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People v. Montes

Supreme Court of New York, Third Department

December 26, 2019

The People of the State of New York, Respondent,
Germaine Montes, Appellant.

          Calendar Date: November 15, 2019

          Carolyn B. George, Albany, for appellant, and appellant pro se.

          P. David Soares, District Attorney, Albany (Emily Schultz of counsel), for respondent.

          Before: Egan Jr., J.P., Clark, Devine and Aarons, JJ.

          Egan Jr., J.P.

         Appeal from a judgment of the County Court of Albany County (Carter, J.), rendered August 1, 2018, upon a verdict convicting defendant of the crime of criminal possession of a forged instrument in the second degree (three counts).

         On April 11, 2017, defendant was charged by sealed indictment with three counts of criminal possession of a forged instrument in the second degree based upon allegations that, on three separate occasions, he knowingly deposited a forged check into another individual's bank account. Defendant was arrested and arraigned on the indictment on November 8, 2017. He thereafter filed an omnibus motion seeking to, among other things, dismiss the indictment for violation of his statutory right to a speedy trial pursuant to CPL 30.30 and suppress any pretrial identifications. Following two separate hearings, County Court denied defendant's speedy trial motion, finding that the police had exercised due diligence in attempting to locate defendant following the unsealing of his indictment, and denied the suppression of any pretrial identifications of defendant on the ground that said identifications were merely confirmatory. Following a jury trial, defendant was convicted as charged and he was thereafter sentenced, as a predicate felony offender, to a prison term of 2 to 4 years on each count, with the sentences on the first two counts to be served consecutively to one another and concurrently with the sentence imposed on the third count, for a total prison term of 4 to 8 years. Defendant appeals.

         Defendant initially contends that his convictions were not supported by legally sufficient evidence and were against the weight of the evidence insofar as the People failed to prove that he knowingly possessed the subject forged checks. "When conducting a legal sufficiency analysis, we view the evidence in the light most favorable to the People and evaluate whether there is any valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the jury on the basis of the evidence at trial and as a matter of law satisfy the proof and burden requirements for every element of the crime charged" (People v Glover, 160 A.D.3d 1203, 1204 [2018] [internal quotation marks and citations omitted]). As relevant here, to be found guilty of criminal possession of a forged instrument in the second degree, the People were required to prove that defendant uttered or possessed the subject forged instruments "with knowledge that [they were] forged and with intent to defraud, deceive or injure another" (see Penal Law § 170.25). To that end, "guilty knowledge of forgery may be shown circumstantially by conduct and events, and evidence of an intent to defraud or deceive may be inferred from a defendant's actions and surrounding circumstances" (People v Gretzinger, 164 A.D.3d 1021, 1022 [2018] [internal quotation marks, brackets and citations omitted]; see People v Johnson, 65 N.Y.2d 556, 561 [1985]).

         Here, the evidence introduced at trial established that defendant approached three separate individuals on three separate dates in November 2014, January 2015 and March 2015 and requested that each open a bank account at a particular bank and provide him with the corresponding account information and documentation (i.e., bank starter packet, debit card, pin number and/or starter checks). In return for opening the account and turning over their account documentation, defendant gave each individual cash and/or gift cards and/or merchandise that he purchased on their behalf. The bank records for each individual's account show that, shortly after defendant procured their account information, a forged check was deposited into each of the accounts via an ATM deposit. In the days following each ATM deposit, a number of balance inquiries were made on each account and, once the subject funds became accessible, a succession of ATM withdrawals and/or other large purchases and/or payments would be made from each respective account. Each of the three individuals testified that they had no knowledge of any such check being deposited into the account and they had not personally deposited any such check, nor did they affix a signature or otherwise recognize the signature that was endorsed thereon.

         A senior investigator for the bank in which all three accounts were opened reviewed the bank records for these accounts, as well as video surveillance footage, which established that none of the three individuals who opened the subject bank accounts was the same person who subsequently made the three ATM deposits. Photographs from the ATMs where each of the three deposits were made clearly identified defendant as the individual who made the deposits. Moreover, the date of each photograph directly corresponds with the bank records indicating the date on which each of the subject deposits were made into the three individuals' bank accounts. Viewing the evidence in a light most favorable to the People, we find that sufficient evidence was presented at trial from which a jury could reasonably infer that defendant knowingly procured the three individuals' bank account information with the intent of defrauding the subject bank and thereafter knowingly possessed and deposited three forged checks into the subject individuals' accounts for the same fraudulent purpose. Accordingly, we find that the People presented legally sufficient evidence to support defendant's convictions for criminal possession of a forged instrument in the second degree. Additionally, although another verdict would not have been unreasonable, viewing the evidence in a neutral light and giving deference to the jury's credibility determinations, we are satisfied that the verdict is not against the weight of the evidence (see People v Danielson, 9 N.Y.3d 342, 348 [2007]; People v Gretzinger, 164 A.D.3d at 1023; People v Hold, 101 A.D.3d 1692, 1693 [2012], lv denied 21 N.Y.3d 1016 [2013]).

         We reject defendant's contention that County Court erred when it denied his statutory speedy trial motion. Inasmuch as defendant was charged with three felony counts, the People were required to be ready for trial within six months (see CPL 30.30 [1] [a]). "In computing the time within which the People must be ready for trial, the court must exclude the period of delay resulting from the absence or unavailability of the defendant" (People v Hawkins, 130 A.D.3d 1298, 1300 [2015] [internal quotation marks and citations omitted], lv denied 26 N.Y.3d 968 [2015]; see CPL 30.30 [4] [c] [i]). As relevant here, "[a] defendant must be considered absent whenever his [or her] location is unknown and he [or she] is attempting to avoid apprehension or prosecution, or his [or her] location cannot be determined by due diligence" (CPL 30.30 [4] [c] [i]; see People v Flagg, 30 A.D.3d 889, 891 [2006], lv denied 7 N.Y.3d 848');">7 N.Y.3d 848 [2006]). Importantly, "[t]he determination of whether the People have exercised due diligence in locating a person is a mixed question of law and fact and while minimal attempts to locate a defendant and secure his or her presence in court will not satisfy the due diligence standard, the police are not obliged to search for a defendant indefinitely as long as they exhaust all reasonable investigative leads as to his or her whereabouts" (People v Hawkins, 130 A.D.3d at 1300 [internal quotation marks, brackets and citations omitted]; see People v Devino, 110 A.D.3d 1146, 1148-1149 [2013]).

         It is undisputed that six months and 27 days elapsed between the April 11, 2017 unsealing of defendant's indictment and his subsequent apprehension and arraignment on November 8, 2017. [1] The evidence introduced at the CPL 30.30 hearing demonstrated that the People met their burden of establishing that the police exercised due diligence in attempting to apprehend defendant following his indictment but before his arrest. A State Police investigator testified that, upon issuance of the arrest warrant, he entered it into a statewide portal and directed a state trooper to assist him in locating defendant. The investigator and the trooper then attempted to locate defendant at his mother's address on Morton Avenue in the City of Albany and surveilled that address for a period of time without success. The state trooper also spoke with both defendant's father and the father's ex-girlfriend and was informed that defendant did not reside at either of those addresses nor did they know his current whereabouts. Unable to locate defendant, in May 2017, the investigator notified the Albany Crime Analysis Center and the United States Marshals Service of defendant's warrant. Throughout the summer of 2017, the assigned state trooper continued to patrol Morton Avenue looking for defendant "[a]t least a few times a month," the investigator personally looked for or made inquiry into defendant's whereabouts approximately 20 times and officers with the City of Albany Police Department separately checked various addresses and patrolled Morton Avenue at least a dozen times specifically looking for defendant.

         Notably, on July 30, 2017, Albany police responded to a fire call at the apartment of defendant's mother and confirmed that defendant was residing at that address. In September 2017, the investigator contacted the Albany Housing Authority which controlled the building where the mother's apartment was located to ascertain if defendant had been seen in the area. They also staked out that location on multiple occasions in September, October and November 2017, ultimately apprehending defendant on November 8, 2017 after observing him exit the subject apartment building. Although the investigator and assigned trooper did not document each and every attempt that they made to find defendant during the subject time period, "it cannot be said that the authorities shirked their continuing obligation of due diligence" (People v Hawkins, 130 A.D.3d at 1301 [internal quotation marks and citations omitted]). Accordingly, given the testimony adduced at the hearing, we find that the People sufficiently established that more than 27 days of time were excludable given the reasonable efforts made by multiple police agencies to locate defendant and, therefore, defendant's statutory right to a speedy trial was not violated (see CPL 30.30; People v Hawkins, 130 A.D.3d at 1301).

         Next, defendant contends that County Court erred when it denied his motion for a mistrial on the ground that one of the trial jurors was grossly unqualified to serve pursuant to CPL 270.35. We disagree. Pursuant to CPL 270.35, "[i]f at any time after the trial jury has been sworn and before the rendition of its verdict, ... the court finds, from facts unknown at the time of the selection of the jury, that a juror is grossly unqualified to serve in the case or has engaged in misconduct of a substantial nature... the court must discharge such juror" (CPL 270.35 [1]). A juror is considered grossly unqualified to serve "when it becomes obvious that [he or she] possesses a state of mind which would prevent the rendering of an impartial verdict" (People v Kuzdzal, 31 N.Y.3d 478, 483 [2018] [internal quotation marks and citation omitted]; accord People v Reichel, 110 A.D.3d 1356, 1358 [2013], lv denied22 N.Y.3d 1090');">22 N.Y.3d 1090 [2014]). As the trial court is in the best position to observe the jury and assess the state of mind and alleged partiality of an ...

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