Summary
In Green, we held that there was insufficient proof, as a matter of law, to sustain the conviction of defendant for criminal possession of a forged instrument.
Summary of this case from People v. JohnsonOpinion
Argued February 13, 1981
Decided March 26, 1981
Appeal from the Appellate Division of the Supreme Court in the Fourth Judicial Department, FREDERICK M. MARSHALL, J.
Joseph B. Mistrett and Rose H. Sconiers for appellant.
Edward C. Cosgrove, District Attorney (Joseph A. Matteliano of counsel), for respondent.
MEMORANDUM.
The order of the Appellate Division should be modified, defendant's conviction for criminal possession of a forged instrument and sentence thereon vacated, and Count I of the indictment dismissed.
While there was evidence in the record to support defendant's conviction of petit larceny, there is insufficient proof, as a matter of law, to sustain the jury's verdict of guilty of criminal possession of a forged instrument. An element of this latter crime is that the defendant have possession of a forged instrument "with knowledge that it is forged" (Penal Law, § 170.25). There was proof that the check was unindorsed when it was stolen from its owner; there was proof that it bore a forged indorsement when defendant delivered it to his accomplice six days later; and the People stipulated that the indorsement was not in defendant's handwriting. There was no proof, however, that defendant stole the check from its owner, or of how or where it came into his possession (other than that he must have obtained it prior to his delivery of it to his accomplice). There was no proof as to who had had the check after it was stolen before defendant acquired it or that the indorsement had not already been forged when it came into his hands. Proof of statements made by defendant to his accomplice and earlier to an acquaintance, as well as other evidence, was sufficient to support a finding that defendant knew that the check had been stolen. Any finding that he also knew that it was forged could have been premised on no more than speculation.
We have examined defendant's other contentions relevant to his conviction for petit larceny and find them to be without merit.
Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER concur.
Order modified in accordance with the memorandum herein and, as so modified, affirmed.