On 2 July 1982, defendant presented a check in the amount of $254.78 to a cashier employed by a Market to pay for a $30.06 bill for groceries. A New York Criminal Lawyer said the check was made payable to person-one and drawn against an account maintained by a corporation.
The check was presented with the Market’s customer check cashing card which had been issued to person-one. At the time the check was presented to the cashier, it bore the signature of person-two, as maker on behalf of the corporation, and was indorsed on the reverse side of the check in the name of person-one. In order to receive cash to return to defendant, the cashier went to the service counter where she handed the check and the check cashing card to the head cashier. The head cashier recognized the check as one for which an alert had been received by the store a few days earlier, thus, he instructed the cashier to detain defendant, and called the police and the assistant store manager. Thereafter, defendant indicated to the assistant store manager that the check was his. (Defendant repeatedly denied that this conversation with the assistant store manager ever occurred.) While the assistant store manager attempted to detain defendant, defendant left the store. The assistant store manager followed defendant out of the store and identified him to the police.
A New York Criminal Lawyer said that during trial, it was established that the instrument in question was one of a number of blank checks which had been taken from the corporation during a burglary several years prior to 1982. No person named person-two had ever worked for the corporation. Person-one testified that he had not worked at the corporation and had no knowledge regarding the check which was made payable to his order. Person-one had reported his Market customer check cashing card missing prior to defendant’s attempt to pass the check in question. Although defendant had been positively identified by the cashier and assistant store manager as the individual who attempted to pass the instrument in question, defendant, testifying on his own behalf, advanced a theory of mistaken identity.
Accordingly, defendant was convicted in Monroe County Court of criminal possession of a forged instrument in the second degree, as well as attempted grand larceny, criminal possession of stolen property and criminal impersonation. A Brooklyn Criminal Lawyer said the Appellate Division, Fourth Department, in sole reliance upon the case of People v. Green, reversed the judgment of Monroe County Court insofar as it convicted defendant of criminal possession of a forged instrument in the second degree, dismissed that count of the indictment, and otherwise affirmed the judgment.
The Facts – Case 2:
The facts here are not in dispute. Defendant was employed by a corporation from June 1981 to 8 October 1981. During this period of employment, defendant knew and worked with person-three. On 23 September 1981, person-three became seriously ill. She entered the hospital on 28 September 1981 and was released on 4 October 1981. Person-three never returned to work. On 24 September 1981, the corporation issued a payroll check to the order of person-three in the amount of $163.77. The payroll check was placed in the company safe in accordance with general practice. Defendant had access to this safe, which remained unlocked during working hours. Person-three never received the payroll check dated 24 September 1981, although another check from the safe was delivered to person-three by the company through person-three’s daughter.
On 3 October 1981, defendant entered a Liquor Store in Rochester. Defendant approached the service counter and refused the assistance offered by the store clerk, preferring to await the assistance of person-four, who was unavailable at that time. The store clerk testified that she knew defendant, as defendant had previously passed checks with insufficient funds. Defendant cashed the payroll check made payable to person-three by handing the check to person-four. The check, when presented to person-four, had already been signed in the name of person-three and bore the handwritten telephone number of the corporation. A pint bottle of vodka was purchased with the check and defendant received the change. Defendant did not testify at trial.
Accordingly, defendant was convicted, in Monroe County Court, of criminal possession of a forged instrument in the second degree. The Appellate Division, Fourth Department, also in sole reliance upon the case of People v. Green, reversed the judgment of Monroe County Court, and dismissed the indictment.
Leave to appeal in each case was granted by a judge of the herein court.
The common issue is whether or not the jury in each case had a sufficient evidentiary basis upon which to find, beyond a reasonable doubt, that defendant knowingly possessed a forged instrument.
The court’s ruling in People v. Green is not dispositive of the cases on appeal, but merely presents one set of circumstances which will not, as a matter of law, permit a finding that defendant had guilty knowledge of forgery.
Under the law, an essential element of the offense of criminal possession of a forged instrument is knowledge by the defendant that the instrument is forged. Some courts, presuming a rational relationship between the fact proved, possession, and the fact presumed, knowledge of forgery, hold that the mere unexplained possession or negotiation of a forged instrument is itself a circumstance from which knowledge of its falsity may be presumed. The court, following legislative intent, has implicitly rejected the rebuttable presumption approach toward establishing defendant’s knowledge of forgery. The mere negotiation or utterance of a forged instrument cannot, of itself, establish a presumption that defendant had knowledge of the forged nature of the instrument. Had the Legislature intended to presume knowledge of forgery upon a showing of mere possession of a forged instrument, it would have so provided.
As a rule, a New York Sex Crimes Lawyer said that guilty knowledge of forgery may be shown circumstantially by conduct and events. The moral certainty test, utilized where proof of the entire case depends upon circumstantial evidence, has no application where the circumstantial evidence relates to only one element of the offense. The only question now is whether or not defendant, in each case, had knowledge of the forged nature of the possessed instrument. Thus, viewing the totality of the evidence in a manner most favorable toward the People, the court must determine whether the jury in each case had a sufficient evidentiary basis upon which to find defendant’s knowledge of the forged character of the possessed instrument beyond a reasonable doubt.
It is well established that recent and exclusive possession of the fruits of a crime, if unexplained or falsely explained, will justify the inference that the possessor is the criminal. If a defendant is found in exclusive possession soon after the crime and there is no evidence that he may have received the contraband from an accomplice, or possession is unexplained or falsely explained, the inference may be drawn that defendant had knowledge that the possessed property was stolen. However, while the possession of the forged instrument fixes the identity of the offender, there remains the question of the nature of his or her offenses. It has been held that where varying, yet consistent, inferences of guilt may be drawn from circumstantial evidence, the jury must have some factual basis upon which to determine which guilty inference is the true one.
Here, the court finds that the verdict of guilt as to the possession of a forged instrument was supported by an adequate factual basis. The defendants in each case had knowledge of the forged nature of the instrument in their possession, beyond a reasonable doubt.
Here, in response to an inquiry from the store manager, defendant made an affirmative claim of ownership of the instrument. Upon presentment of the Market’s check cashing card with the forged check, defendant affirmatively identified himself as the payee in order to secure negotiation and concomitantly made a representation as to the genuineness of the indorsement. Thereafter, defendant falsely denied making such affirmations. Moreover, the check cashing card and the check both contained signatures which the jury could compare and from their dissimilarity impute guilty knowledge to defendant. These factors, considered with exclusive possession of the forged instrument, have been held sufficient to give rise to the inference of defendant’s knowledge of forgery.
Here, the evidence adduced at trial indicates that defendant had unrestricted access to the company safe in which person-three’s payroll check was held. All payroll checks were generally held in the company’s safe. Person-three never received this check. Defendant’s unexplained and exclusive possession of the fraudulently indorsed check shortly after the check had been stolen and the unrestricted access to the unindorsed check before person-three could receive it constitute factors upon which a jury could find how or where defendant came into possession of the forged instrument. Clearly, there is an evidentiary basis to find that defendant had control of the instrument, and that defendant had knowledge of the intended payee’s lack of opportunity or ability to personally indorse the check. Proof of how or where the instrument came into defendant’s possession is probative on the issue of defendant’s knowledge of forgery.
Accordingly, the order of the Appellate Division in each case is reversed and remitted to the Appellate Division for a consideration of the facts.
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