| People v Womack |
| 2017 NY Slip Op 04711 [151 AD3d 1754] |
| June 9, 2017 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, v Andrew B.Womack, Appellant. |
Leanne Lapp, Public Defender, Canandaigua (Gary Muldoon of counsel), fordefendant-appellant.
Andrew B. Womack, defendant-appellant pro se.
R. Michael Tantillo, District Attorney, Canandaigua (V. Christopher Eaggleston of counsel),for respondent.
Appeal from a judgment of the Ontario County Court (William F. Kocher, J.), rendered June25, 2014. The judgment convicted defendant, upon a jury verdict, of criminal possession of aforged instrument in the second degree and offering a false instrument for filing in the firstdegree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon a jury verdict, ofcriminal possession of a forged instrument in the second degree (Penal Law§ 170.25), and offering a false instrument for filing in the first degree(§ 175.35). Defendant failed to preserve for our review his contention in his mainbrief that he was penalized for exercising his right to a trial, "inasmuch as [he] failed to raise thatcontention at sentencing" (People vStubinger, 87 AD3d 1316, 1317 [2011], lv denied 18 NY3d 862 [2011]; see People v Pope, 141 AD3d1111, 1112 [2016], lv denied 29 NY3d 951 [2017]). In any event, that contentionlacks merit. " 'Given that the quid pro quo of the bargaining process will almostnecessarily involve offers to moderate sentences that ordinarily would be greater, it is also to beanticipated that sentences handed out after trial may be more severe than those proposed inconnection with a plea' " (People v Martinez, 26 NY3d 196, 200 [2015]). Here, contrary todefendant's contention, "[t]here is no evidence that defendant was given the lengthier sentencesolely as a punishment for exercising his right to a trial" (People v Aikey, 94 AD3d 1485, 1486 [2012], lv denied 19NY3d 956 [2012] [internal quotation marks omitted]; see Pope, 141 AD3d at 1112). Wereject defendant's challenge in his main brief to the severity of the sentence.
In his pro se supplemental brief, defendant contends that the evidence is legally insufficientto establish two elements of the criminal possession of a forged instrument count, i.e., that heacted with knowledge that the instrument was forged and "with intent to defraud, deceive orinjure another" (Penal Law § 170.25; see People v Rodriguez, 17 NY3d 486, 490 [2011]). In his motionfor a trial order of dismissal, defendant contended only that the evidence is legally insufficient toestablish that he acted with the requisite knowledge, and he therefore failed to preserve for ourreview his contention with respect to the element of intent (see People v Gray, 86 NY2d10, 19 [1995]). In any event, that contention lacks merit. It is well settled that intent may" 'be inferred from the defendant's conduct and the surrounding circumstances' "(People v Bracey, 41 NY2d 296, 301 [1977], rearg denied 41 NY2d 1010 [1977];see Rodriguez, 17 NY3d at 489). Here, viewing the evidence, as we must, in the lightmost favorable to the People (see People v Contes, 60 NY2d 620, 621 [1983]), weconclude that the evidence is legally sufficient with respect to the element of intent (seegenerally Rodriguez, 17 NY3d at 489-491).
Furthermore, with respect to defendant's challenge to the sufficiency of the evidenceregarding the element of knowledge, it is well settled that "[g]uilty knowledge of forgery may beshown circumstantially by conduct and events" (People v Johnson, 65 NY2d 556, 561[1985], rearg denied 66 NY2d 759 [1985]). Here, we conclude that "the jury. . . had a sufficient evidentiary basis upon which to find defendant's knowledge ofthe forged character of the possessed instrument beyond a reasonable doubt" (id.; see People v Hold, 101 AD3d1692, 1693 [2012], lv denied 21 NY3d 1016 [2013]). Thus, we conclude that theevidence is legally sufficient to support the conviction (see generally People v Bleakley,69 NY2d 490, 495 [1987]). Furthermore, contrary to the contention of defendant in his pro sesupplemental brief, viewing the evidence in light of the elements of the crime of criminalpossession of a forged instrument in the second degree as charged to the jury (see People v Danielson, 9 NY3d342, 349 [2007]), we conclude that the verdict with respect to that count is not against theweight of the evidence (see generally Bleakley, 69 NY2d at 495).
Defendant also failed to preserve for our review his contention in his pro se supplementalbrief that he was deprived of a fair trial by prosecutorial misconduct on summation because he"failed to object to any of the remarks by the prosecutor during summation" (People v Simmons, 133 AD3d1275, 1277 [2015], lv denied 27 NY3d 1006 [2016]). In any event, defendant'scontention lacks merit. The prosecutor did not improperly vouch for the credibility of aprosecution witness on summation, because "[a]n argument by counsel on summation, based onthe record evidence and reasonable inferences drawn therefrom, that his or her witnesses havetestified truthfully is not vouching for their credibility" (People v Keels, 128 AD3d 1444, 1446 [2015], lv denied 26NY3d 969 [2015]; see People v Bailey, 58 NY2d 272, 277 [1983]). Furthermore, theprosecutor's remarks were "a fair response" to defense counsel's summation, inasmuch as defensecounsel's entire summation was an attack on the credibility of that prosecution witness(Simmons, 133 AD3d at 1278; see People v Halm, 81 NY2d 819, 821 [1993]).Present—Whalen, P.J., Smith, Carni, Curran and Scudder, JJ.