People v. Cunningham , 763 N.Y.S.2d 328 ( 2003 )

—Lahtinen, J.

Appeal from a judgment of the County Court of Montgomery County (Catena, J.), rendered December 12, 2001, upon a verdict convicting defendant of the crime of forgery in the second degree.

In late 1997, defendant assisted Peter Morat in setting up a business known as Herkimer Precut, Inc. Defendant acted as a consultant for Herkimer Precut and he was eventually supposed to receive a 20% interest in the company once it met certain financial obligations. Morat entrusted the company’s checkbook to defendant. Defendant was not authorized to sign checks, but Morat would frequently endorse blank checks that defendant was supposed to use to pay bills of Herkimer Precut. Upon being informed by creditors that bills were not being paid, Morat examined the company’s bank records and reportedly found unauthorized payments, some on checks he had signed in blank and some on checks with a signature he did not recognize. An investigation ensued, culminating in two indictments (No. 044-2001 [27 counts] and No. 045-2001 [4 counts]) charging defendant with one count of grand larceny in the second degree, 15 counts of forgery in the second degree and 15 counts of criminal possession of a forged instrument in the second degree. Eight counts from Indictment No. 044-2001 were dismissed on the People’s motion at trial. The jury convicted defendant of one count of forgery in the second degree from Indictment No. 045-2001, acquitted him of the other three counts in that indictment, and found no jurisdiction on the 19 counts remaining from Indictment No. 044-2001. Defendant was sentenced as a second felony offender to a term of incarceration of 3 to 6 years and now appeals.

Defendant initially contends that County Court’s Molineux ruling was improper. Evidence of prior bad acts or criminal conduct is generally not admissible to prove a defendant committed a charged crime (see People v Molineux, 168 NY 264, 293 [1901]; People v Chaney, 298 AD2d 617, 618 [2002]; People v Paige, 289 AD2d 872, 874 [2001], lv denied 97 NY2d 759 [2002]). Exceptions to the general rule include introducing the evidence to show motive, intent, absence of mistake or accident, identity, or common scheme or plan (see People v Rojas, 97 NY2d 32, 37 [2001]). If the evidence falls within an exception, the court must further determine whether the probative value outweighs the potential prejudice (see People v Blair, 90 NY2d 1003, 1004-1005 [1997]; People v Chaney, supra at 618).

The prosecution sought permission to introduce several instances of prior bad acts and criminal conduct by defendant. County Court limited the prosecution to evidence about one prior instance, where defendant had pleaded guilty in 1997 to one count of falsifying business records in the first degree. In that case, defendant had worked as a consultant and manager at a hotel, where he obtained checks signed in blank to purportedly pay bills, but, instead, made the checks out to benefit himself. In the current case, defendant asserted a “claim of right” as an affirmative defense (see Penal Law § 155.15 [1]), contested the issue of intent and suggested that he had the authority to sign the checks. Under such circumstances and particularly in light of the recognized difficulty of proving intent in forgery cases (see People v Dales, 309 NY 97, 101 [1955]), we find no error in County Court’s determination (which was accompanied by appropriate limiting instructions to the jury) that the 1997 crime was relevant to the issue of intent and that the probative value outweighed the potential for prejudice (see id.; People v Aiken, 293 AD2d 623 [2002], lv denied 98 NY2d 672 [2002]; People v Lowenstein, 203 AD2d 304, 304-305 [1994], lv denied 83 NY2d 873 [1994]; see also People v Alvino, 71 NY2d 233, 242-243 [1987]).

Next, defendant argues that County Court abused its discretion in granting the People’s motion to consolidate the two indictments (see CPL 200.20). The decision to consolidate is within the discretion of the trial court based upon the particular circumstances of each case and generally should include a weighing of “the public interest in avoiding duplicative, lengthy and expensive trials against the defendant’s interest in being protected from unfair disadvantage” (People v Lane, 56 NY2d 1, 8 [1982]; see People v Watson, 281 AD2d 691, 693 [2001], lv denied 96 NY2d 925 [2001]). Both indictments involved acts revolving around defendant’s alleged abuse of his relationship with Morat, primarily by misusing the checkbook of Herkimer Precut. While defendant alleges that the prosecution urged consolidation to attempt to circumvent a potential jurisdictional problem, it is apparent from the verdict that the jury was not confused by this issue. We conclude that defendant has not established an abuse of discretion by County Court or that he suffered an unfair disadvantage by the decision to consolidate the indictments (see People v Beverly, 277 AD2d 718, 719 [2000], lv denied 96 NY2d 780 [2001]).

Nor are we persuaded by defendant’s contention that County Court unduly restricted the cross-examination of Morat by sustaining an objection in which counsel asked Morat whether he intended to give defendant the previously agreed upon 20% interest in Herkimer Precut. While it appears that the issue was not properly preserved for review (see People v Sutherland, 280 AD2d 622, 622-623 [2001], lv denied 96 NY2d 835 [2001]; see also People v George, 67 NY2d 817, 819 [1986]), we nevertheless find that the record reveals that defense counsel was permitted to cross-examine Morat about the agreement pertaining to the 20% interest in Herkimer Precut, and the limitation placed on the scope of that cross-examination was within County Court’s discretion (see People v Sutherland, supra at 623; People v Clarke, 173 AD2d 550, 551 [1991]).

Defendant next argues that the count of the indictment upon which he was convicted failed to set forth sufficient facts. The indictment sets forth the date and place of the alleged criminal act, refers to the statute defendant was charged with violating, and incorporates allegations closely following the statutory language. An indictment that incorporates the provisions of the Penal Law allegedly violated is generally adequate (see People v Squire, 273 AD2d 706, 706-707 [2000]; People v Diaz, 233 AD2d 777, 778 [1996]). Moreover, a subsequent bill of particulars supplied additional information, and we find that the indictment and bill of particulars “provided defendant with enough detail to enable [him] to formulate a defense and to raise the constitutional bar of double jeopardy against subsequent prosecutions for the same offense” (People v Fayette, 239 AD2d 696, 697 [1997], lv denied 90 NY2d 904 [1997]).

Defendant argues as a fifth point in his brief that the verdict was not based on legally sufficient evidence and was against the weight of the evidence. His argument is premised primarily upon the fact that he apparently signed his own name to the check that formed the basis for the forgery conviction. The check was drawn on an account of Herkimer Precut and clearly stated on its face that it was a company check. There was evidence at trial that defendant used the check to pay a debt of one of his companies, falsely stating to the creditor that he owned Herkimer Precut.

“[T]he crime of forgery involves the making, altering, or completing of an instrument by someone other than the ostensible maker or drawer or an agent of the ostensible maker and drawer” and, thus, forgery generally cannot be committed by “signing one’s own name” (People v Levitan, 49 NY2d 87, 90 [1980]). There are, however, exceptions to the general rule (see id. at 90; see also People v Briggins, 50 NY2d 302, 307 [1980]). For example, a person who signs his or her own name to a check that is drawn on an account of a person with the same name, but without such person’s authority, commits forgery (see People v Barreau, 183 AD2d 904 [1992], lv denied 80 NY2d 926 [1992]; cf. Kraker v Roll, 100 AD2d 424, 430-431 [1984]). Conversely, a person who uses an alias, signs as the alias, and the alias is not, in fact, a real person, has not committed forgery (see People v Briggins, supra; cf. People v Ramirez, 168 AD2d 907 [1990], lv denied 77 NY2d 965 [1991]; People v Jackson, 139 AD2d 837 [1988], lv denied 72 NY2d 919 [1988]). In the first situation, the actual maker and ostensible maker are not the same and the ostensible maker has not authorized the signing; whereas in the second situation the actual maker and ostensible maker are, in fact, the same. Here, the ostensible maker, as indicated on the face of the check as well as defendant’s accompanying representations, was Herkimer Precut (see generally United States v Fontana, 948 F2d 796, 803 [1991] [“checks are essentially orders to pay issued to the bank by the owner of the account, who also is the maker of the check”]). Defendant affirmatively stated to the creditor that he had authority to act for Herkimer Precut when, in fact, he had no such authority, and he executed a Herkimer Precut check to pay a personal debt.

Such conduct by defendant falls within the statutory definition of forgery in the second degree, which includes a person who “falsely makes” a commercial instrument (Penal Law § 170.10; see Penal Law § 170.00 [4]). “A person ‘falsely makes’ a written instrument when he makes or draws a complete written instrument in its entirety * * * which purports to be an authentic creation of its ostensible maker or drawer, but which is not such * * * because the ostensible maker or drawer is fictitious or because, if real, he did not authorize the making or drawing thereof’ (Penal Law § 170.00 [4] [emphasis added]; see People v Levitan, 49 NY2d 87, 90-91 [1980], supra).^* Indeed, in People v Levitan (supra), the Court pointed out, with respect to the allegedly forged deed that was signed by the defendant in a corporate capacity, that “[n]o claim is made that [the defendant] was not authorized to [sign deeds] by the corporate grantors” (id. at 89). In the current case, precisely such a claim was made and proven at trial. There was evidence, amply supported by the record, establishing that Herkimer Precut was a separate entity, Herkimer Precut had a corporate checking account, defendant lacked authority to make checks for Herkimer Precut, he stated to a creditor that Herkimer Precut was his corporation, and he executed a Herkimer Precut check to pay a personal debt. Viewing this evidence in the light most favorable to the People (see People v Lynch, 95 NY2d 243, 247 [2000]), all the elements of forgery in the second degree were established. Nor does viewing the evidence in a neutral light and “weighting] the relative probative force of conflicting testimony and the relative strength of conflicting inferences” convince us that the verdict was against the weight of the evidence (People v Bleakley, 69 NY2d 490, 495 [1987] [internal quotation marks omitted]; see People v Hawes, 298 AD2d 706, 708-709 [2002]).

Finally, we are unpersuaded by defendant’s contention that the sentence was harsh and excessive. While the amount of the check involved was only $195.50, defendant was a second felony offender and, despite the recommendations by the prosecution and in the presentencing report for the maximum sentence, defendant was sentenced by County Court to less than the maximum. We find neither an abuse of discretion nor extraordinary circumstances warranting modification of the sentence (see People v Krzykowski, 293 AD2d 877, 880 [2002]).

Crew III and Peters, JJ., concur.

* The common-law crime of forgery has been supplanted in most jurisdictions by a statutorily defined crime. Several such statutes have been construed to include conduct similar to that in which defendant engaged (see People v Susalla, 392 Mich 387, 220 NW2d 405 [1974]; Filor, Bullard & Smyth v Insurance Co. of N. Am., 605 F2d 598, 603-604 [1978], cert denied 440 US 962 [1979] [interpreting, in dictum, New York’s forgery statute]; 36 Am Jur 2d, Forgery § 10, at 537 [2001 ed]; cf. United States v Fontana, supra at 803-804; Commonwealth v Williams, 391 Pa Super 389, 571 A2d 423 [1990]; Hill v Sheriff, Clark County, 95 Nev 438, 596 P2d 234 [1979]; but see State v Deutsch, 103 NM 752, 713 P2d 1008 [1985], cert denied 103 NM 740, 713 P2d 556 [1986], cert denied 476 US 1183 [1986]). It also merits noting that, in People v Smith (135 AD2d 1051 [1987]), a case involving a falsely completed document (see Penal Law § 170.00 [5]), we upheld a forgery conviction in which the defendant completed, in his own name and without authority, a traveler’s check.