Decided on October 16, 2012
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Gonzalez, P.J., Sweeny, Acosta, Renwick, Manzanet-Daniels, JJ.
Judgment, Supreme Court, New York County (Lewis Bart Stone, J.), rendered October 14, 2010, convicting defendant, after a jury trial, of criminal possession of a forged instrument in the second degree and forgery in the second degree, and sentencing him, as a second felony offender, to concurrent terms of 3 to 6 years, unanimously affirmed.
The verdict was supported by legally sufficient evidence and was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348 ). The chain of circumstances surrounding defendant's receipt of a fraudulent debit card from the co-defendant, as observed by a police officer, and defendant's use of the card supported the inference that defendant knew it was forged (see e.g. People v Price, 16 AD3d 323 [1st Dept 2005], lv denied 5 NY3d 767 ). Furthermore, defendant's trial testimony explaining his acquisition of the card was incredible, and this testimony contained material admissions that further supported the inference of knowledge. The element of fraudulent intent was established by defendant's use of the card, which had been altered so that a third party would be billed for the transaction, to make an expensive purchase.
Any error in instructing the jury on the presumption arising from possession of two or more forged cards (Penal Law § 170.27) was harmless. There is no reasonable possibility that the jury based its verdict on an improper theory (see People v Ray, 254 AD2d 189 [1st Dept 1998], lv denied 92 NY2d 985 ; compare People v Martinez, 83 NY2d 26, 33-34 , cert denied 511 US 1137 ).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: OCTOBER 16, 2012
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