LAPP, PUBLIC DEFENDER, CANANDAIGUA (GARY MULDOON OF COUNSEL),
B. WOMACK, DEFENDANT-APPELLANT PRO SE.
MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA (V.
CHRISTOPHER EAGGLESTON OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, CARNI, CURRAN, AND SCUDDER, JJ.
from a judgment of the Ontario County Court (William F.
Kocher, J.), rendered June 25, 2014. The judgment convicted
defendant, upon a jury verdict, of criminal possession of a
forged instrument in the second degree and offering a false
instrument for filing in the first degree.
hereby ORDERED that the judgment so appealed from is
Defendant appeals from a judgment convicting him, upon a jury
verdict, of criminal possession of a forged instrument in the
second degree (Penal Law § 170.25), and offering a false
instrument for filing in the first degree (§ 175.35).
Defendant failed to preserve for our review his contention in
his main brief that he was penalized for exercising his right
to a trial, "inasmuch as [he] failed to raise that
contention at sentencing" (People v Stubinger,
87 A.D.3d 1316, 1317, lv denied 18 N.Y.3d 862;
see People v Pope, 141 A.D.3d 1111, 1112, lv
denied 29 N.Y.3d 951). In any event, that contention
lacks merit. " Given that the quid pro quo of
the bargaining process will almost necessarily involve offers
to moderate sentences that ordinarily would be greater, it is
also to be anticipated that sentences handed out after trial
may be more severe than those proposed in connection with a
plea' " (People v Martinez, 26 N.Y.3d 196,
200). Here, contrary to defendant's contention,
"[t]here is no evidence that defendant was given the
lengthier sentence solely as a punishment for exercising his
right to a trial" (People v Aikey, 94 A.D.3d
1485, 1486, lv denied 19 N.Y.3d 956');">19 N.Y.3d 956 [internal
quotation marks omitted]; see Pope, 141 A.D.3d at
1112). We reject defendant's challenge in his main brief
to the severity of the sentence.
pro se supplemental brief, defendant contends that the
evidence is legally insufficient to establish two elements of
the criminal possession of a forged instrument count, i.e.,
that he acted with knowledge that the instrument was forged
and "with intent to defraud, deceive or injure
another" (Penal Law § 170.25; see People v
Rodriguez, 17 N.Y.3d 486, 490). In his motion for a
trial order of dismissal, defendant contended only that the
evidence is legally insufficient to establish that he acted
with the requisite knowledge, and he therefore failed to
preserve for our review his contention with respect to the
element of intent (see People v Gray, 86 N.Y.2d 10,
19). In any event, that contention lacks merit. It is well
settled that intent may " be inferred from the
defendant's conduct and the surrounding
circumstances' " (People v Bracey, 41
N.Y.2d 296, 301, rearg denied 41 N.Y.2d 1010;
see Rodriguez, 17 N.Y.3d at 489). Here, viewing the
evidence, as we must, in the light most favorable to the
People (see People v Contes, 60 N.Y.2d 620, 621), we
conclude that the evidence is legally sufficient with respect
to the element of intent (see generally Rodriguez,
17 N.Y.3d at 489-491).
with respect to defendant's challenge to the sufficiency
of the evidence regarding the element of knowledge, it is
well settled that "[g]uilty knowledge of forgery may be
shown circumstantially by conduct and events"
(People v Johnson, 65 N.Y.2d 556, 561, rearg
denied 66 N.Y.2d 759). Here, we conclude that "the
jury... had a sufficient evidentiary basis upon which to find
defendant's knowledge of the forged character of the
possessed instrument beyond a reasonable doubt"
(id.; see People v Hold, 101 A.D.3d 1692,
1693, lv denied 21 N.Y.3d 1016). Thus, we conclude
that the evidence is legally sufficient to support the
conviction (see generally People v Bleakley, 69
N.Y.2d 490, 495). Furthermore, contrary to the contention of
defendant in his pro se supplemental brief, viewing the
evidence in light of the elements of the crime of criminal
possession of a forged instrument in the second degree as
charged to the jury (see People v Danielson, 9
N.Y.3d 342, 349), we conclude that the verdict with respect
to that count is not against the weight of the evidence
(see generally Bleakley, 69 N.Y.2d at 495).
also failed to preserve for our review his contention in his
pro se supplemental brief that he was deprived of a fair
trial by prosecutorial misconduct on summation because he
"failed to object to any of the remarks by the
prosecutor during summation" (People v Simmons,
133 A.D.3d 1275, 1277, lv denied27 N.Y.3d 1006). In
any event, defendant's contention lacks merit. The
prosecutor did not improperly vouch for the credibility of a
prosecution witness on summation, because "[a]n argument
by counsel on summation, based on the record evidence and
reasonable inferences drawn therefrom, that his or her
witnesses have testified truthfully is not vouching for their
credibility" (People v Keels, 128 A.D.3d 1444,
1446, lv denied26 N.Y.3d 969; see People v
Bailey, 58 N.Y.2d 272, 277). Furthermore, the
prosecutor's remarks were "a fair response" to