People v. Alvino , 505 N.Y.S.2d 868 ( 1986 )

— Judgment of the Supreme Court, New York County (Martin Stecher, J., at trial with a jury), rendered June 28, 1983, which convicted defendant of bribe receiving in the second degree and issuing a false certificate, is affirmed.

In the course of defendant’s trial in late April and early May 1983, the jury learned that he was employed at the Department of Motor Vehicles (DMV) as a cashier since September 10, 1982. DMV cashiers have the duty of processing and generating licenses on a computer terminal located at their station and to receive statutory fees only in payment therefor. There is a two-step procedure to obtain an amended license such as the one which became the subject of this prosecution. The applicant fills in a white portion of an application form indicating the changes to be made. This form, together with the original license, is presented to an examiner who will normally approve the amendments after submission of any necessary proof. The examiner then writes in red on the blue part of the application form noting or circling the amendments to be made and then signing it. The applicant then proceeds to a cashier who punches into the computer the information recorded in red by the examiner. The computer then generates the license and the cashier collects the appropriate fee.

An allegedly false application form was introduced into evidence as part of the People’s proof that defendant accepted a $100 bribe to issue a fraudulent amended license in the name of "Victor Lopez”. Attached to the back of this application was a duplicate license in the same name; the duplicate had a number 4 on it to indicate that this was the fourth duplicate license issued for that driver. This amendment listed three requested changes: There was a height change from 5 feet, 7 inches to 5 feet, 9 inches, a 10-year "correction” in the date of birth and a change of eye color. The examiner’s approval was limited to height and date of birth. Because of the incomplete treatment of the eye color change and an alteration in the date change, an investigator witness for the DMV testified that this might have alerted a cashier to refer the application back to an examiner or at least to consult his supervisor. The same witness conceded that there were long lines at the DMV every day and that a cashier was pressed to complete many transactions throughout the day.

The jury also heard testimony from an admitted DMV briber, Mario Falto, who was acting undercover as an informant during the pertinent time period. He testified that for a period of about 10 years his sole employment was the illegal procurement of fraudulent documents from DMV for various types of "customers” ranging from those who preferred to obtain learner’s permits without taking the preliminary test (here a $5 or $10 bribe would suffice) to fraudulent licenses and registrations (presumably for people who felt they could use a false identification). Falto described his method of operation as follows: First he would fill out an application for a duplicate license in whatever name the customer desired and then bribe an examiner to find out whether there was an already existing license on record with that name. If the name search was successful, the examiner would give Falto the motor vehicle identification number for that license and then Falto was able to obtain a duplicate license in that name. The next step required Falto to fill out an application for an amended license, requesting changes to correspond with his customer’s actual attributes such as a new height, date of birth, color of eyes, etc., and then bribe either the same or a different examiner to approve that application. He would then bribe a corrupt cashier to issue the fraudulent license.

In July 1982, Falto’s criminal activity was terminated by his arrest. To resolve his predicament, Falto agreed to cooperate and cut himself a deal with the District Attorney’s office in writing which provided, in substance, that the full extent of his cooperation would be made known in any prosecution of him. At the time of defendant’s trial, Falto had not yet been indicted for any crime. Falto denied any understanding by him that the more people he implicated, the better it would be for him, but he did admit that he knew he would have to incriminate somebody as proof of his cooperation.

The jury also learned of the events on September 10, 1982 which led to defendant’s conviction. On that day, Falto testified, after bribing the examiner with $50 to obtain the required approval for the amendments, he went to defendant’s cashier window and after receiving the amended "Lopez” license, he gave the defendant $100. This transaction was corroborated by an undercover police officer. The transaction was also corroborated by a tape recording put before the jury which is set out in full in the first footnote of the dissent. Defendant’s only responsive comment was: "Have a nice day.”

Also placed before the jury were the contents of a second tape-recorded conversation between Falto and defendant, quoted verbatim in the dissent, in which Alvino responds with the perfunctory acknowledgments ("yeah”, and "okay” twice) to a request by Falto to Alvino not to tell "Miguel” that defendant did anything for Falto. The import of this conversation, apparently, was that Falto was poaching on the "connections” of his partner in crime, one Miguel Cruz, and did not wish Cruz to know about this. Yet no knowledge by defendant of the relationship of Falto and Cruz is established by defendant’s laconic and equivocal answers. Also, the People introduced a third tape recording of a conversation between defendant and Falto, on August 2, 1982, in which Falto complains about the fact that Cruz has disappeared with $200 without taking care of some corrupt transaction and that Alvino has not seen Cruz either. Alvino indicates he can’t be helpful; Falto says that auditors are present making his work difficult; Alvino indicates that these auditors may be gone "this week or next week or whenever”; and defendant concludes the conversation by stating: "I’m gonna go out.” While these tapes demonstrate that Falto was a cooperative (if not terribly skillful) undercover operative, they are quite ambiguous with respect to any criminal involvement by defendant.

Before the People rested their case, the jury learned a good deal about Falto which, wholly apart from his role as an informer out to save his own skin by turning in others, would severely impair his credibility as a reliable witness. Falto told the jury that, prior to 1981, he had owned a driving school, but, upon separating from his family, he transferred the school to his brother to frustrate any effort by his wife to collect either maintenance or child support. He began obtaining illegal permits from the DMV while working for the owner of another driving school with Miguel Cruz, a fellow employee, as his senior partner in crime. Falto felt obliged to conceal this activity because his employer also worked with Cruz in obtaining illegal DMV documents. The employer fired Falto when he found out that the latter was invading his illegal turf.

Thereupon, Falto and Cruz continued their illicit business as partners but, as might be expected, as soon as Falto learned of Cruz’ "connections” at the DMV, he began to cut Cruz out. Presumably the "partnership” came to an abrupt and final demise when Cruz was subsequently arrested after Falto turned him in.

The dissent argues that on their direct case the People should have been limited to the foregoing evidence, and that it was error to permit the prosecution, as part of that direct case, to introduce, through Falto, evidence of 15 similar bribery transactions between Falto and defendant. While there can be no disagreement with the general principles of law so ably elucidated by our dissenting colleague, we find that this evidence of uncharged crimes was clearly admissible as proof of defendant’s corrupt intent, which is the second of the five familiar categorical exceptions barring proof of uncharged crimes found in People v Molineux (168 NY 264, 293), the seminal case in this area. It must be emphasized that the two crimes for which defendant was indicted make a corrupt intent the very essence of the offense. Bribe receiving in the second degree (Penal Law § 200.10) is defined as follows: "A public servant is guilty of bribe receiving in the second degree when he solicits, accepts or agrees to accept any benefit from another person upon an agreement or understanding that his vote, opinion, judgment, action, decision or exercise of discretion as a public servant will thereby be influenced.” (Emphasis added.)

Thus, the People, as part of their case-in-chief, were required to prove not only that Falto placed $100 in front of defendant, following which defendant issued a document, but they had to go considerably further and prove beyond a reasonable doubt that the acceptance of the $100 by defendant was "upon an agreement or understanding that his * * * action * * * as a public servant will thereby be influenced.” The uncharged crimes established this vital element, as well as to negate mistake or accident, the third Molineux exception.

If the People’s proof was limited in the manner urged by the dissent, the jury might easily find that defendant’s acceptance of the application was entirely innocent or mistaken, that there was nothing in it that he consciously knew to be false, and that the $100 came as a complete surprise to him. At the very least, on such a suppositious state of the record, defendant would be free to argue that this was simply an unlawful gratuity, a misdemeanor rather than a felony (cf. Penal Law § 200.30).

Similarly, the second crime for which defendant was indicted, issuing a false certificate (Penal Law § 175.40), also places intent at the heart of the crime. This statute reads as follows: "A person is guilty of issuing a false certificate when, being a public servant authorized by law to make or issue official certificates or other official written instruments, and with intent to defraud, deceive or injure another person, he issues such an instrument, or makes the same with intent that it be issued, knowing that it contains a false statement or false information. ” (Emphasis added.)

Here also, the need to prove both intent, and to remove the possibility that defendant did not act through negligent mistake, but rather clear knowledge that the information in the application must have been false, made evidence of the uncharged crimes admissible and absolutely necessary if the prosecution were fairly to meet its burden (People v Marrin, 205 NY 275; People v Ventimiglia, 52 NY2d 350; Matter of Brandon, 55 NY2d 206).

The Trial Judge was meticulous in assuring a fair trial to defendant, first by holding an in limine hearing on the prior crime proof outside the presence of the jury in conformity with People v Ventimiglia (supra), and then instructing the jury both in the course of the trial, and in its final charge, regarding the limited purpose for which the evidence was to be received. Thus, the jury was resolutely steered away from the "bad man” appraisal of defendant which is the central concern of the dissent. In short, under well-recognized principles, and despite the considerable proof of prior transgressions, defendant received a fair trial. Concur — Ross, Asch, Rosenberger and Wallach, JJ.