| People v Montes |
| 2019 NY Slip Op 09324 [178 AD3d 1283] |
| December 26, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Germaine Montes, Appellant. |
Carolyn B. George, Albany, for appellant, and appellant pro se.
P. David Soares, District Attorney, Albany (Emily Schultz of counsel), for respondent.
Egan Jr., J.P. Appeal from a judgment of the County Court of Albany County (Carter, J.),rendered August 1, 2018, upon a verdict convicting defendant of the crime of criminal possessionof a forged instrument in the second degree (three counts).
On April 11, 2017, defendant was charged by sealed indictment with three counts of criminalpossession of a forged instrument in the second degree based upon allegations that, on threeseparate occasions, he knowingly deposited a forged check into another individual's bankaccount. Defendant was arrested and arraigned on the indictment on November 8, 2017. Hethereafter filed an omnibus motion seeking to, among other things, dismiss the indictment forviolation of his statutory right to a speedy trial pursuant to CPL 30.30 and suppress any pretrialidentifications. Following two separate hearings, County Court denied defendant's speedy trialmotion, finding that the police had exercised due diligence in attempting to locate defendantfollowing the unsealing of his indictment, and denied the suppression of any pretrialidentifications of defendant on the ground that said identifications were merely confirmatory.Following a jury trial, defendant was convicted as charged and he was thereafter sentenced, as apredicate felony offender, to a prison term of 2 to 4 years on each count, with the sentences onthe first two counts to be served consecutively to one another and concurrently with the sentenceimposed on the third count, for a total prison term of 4 to 8 years. Defendant appeals.
Defendant initially contends that his convictions were not supported by legally sufficientevidence and were against the weight of the evidence insofar as the People failed to prove that heknowingly possessed the subject forged checks. "When conducting a legal sufficiency analysis,we view the evidence in the light most favorable to the People and evaluate whether there is anyvalid line of reasoning and permissible inferences which could lead a rational person to theconclusion reached by the jury on the basis of the evidence at trial and as a matter of law satisfythe proof and burden requirements for every element of the crime charged" (People v Glover, 160 AD3d 1203,1204 [2018] [internal quotation marks and citations omitted]). As relevant here, to be foundguilty of criminal possession of a forged instrument in the second degree, the People wererequired to prove that defendant uttered or possessed the subject forged instruments "withknowledge that [they were] forged and with intent to defraud, deceive or injure another"(see Penal Law § 170.25). To that end, "guilty knowledge of forgery may beshown circumstantially by conduct and events, and evidence of an intent to defraud or deceivemay be inferred from a defendant's actions and surrounding circumstances" (People v Gretzinger, 164 AD3d1021, 1022 [2018] [internal quotation marks, brackets and citations omitted]; see Peoplev Johnson, 65 NY2d 556, 561 [1985]).
Here, the evidence introduced at trial established that defendant approached three separateindividuals on three separate dates in November 2014, January 2015 and March 2015 andrequested that each open a bank account at a particular bank and provide him with thecorresponding account information and documentation (i.e., bank starter packet, debit card, pinnumber and/or starter checks). In return for opening the account and turning over their accountdocumentation, defendant gave each individual cash and/or gift cards and/or merchandise that hepurchased on their behalf. The bank records for each individual's account show that, shortly afterdefendant procured their account information, a forged check was deposited into each of theaccounts via an ATM deposit. In the days following each ATM deposit, a number of balanceinquiries were made on each account and, once the subject funds became accessible, a successionof ATM withdrawals and/or other large purchases and/or payments would be made from eachrespective account. Each of the three individuals testified that they had no knowledge of any suchcheck being deposited into the account and they had not personally deposited any such check, nordid they affix a signature or otherwise recognize the signature that was endorsed thereon.
A senior investigator for the bank in which all three accounts were opened reviewed the bankrecords for these accounts, as well as video surveillance footage, which established that none ofthe three individuals who opened the subject bank accounts was the same person whosubsequently made the three ATM deposits. Photographs from the ATMs where each of the threedeposits were made clearly identified defendant as the individual who made the deposits.Moreover, the date of each photograph directly corresponds with the bank records indicating thedate on which each of the subject deposits were made into the three individuals' bank accounts.Viewing the evidence in a light most favorable to the People, we find that sufficient evidencewas presented at trial from which a jury could reasonably infer that defendant knowinglyprocured the three individuals' bank account information with the intent of defrauding the subjectbank and thereafter knowingly possessed and deposited three forged checks into the subjectindividuals' accounts for the same fraudulent purpose. Accordingly, we find that the Peoplepresented legally sufficient evidence to support defendant's convictions for criminal possessionof a forged instrument in the second degree. Additionally, although another verdict would nothave been unreasonable, viewing the evidence in a neutral light and giving deference to the jury'scredibility determinations, we are satisfied that the verdict is not against the weight of theevidence (see People v Danielson, 9NY3d 342, 348 [2007]; People v Gretzinger, 164 AD3d at 1023; People v Hold, 101 AD3d 1692,1693 [2012], lv denied 21 NY3d 1016 [2013]).
We reject defendant's contention that County Court erred when it denied his statutory speedytrial motion. Inasmuch as defendant was charged with three felony counts, the People wererequired to be ready for trial within six months (see CPL 30.30 [1] [a]). "In computingthe time within which the People must be ready for trial, the court must exclude the period ofdelay resulting from the absence or unavailability of the defendant" (People v Hawkins, 130 AD3d1298, 1300 [2015] [internal quotation marks and citations omitted], lv denied 26NY3d 968 [2015]; see CPL 30.30 [4] [c] [i]). As relevant here, "[a] defendant must beconsidered absent whenever his [or her] location is unknown and he [or she] is attempting toavoid apprehension or prosecution, or his [or her] location cannot be determined by duediligence" (CPL 30.30 [4] [c] [i]; seePeople v Flagg, 30 AD3d 889, 891 [2006], lv denied 7 NY3d 848 [2006]).Importantly, "[t]he determination of whether the People have exercised due diligence in locatinga person is a mixed question of law and fact and while minimal attempts to locate a defendantand secure his or her presence in court will not satisfy the due diligence standard, the police arenot obliged to search for a defendant indefinitely as long as they exhaust all reasonableinvestigative leads as to his or her whereabouts" (People v Hawkins, 130 AD3d at 1300[internal quotation marks, brackets and citations omitted]; see People v Devino, 110 AD3d 1146, 1148-1149 [2013]).
It is undisputed that six months and 27 days elapsed between the April 11, 2017 unsealing ofdefendant's indictment and his subsequent apprehension and arraignment on November 8,2017.[FN1] The evidenceintroduced at the CPL 30.30 hearing demonstrated that the People met their burden ofestablishing that the police exercised due diligence in attempting to apprehend defendantfollowing his indictment but before his arrest. A State Police investigator testified that, uponissuance of the arrest warrant, he entered it into a statewide portal and directed a state trooper toassist him in locating defendant. The investigator and the trooper then attempted to locatedefendant at his mother's address on Morton Avenue in the City of Albany and surveilled thataddress for a period of time without success. The state trooper also spoke with both defendant'sfather and the father's ex-girlfriend and was informed that defendant did not reside at either ofthose addresses nor did they know his current whereabouts. Unable to locate defendant, in May2017, the investigator notified the Albany Crime Analysis Center and the United States MarshalsService of defendant's warrant. Throughout the summer of 2017, the assigned state troopercontinued to patrol Morton Avenue looking for defendant "[a]t least a few times a month," theinvestigator personally looked for or made inquiry into defendant's whereabouts approximately20 times and officers with the City of Albany Police Department separately checked variousaddresses and patrolled Morton Avenue at least a dozen times specifically looking fordefendant.
Notably, on July 30, 2017, Albany police responded to a fire call at the apartment ofdefendant's mother and confirmed that defendant was residing at that address. In September2017, the investigator contacted the Albany Housing Authority—which controlled thebuilding where the mother's apartment was located—to ascertain if defendant had beenseen in the area. They also staked out that location on multiple occasions in September, Octoberand November 2017, ultimately apprehending defendant on November 8, 2017 after observinghim exit the subject apartment building. Although the investigator and assigned trooper did notdocument each and every attempt that they made to find defendant during the subject timeperiod, "it cannot be said that the authorities shirked their continuing obligation of due diligence"(People v Hawkins, 130 AD3d at 1301 [internal quotation marks and citations omitted]).Accordingly, given the testimony adduced at the hearing, we find that the People sufficientlyestablished that more than 27 days of time were excludable given the reasonable efforts made bymultiple police agencies to locate defendant and, therefore, defendant's statutory right to a speedytrial was not violated (see CPL 30.30; People v Hawkins, 130 AD3d at1301).
Next, defendant contends that County Court erred when it denied his motion for a mistrial onthe ground that one of the trial jurors was grossly unqualified to serve pursuant to CPL 270.35.We disagree. Pursuant to CPL 270.35, "[i]f at any time after the trial jury has been sworn andbefore the rendition of its verdict, . . . the court finds, from facts unknown at thetime of the selection of the jury, that a juror is grossly unqualified to serve in the case or hasengaged in misconduct of a substantial nature . . . the court must discharge suchjuror" (CPL 270.35 [1]). A juror is considered grossly unqualified to serve "when it becomesobvious that [he or she] possesses a state of mind which would prevent the rendering of animpartial verdict" (People vKuzdzal, 31 NY3d 478, 483 [2018] [internal quotation marks, citation and emphasisomitted]; accord People v Reichel,110 AD3d 1356, 1358 [2013], lv denied 22 NY3d 1090 [2014]). As the trial court isin the best position to observe the jury and assess the state of mind and alleged partiality of anallegedly biased juror, its determination as to whether a juror is grossly unqualified to serve isentitled to great deference (see People v Kuzdzal, 31 NY3d at 485; People v Spencer, 29 NY3d 302,310 [2017]; People v Crider, 176AD3d 1499, 1500 [2019]).
Here, the jury commenced deliberations at approximately 3:00 p.m. on Friday, June 1, 2017and was then excused for the weekend at approximately 5:00 p.m. Jury deliberations resumed onMonday, June 4, 2017 and, at approximately 10:00 a.m., County Court received a note indicatingthat juror No. 5 "would like to talk to [the court] before the [jury rendered its] verdict." In acolloquy in chambers, in the presence of counsel and defendant, juror No. 5 thereafter indicatedthat she felt she was being "attacked" by other jurors and that she did not believe that she wasbeing "taken seriously" and that another juror had "threatened" her Friday afternoon. She furtherstated that, although she was not physically attacked, she did not "feel safe" or "comfortable"being in the jury deliberation room and did not wish to deliberate any further. Defendant movedfor a mistrial, which motion County Court denied. Following additional consultation withcounsel, County Court briefly sequestered juror No. 5 from the other jurors while it individuallyquestioned each of the other 11 jurors—in chambers, in the presence of counsel anddefendant—regarding the progress and tone of deliberations to that point.[FN2] Following this inquiry, CountyCourt brought the entire jury back into the court room and instructed the jury that deliberationswere not intended to be easy but, in conducting same, each juror had to be civil, "respect eachother's feelings" and provide "each juror an opportunity to be heard." At 11:17 a.m., the courtthen directed the jury to return to the jury room to continue deliberating.[FN3]
At approximately 1:40 p.m., CountyCourt received a note from the jury requesting a written copy of certain witness testimony and anew verdict sheet. Although County Court was discussing its response to this note, it receivedanother note from juror No. 5. The note read, in relevant part, "I will not continue to stay in thisroom when I still remain uncomfortable and not welcomed. You said in your statement that noone should be pressured into changing their opinion and I, under my conscience, cannot do sowith the people I have been selected to serve with. There will be no decision with this jury underthese circumstances." Based on juror No. 5's note, defendant renewed his motion for a mistrialand County Court again denied the motion. The court then responded to the jury's initial note byproviding it with a new verdict sheet and informed it that it could not have a written copy of therequested testimony, but could request a read-back of said testimony; the court did not addressjuror No. 5's note at that time. At 2:01 p.m., however, the court received another note from thejury indicating that deliberations were on hold pending the court's response to juror No. 5's priornote. Following additional consultation with counsel, County Court called juror No. 5 into thecourtroom, outside the presence of the other jurors, and told her that, although it appreciated thefact that jury deliberations could be uncomfortable, she could not simply stop participatingbecause the other jurors disagreed with her opinion and asked to her to "please try and. . . deliberate with your other jurors as best as you can." County Court reiteratedthat it would be okay if juror No. 5 ultimately disagreed with the rest of the jurors and that sheshould not change her mind unless she truly believed that she should. The court then directed herto return to the jury room at 2:11 p.m. and thereafter addressed the full jury panel, again statingthat the jurors were expected to "respect each other's feelings" and continue to deliberatetogether. Subsequently, at 3:11 p.m., the court received a note indicating that the jury hadreached a verdict on all three counts. Following the jury foreperson's entry of a guilty verdict asto each count, the individual jurors were polled as to each count, and all affirmatively representedthat they voted in favor of the guilty verdict on all three counts.
Upon review of the private colloquies between County Court and juror No. 5, as well as thediscussions between County Court and the other 11 jurors on the panel, we are not persuaded thatjuror No. 5 possessed a state of mind that prevented her from rendering an impartial verdict so asto deprive defendant of a fair trial (see People v Buford, 69 NY2d 290, 299 [1987]).Although juror No. 5 initially indicated that she did not wish to continue with deliberations giventhe initial contentious nature thereof and the fact she did not feel comfortable in the jury room, "adeclaration regarding emotions alone does not render a juror grossly unqualified" (People vSpencer, 29 NY3d at 311; seePeople v Marshall, 106 AD3d 1, 10 [2013], lv denied 21 NY3d 1006 [2013]; People v Haxhia, 81 AD3d 414,414 [2011], lv denied 17 NY3d 796 [2011], cert denied 565 US 1204 [2012]).After being notified of juror No. 5's concerns, County Court conducted a "probing and tactful"inquiry of both juror No. 5 and the other members of the jury, instructing them that they were torespect one another's feelings and opinions as they continued their deliberations (People vKuzdzal, 31 NY3d at 486 [internal quotation marks and citation omitted]). Notably, jurorNo. 5 did ultimately return to the jury room and did participate in further deliberations with herfellow jurors and at no point in either juror No. 5's notes or her private colloquies with the courtdid she ever indicate that she would be unable to render an impartial verdict or that she mightvote in a certain manner simply to attain a unanimous verdict. Quite the contrary, juror No. 5'ssecond note to the court specifically indicated that she would not reach a decision based solely onthe pressure that she may have felt from other jurors to do so. Following a further colloquy withCounty Court and additional instructions from the court for the jury to continue workingcollaboratively toward a verdict, upon further deliberations, a unanimous verdict was, in fact,rendered on all three counts. Moreover, upon subsequent polling of the jury, juror No. 5affirmatively indicated—on three separate occasions—that she voted in favor ofdefendant's guilt on all three counts (see People v Bailey, 258 AD2d 807, 808 [1999],lv denied 93 NY2d 1001 [1999]). Accordingly, deferring to County Court's ability toobserve the jury and assess juror No. 5's emotions, state of mind and alleged partiality, we cannotsay that County Court's denial of defendant's motions for a mistrial constituted an abuse ofdiscretion.
Defendant's remaining arguments do not require extended discussion. Defendant's challengesto the underlying grand jury proceeding were not preserved for appellate review as he did notobject or otherwise move to dismiss the indictment on the grounds presently raised on appeal (see People v Young, 100 AD3d1186, 1187 [2012], lv denied 21 NY3d 1021 [2013]; People v Yamagata,208 AD2d 1120, 1121 [1994]). Additionally, the evidence adduced at the Rodriguezhearing established a sufficient relationship between defendant and the three individuals thatopened bank accounts to support County Court's determination that their identifications ofdefendant were merely confirmatory (see People v Wakefield, 175 AD3d 158, 170-171 [2019]; People v Smith, 137 AD3d 1323,1327 [2016], lv denied 28 NY3d 974 [2016]). Lastly, defendant's contention that CountyCourt erred in admitting certain documents into evidence is without merit, as a bank employeetestified that he was familiar with the record-keeping practices of the bank and that the subjectrecords were made in the regular course of the bank's business and that it was a regular course ofsuch business to make such records (see CPLR 4518 [a]; CPL 60.10; People vKennedy, 68 NY2d 569, 579-580 [1986]; People v Gunther, 172 AD3d 1403, 1404 [2019], lv denied34 NY3d 951 [2019]).
Clark, Devine and Aarons, JJ., concur. Ordered that the judgment is affirmed, and matterremitted to the County Court of Albany County for further proceedings pursuant to CPL 460.50(5).
Footnote 1:At defendant's arraignment, thePeople declared their readiness for trial.
Footnote 2:Following County Court'sinquiry, defendant renewed his motion for a mistrial, which County Court denied.
Footnote 3:At approximately 1:17 p.m., thejury sent another note indicating that it had agreed to a verdict on one count but was deadlockedas to the remaining two counts. County Court called the jury into the courtroom and indicatedthat it was not ready to accept a partial verdict, provided the jury with a "deadlock charge" anddirected it to continue deliberating.