People v. Ashner

190 A.D.2d 238, 597 N.Y.S.2d 975, 1993 N.Y. App. Div. LEXIS 4881
CourtAppellate Division of the Supreme Court of the State of New York
DecidedMay 17, 1993
StatusPublished
Cited by69 cases

This text of 190 A.D.2d 238 (People v. Ashner) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Ashner, 190 A.D.2d 238, 597 N.Y.S.2d 975, 1993 N.Y. App. Div. LEXIS 4881 (N.Y. Ct. App. 1993).

Opinion

OPINION OF THE COURT

COPERTINO, J.

The defendant was indicted and charged with one count of grand larceny in the third degree (Penal Law § 155.35) and 25 counts of forgery in the second degree (Penal Law § 170.10 [1]). All charges stemmed from a complaint made by her former employer, a bank where she had been employed as a teller. She was accused of making or completing 18 withdrawal slips between November 14, 1988 and September 28, 1989, without authorization, enabling her to steal approximately $30,000 belonging to one of the bank’s customers. Eighteen of the forgery counts concerned the customer’s signature on these slips, and seven had to do with the initials of the defendant’s [240]*240supervisors. After a jury trial, the defendant was found guilty of grand larceny in the third degree and 23 counts of forgery. The principal question before us concerns a limitation on cross-examination. We must decide whether the court improperly limited the defendant’s constitutional right to confront the witnesses the State brought against her by precluding the use of questions which suggested that one witness might have had a motive to commit the crimes with which the defendant was charged. We hold that it did, and that a new trial must result. Moreover, upon a review of the defendant’s claim that the evidence was legally insufficient to support the judgment of conviction, we dismiss three counts of the indictment outright.

A bank customer who owned several certificate of deposit (hereinafter CD) accounts, came to the bank’s Carmel branch in November 1989 in order to update her bank books. Though her CD’s had not yet reached maturity, the bank was to post the interest which had accrued to that time. During this routine procedure, the customer complained that money was missing and that she had not withdrawn any. On instructions from the Assistant Manager, the employee who had been assisting this customer retrieved the 18 withdrawal slips for the period in question, and the customer said she had not signed them. The teller number stamped on each (except one which contained none) belonged to the defendant.

The bank’s internal investigation proceeded from that point and ultimately led to the defendant’s indictment. At trial, it was the bank’s Assistant Manager who gave the most extensive testimony as to both bank procedures and the defendant’s activities relevant to the charges. The witness testified as to how CD withdrawals were supposed to be made, including how premature automatic withdrawal penalties were usually assessed. In this case, automatic penalties should have been assessed, but were not. However, the penalty could be waived with the approval of a supervisor. The witness also testified as to how a teller gained access to the bank’s computer system, which involved the use of a teller password. She described how any withdrawal of over $1,000 had to be verified by a supervisor to insure that the transaction as set forth on the slip had occurred, and that this verification was indicated by the supervisor’s initials on the document. Shown exhibits 4, 6, 9, 10, 11, and 18 — all withdrawal slips bearing the defendant’s teller number and indicating withdrawals of $1,000 or more— she denied that her initials, which were found on each with[241]*241drawal slip, were made by her, and also stated that she did not give the defendant permission to use her initials. The 18 unauthorized withdrawals totalled $29,700.

The witness also identified copies of bank printouts concerning the defendant’s personal savings and checking accounts with the bank, and deposit slips related thereto. Several 1989 cash deposits were for $1,000 or more. She testified that the defendant’s salary was $263 per week, and, referring to bank attendance records, testified that only the defendant and one other teller had been present and working on all of the days the withdrawals were made.

On cross-examination, the defense elicited certain facts in the defendant’s favor. The bank’s time records seemed to indicate that the defendant was not "logged on” to the system at the times two of the withdrawal slips indicated the withdrawals were made, and, given the fact that the bank’s computer clock ran on military time, two other withdrawals had occurred between 1:00 a.m. and 2:00 a.m. The witness also admitted that on a day she stated she was absent from work, the log-on/log-off records indicated that her computer had been in use, and that she had signed these records.

When the questioning turned to the Assistant Manager’s personal life, the trial court intervened. The defense counsel’s question "Did you have any unusual expenditures of funds between November of 1988 and the end of 1989?” drew an objection from the prosecutor as well as a request for an offer of proof. The jury and the witness were excused from the courtroom and a colloquy ensued.

The defense counsel stated that he wanted to ask the witness about a trip she had taken to Ireland with her family, the purchase of a car, and her husband’s need to pay for the services of an attorney, all coinciding with the period during which the alleged thefts occurred. The prosecution objected on the grounds of relevance, arguing that there was absolutely no reason to believe that the Assistant Manager had any connection to the withdrawals, and that "coincidence is not proof’. The following then occurred:

"the court: Do you have any knowledge, do you have any facts you can give me concerning the source of the money they used to go to Ireland with or what they paid the lawyer with or how much they paid the lawyer, or did the lawyer get paid period? Do you have anything like that?
"[Defense Counsel]: I don’t think we do.
[242]*242"the court: If you don’t have anything like that, you’re fishing. All you’re doing is throwing it out besmirching their reputation in front of the jury”.

The court sustained the objection, and no further cross-examination concerning the issues on appeal followed. It should be noted at this juncture that after jury deliberations began, for purposes of the record, the defense counsel presented proof of the Assistant Manager’s family’s need for an attorney, to wit, a local newspaper article of March 8, 1989, regarding criminal charges brought against her husband.

Because the legal sufficiency of the People’s case also is at issue, a summary of the other proof will be made. The customer denied that she had completed and signed the withdrawal slips. However, on cross-examination she testified that one of these passbooks showed a $2,000 withdrawal on May 5, 1989, another withdrawal of $2,000 on June 22, 1989, and a $3,000 withdrawal on September 28, 1989. These dates and figures coincided with those on three of the withdrawal slips the defendant had been charged with forging.

There also was testimony from another teller who stated that in accord with bank rules which prohibited employees from handling their own accounts, she had personally made "about 12” of the 15 deposits made to the defendant’s personal account during the relevant period, totalling $12,986. However, on cross-examination this teller acknowledged that the defendant had told her that her uncle, whom the teller knew, was using her account because he did not have one. This witness also acknowledged that she herself had sometimes placed a supervisor’s initials on bank documents if the press of business made it convenient to do so.

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Cite This Page — Counsel Stack

Bluebook (online)
190 A.D.2d 238, 597 N.Y.S.2d 975, 1993 N.Y. App. Div. LEXIS 4881, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-ashner-nyappdiv-1993.