THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v ERIC ASAI, Appellant.
Appellate Division of the Supreme Court of the State of New York, Third Department
October 22, 2009
66 A.D.3d 1138, 888 N.Y.S.2d 617
Defendant was charged in an indictment with 10 counts of criminal possession of a forged instrument in the second degree and one count of grand larceny in the third degree arising out of his repeated application for and misuse of Price Chopper‘s “AdvantEdge” courtesy cards (hereinafter AdvantEdge card) in various stores located throughout Albany County from October 2003 through January 2004. While processing AdvantEdge card applications, Price Chopper‘s staff discovered multiple applications, each bearing defendant‘s correct name, address, telephone number and date of birth, but containing different driver‘s license identification numbers.1 A subsequent search of Price Chopper‘s database revealed that 10 of the AdvantEdge cards issued to defendant had been blocked from further use as a
After a jury trial, defendant was convicted of all charges. Supreme Court thereafter sentenced defendant to 11 consecutive prison terms of 3 1/2 to 7 years,2 plus restitution. Defendant now appeals.
Defendant first argues that the evidence was not legally sufficient to establish the charges of criminal possession of a forged instrument in the second degree. We agree. Establishment of a prima facie case of criminal possession of a forged instrument in the second degree requires the People to prove, among other things, that defendant knowingly uttered or possessed a forged instrument—meaning one that “has been falsely made, completed or altered” (
Here, in completing the AdvantEdge card applications, defendant provided his own name, address, telephone number and date of birth. The applications were made by the person who was authorized to do so (see People v Adkins, 236 AD2d at 850-851). Although defendant gave fictitious driver‘s license numbers, he did not represent himself to be anyone other than Eric Asai. While defendant‘s conduct was clearly fraudulent,
Turning next to his conviction of grand larceny in the third degree, defendant contends that Supreme Court erred in permitting the People to aggregate the amounts of the individual bad checks so as to convict him of one count of grand larceny, as opposed to multiple counts of petit larceny.3 Specifically, defendant argues that the court erred in failing to instruct the jury that a conviction of grand larceny in the third degree requires proof of a single larcenous scheme executed over a period of time. Defendant‘s failure to request such jury charge and to object to Supreme Court‘s charge as given renders this claim unpreserved for our review (see
We find no merit to any of defendant‘s challenges to various rulings concerning the admissibility of evidence. First, with respect to the admission of identification evidence, after the People initially offered sufficient evidence to demonstrate that the pretrial photo array was not unduly suggestive (see People v Chipp, 75 NY2d 327, 335 [1990], cert denied 498 US 833 [1990]; People v Means, 35 AD3d 975, 976 [2006], lv denied 8 NY3d 948 [2007]; People v Chatham, 55 AD3d 1045, 1045-1046 [2008]), defendant failed to meet his burden of demonstrating otherwise (see People v Chatham, 55 AD3d at 1046). Inasmuch as the record supports denial by County Court (Breslin, J.) of defendant‘s motion to
We also find no abuse of discretion in Supreme Court‘s admission of certain evidence of defendant‘s uncharged crimes and prior bad acts (see People v Rojas, 97 NY2d 32, 37-38 [2001]; People v Adams, 39 AD3d 1081, 1082 [2007], lv denied 9 NY3d 872 [2007]). After determining that the identity exception to the Molineux rule was applicable (see People v Alvino, 71 NY2d 233, 242 [1987]; People v Molineux, 168 NY 264, 293 [1901]; People v Fuller, 50 AD3d 1171, 1176 [2008], lv denied 11 NY3d 788 [2008]), Supreme Court properly conducted a hearing and weighed the probative value of defendant‘s prior convictions and bad acts against their prejudicial effect (see People v Rojas, 97 NY2d at 37-38; People v Adams, 39 AD3d at 1082). Notably, Supreme Court also gave appropriate limiting instructions to the jury regarding this evidence.
Defendant‘s contentions with regard to the admissibility of testimony concerning certain handwriting exemplars and with regard to the sentence imposed are rendered academic by the foregoing decision. To the extent not specifically addressed herein, we have reviewed defendant‘s remaining contentions and find them to be without merit.
Cardona, P.J., Peters, Kavanagh and McCarthy, JJ., concur.
Ordered that the judgment is modified, on the law, by reversing defendant‘s convictions of criminal possession of a forged instrument in the second degree under the first 10 counts of the indictment; said counts dismissed and the sentences imposed thereon vacated; and, as so modified, affirmed.