a fellow officer or department and to assume itsreliability" (People v Lypka, 36 NY2d 210, 213 [1975] [citations omitted];accord People v Rosario, 78 NY2d 583, 588 [1991], cert denied 502 US1109 [1992]; People v Hummer, 228 AD2d 783, 785 [1996], lv denied 88NY2d 1021 [1996]). This rule "applie[s] whether the communication was betweensuperior or fellow officers within the same department, different agencies or agencies atdifferent levels within a [s]tate and between officials in different [s]tates as well asbetween [f]ederal and [s]tate or local authorities" (People v Rosario, 78 NY2d at588). An officer acting upon "transmitted information [is] justified in doing so becausethe officer or department furnishing that information presumptively possesses therequisite probable cause which justifies the warrantless arrest" (id.; see Peoplev Hummer, 228 AD2d at 785; People v Pegram, 203 AD2d 391, 391 [1994]).Hence, the officer in receipt of the transmitted information need not possess "personalknowledge sufficient to establish probable cause" (People v Ramirez-Portoreal,88 NY2d 99, 113 [1996]). Where, as here, a challenge is made to the warrantless action,"the presumption of probable cause disappears and it becomes incumbent upon thePeople to establish that the officer or agency imparting the information . . .in fact possessed the probable cause to act" (People v Rosario, 78 NY2d at 588;see People v Hummer, 228 AD2d at 785; People v Ramsey, 140 AD2d638, 638 [1988], lv denied 72 NY2d 923 [1988]).
Based upon our review of the testimony offered at the suppression hearing, whichdetailed the investigative efforts undertaken to identify defendant as the perpetrator, weare satisfied that there was probable cause to issue the subject bulletin, thereby justifyingthe uniformed officer's reliance upon such information in apprehending defendant(see People v Hall, 208 AD2d 1044, 1045 [1994]). To the extent that there issome dispute as to whether defendant [*3]was picked upon the outstanding bench warrant and thereafter questioned regarding the subject robbery(see generally People vClarke, 5 AD3d 807, 810 [2004], lv denied 2 NY3d 797 [2004];People v Cypriano, 73 AD2d 902, 903 [1980]) or was apprehended based uponthe information contained in the bulletin relative to the robbery itself, this issue need notdetain us as the record as a whole demonstrates that there was probable cause toapprehend and arrest defendant.
Defendant, as so limited by his brief, next contends that the verdict convicting him offorgery in the second degree is against the weight of the evidence. Again, we disagree.Insofar as is relevant here, "[a] person is guilty of forgery in the second degree when,with intent to defraud, deceive or injure another, he [or she] falsely makes, completes oralters a written instrument which is or purports to be, or which is calculated to become orto represent if completed . . . [a] . . . credit card. . . or other instrument which does or may evidence, create, transfer,terminate or otherwise affect a legal right, interest, obligation or status" (Penal Law§ 170.10 [1]; seePeople v Martin, 116 AD3d 1166, 1166 [2014], lv denied 23 NY3d1039 [2014]). "[A] necessary element of the crime of forgery is proof that the defendantsigned another's name without that person's authorization" (People v Friedman, 14 AD3d713, 713 [2005], lv denied 5 NY3d 788 [2005]; see People vLevitan, 49 NY2d 87, 90-91 [1980]; People v Maldonado, 119 AD3d 610, 611 [2014], lvgranted 25 NY3d 1167 [2015]; People v Asai, 66 AD3d 1138, 1139-1140 [2009]). As tothe issue of intent, it is well settled that "[i]ntent to defraud or deceive may be showncircumstantially and may be inferred from a defendant's actions and surroundingcircumstances" (People v Martin, 116 AD3d at 1166 [internal quotation marksand citation omitted]; see Peoplev Kocsis, 137 AD3d 1476, 1478-1479 [2016]; People v Bickley, 99 AD3d1113, 1113-1114 [2012], lv denied 20 NY3d 1009 [2013]).
Here, the count charging defendant with forgery in the second degree pertained tothe credit card transaction at the Mobil Xtramart convenience store. In this regard, thereis no dispute that defendant made this particular purchase. Indeed, defendantadmitted—during the course of his grand jury testimony (read into the trial recordby the People)—to using the credit card at issue, which he knew was not his, tobuy a carton of cigarettes at the convenience store. There also is no question that thevictim did not give defendant—or anyone else, for that matter—permissionto use her stolen credit card to make this purchase. Hence, the issues distill to whether, bysigning for this credit card transaction, defendant acted with the requisite intent andfalsely "mad[e], complete[d] or alter[ed] a written instrument" (Penal Law§ 170.10 [1]) as those terms are defined by Penal Law§ 170.00.
According to defendant, he was given what proved to be the victim's credit card by afriend; this friend, in turn, purportedly gave him permission to use the credit card to buycigarettes at the convenience store. Defendant claimed that he did not look at the nameprinted on the card, nor was he aware that the card, which defendant believed belongedto either his friend or his friend's girlfriend, was stolen. When asked for identification inconnection with this transaction, defendant provided only a non-photo temporary driver'slicense; when the cashier requested an alternate form of identification, defendant claimedthat he did not have any, but promised the cashier that he would return later with hisphoto identification. The clerk testified that defendant did not return as promised, and thecredit card receipt in the record contains an illegible signature—a signature thatbears no resemblance to defendant's signature as it appears on the waiver of immunitythat he signed prior to testifying before the grand jury.
In addition to the foregoing, the jury also heard from Jeffrey Butler, who testifiedthat he encountered defendant at approximately 7:00 a.m. on the morning of March 24,2013 at the [*4]intersection of First Street and HenryJohnson Boulevard in the City of Albany. According to Butler, who had prior dealingswith defendant, defendant approached him and offered him the use of what defendantdescribed as his girlfriend's credit card in exchange for a quantity of crack cocaine.Specifically, Butler testified that defendant said, "Yo, I got a credit card, I take you toWalmart, get you a couple cartons of Newports and we'll work out a deal." Butler agreedbut, when the pair arrived at the local Walmart, defendant "started fidgeting real bad,"prompting Butler to advise defendant, "Yo, you don't need to go into Walmart lookinglike that. It's too early in the morning. Give me the card. I'll go in there." When Butlerattempted to make the agreed-upon purchase, the credit card was declined and, whenButler emerged from the store, defendant, who had remained outside in his vehicle, wasgone.
Defendant argues that the proof adduced at trial implies that he completed therelevant credit card transaction in his own name and, hence, no forgery occurred (see People v Zeller, 122 AD3d1081, 1082-1083 [2014]; People v Morehouse, 109 AD3d 1022, 1023 [2013];People v Asai, 66 AD3d at 1139-1140). However, the jury reasonably couldconclude—based upon, among other things, defendant's evolving story as to thetrue owner of the credit card, the non-photo identification that defendant tendered inconnection with the subject transaction, the illegible signature that defendant scrawled onthe resulting receipt generated in connection therewith and his subsequent attempt totrade the use of the credit card for drugs—that defendant acted with the requisiteintent and, further, falsely executed the credit card transaction in a manner designed todeceive the cashier into believing that he was the authorized purchaser. Thus, "while adifferent verdict would not have been unreasonable, viewing the evidence in a neutrallight and giving due deference to the jury's credibility determinations, we cannot say thatthe jury failed to accord the evidence the weight that it deserved" (People v Hawkins, 130 AD3d1298, 1303 [2015] [internal quotation marks, brackets and citation omitted], lvdenied 26 NY3d 968 [2015]).
We do, however, agree that County Court should have granted defendant's challengefor cause with respect to prospective juror No. 15. Pursuant to CPL 270.20 (1) (b), aparty may challenge a prospective juror for cause if such juror "has a state of mind that islikely to preclude him [or her] from rendering an impartial verdict based upon theevidence adduced at the trial." In this regard, the Court of Appeals has made clear that "aprospective juror whose statements raise a serious doubt regarding the ability to beimpartial must be excused unless the juror states unequivocally on the record that he orshe can be fair and impartial" (People v Harris, 19 NY3d 679, 685 [2012] [internalquotation marks and citation omitted]; see People v Briskin, 125 AD3d 1113, 1117 [2015], lvdenied 25 NY3d 1069 [2015]). Accordingly, "[w]hen a prospective juror'simpartiality is in doubt, it is the court's obligation to make further inquiries and to excusethe juror if the doubt is not fully dispelled. Notably, if there is any doubt about aprospective juror's impartiality, the trial court should err on the side of excusing the juror,since at worst the court will have replaced one impartial juror with another" (People vBriskin, 125 AD3d at 1117 [internal quotation marks, brackets and citationsomitted]; see People v Izzo,104 AD3d 964, 965-966 [2013], lv denied 21 NY3d 1005 [2013]).
During the course of jury selection, prospective juror No. 15 expressed concernregarding a potential witness's prior criminal "track record." After initially indicating thathe might be influenced "greatly" by a witness's criminal record, County Court explainedto prospective juror No. 15—and the rest of the panel—that the jury couldtake into consideration a witness's prior criminal conviction in assessing whether the jurybelieved the testimony offered by that witness. When asked by County Court whether hecould follow the court's instruction on that point, prospective juror No. 15 replied, "Oh,yes, yes." Upon further inquiry by defense counsel, however, prospective juror No. 15explained that if he were to learn that defendant [*5]previously had engaged in the same or similar offenses asthose charged in the indictment, he "might be swayed" by what he would view "as acontinuous track record." When asked how such knowledge would affect his thinking,prospective juror No. 15 replied, "Negatively." Defense counsel then inquired,"Negatively towards?," in response to which prospective juror No. 15 stated, "Guilty."When defense counsel asked, "Just by virtue of a [prior] record?," the prospective jurorreplied, "Yes, of a continuous criminal record, yes." Other than County Court's generalinquiry as to the panel's ability to follow the law as charged by the court, no furtherquestioning of this juror occurred and no unequivocal assurances of impartiality wereelicited. Absent such assurances, County Court erred in denying defendant's challengefor cause as to this prospective juror. Inasmuch as defendant was forced to use aperemptory challenge to strike prospective juror No. 15 and thereafter exhausted hisperemptory challenges prior to the completion of jury selection,[FN2] this error warrants reversal of thejudgment of conviction and remittal for a new trial (see CPL 270.20 [2]; People v Greenfield, 112AD3d 1226, 1230 [2013], lv denied 23 NY3d 1037 [2014]).[FN3] Defendant's remainingcontentions, to the extent not specifically addressed, have been examined and found to belacking in merit.
McCarthy, J.P., Garry, Devine and Aarons, JJ., concur. Ordered that the judgment isreversed, on the law, and matter remitted to the County Court of Albany County for anew trial.
Footnote 1:Although theconvenience store clerk omitted the last digit of the nine-digit driver's license number,when law enforcement officials began adding a number between zero and nine to theeight digits written on the receipt, defendant's name "pop[ped] up."
Footnote 2:The People anddefendant each were allotted 10 peremptory challenges for the 12 sworn jurors who wereto be selected. During the first round of jury selection, defendant exercised seven of hisperemptory challenges, and 10 sworn jurors were seated. During the second round,defendant exercised his three remaining peremptory challenges, and County Courtthereafter seated the two remaining sworn jurors. Hence, contrary to the People'sassertion, defendant did not have any remaining peremptory challenges at the point intime that the final two jurors were seated.
Footnote 3:In light of thisconclusion, we need not consider whether County Court's denial of defendant's challengefor cause as to prospective juror No. 2 also was erroneous.