People v. Ippolito

89 A.D.3d 1369, 932 N.Y.2d 603

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 10, 2011
• Status: Published

Opinions

It is hereby ordered that the judgment so appealed from is modified on the law by reversing those parts convicting defendant of criminal possession of a forged instrument in the second degree under counts 2 through 15, 17 through 26 and 28 through 43 of the indictment and dismissing those counts, and by vacating the amount of restitution ordered and as modified the judgment is affirmed, and the matter is remitted to Monroe County Court for a hearing to determine the amount of restitution.

Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of one count of grand larceny in the second degree (Penal Law § 155.40 [1]) and 43 counts of criminal possession of a forged instrument in the second degree (§ 170.25). We agree with defendant that his conviction of criminal possession of a forged instrument in the second degree under 40 counts of the indictment is not supported by legally sufficient evidence, and we therefore modify the judgment accordingly. Those 40 counts involve the checks on which defendant signed the victim’s name while he was her attorney-in-fact pursuant to the power of attorney executed by the victim in June 2003. Viewing the evidence in the light most favorable to the People (see People v Contes, 60 NY2d 620, 621 [1983]), we conclude that the ostensible maker of the checks, i.e., the victim, authorized the actual maker of the checks, i.e., defendant, to make the checks, “which purport[ ] to be [the] authentic creation[s]” of the victim (§ 170.00 [4]). Thus, it cannot be said, that the checks in question were falsely made (see id,.-, § 170.10 ; § 170.25), although “recitals in the instrument may be false” or defendant may have exceeded the scope of authority delegated to him by the victim (Donnino, Practice Commentary, McKinney’s Cons Laws of NY, Book 39, Penal Law § 170.00, at 326; see also People v Cunningham, 2 NY3d 593, 598-599 [2004]; People v Cannarozzo, 62 AD2d 503, 504-505 [1978], affd 48 NY2d 687 [1979]). We therefore conclude that there is no valid line of reasoning or permissible inferences to support the conclusion reached by the jury with respect to the counts of criminal possession of a forged instrument in the second degree based on those checks (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). In light of our decision, we need not address defendant’s further contention that the verdict with respect to those counts is against the weight of the evidence (see generally People v Lawhorn, 21 AD3d 1289, 1291 [2005]).

We also agree with defendant that he was entitled to a hearing on the amount of restitution. Pursuant to Penal Law § 60.27 (2) , County Court was required to conduct a hearing upon the request of the defendant, “ ‘irrespective of the level of evidence in the record’ ” (People v Gazivoda, 68 AD3d 1346, 1347 [2009], lv denied 14 NY3d 840 [2010], quoting People v Consalvo, 89 NY2d 140, 146 [1996]). We therefore further modify the judgment by vacating the amount of restitution ordered, and we remit the matter to County Court for a hearing to determine the amount of restitution. The remaining contention of defendant in his main brief is not preserved for our review (see generally People v Reed, 277 AD2d 1043 [2000], lv denied 96 NY2d 805 [2001]) and, in any event, that contention is without merit.

All concur except Garni, J., who dissents in part and votes to modify in accordance with the following memorandum.