People v. Ramirez

Judgment affirmed. Memorandum: Defense counsel waived any right defendant may have had to a pretrial hearing on the issue of the execution of the search warrant when he agreed with the trial court that no hearing was necessary on that issue.

The evidence was sufficient to convict defendant of scheme to defraud in the first degree by scheming to defraud 10 or more persons. In addition to the evidence, which defendant admits was sufficient to prove that defendant schemed to defraud three entities, there was sufficient evidence from which the jury could reasonably infer that defendant acted in concert with his wife to scheme to defraud seven additional entities.

We reject defendant’s contention that the evidence was insufficient to convict him of forgery in the second degree because, in using an assumed name, he did nothing to suggest that the assumed name was the name of someone else (see, People v Levitan, 49 NY2d 87, 90). Here, the name used by defendant on his credit application was the name of a real person who had a good credit rating and the record shows that this person did not give defendant authority to use his name. Under these circumstances, the instrument made by defendant, purported "to be an authentic creation of its ostensible maker or drawer, but [was] not such * * * because the ostensible maker or drawer * * * did not authorize the making or drawing thereof’ (Penal Law § 170.00 [4]). Insofar as the case of People v Jackson (139 AD2d 837, lv denied 72 NY2d 919) suggests a contrary result, we decline to follow it.

All concur, except Callahan, J. P., who dissents and votes to hold the case, reserve decision and remit the matter for a hearing, in the following memorandum.