                            State of New York
                     Supreme Court, Appellate Division
                        Third Judicial Department
Decided and Entered:     March 31, 2016                  106003
                                                         107259
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                       MEMORANDUM AND ORDER

MICHAEL K. KOCSIS,
                    Appellant.
________________________________


Calendar Date:   February 11, 2016

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

                               __________


     John A. Cirando, Syracuse, for appellant.

      Mary E. Rain, District Attorney, Canton (Ramy Louis of
counsel), for respondent.

                               __________


Egan Jr., J.

      Appeals (1) from a judgment of the County Court of St.
Lawrence County (Rogers, J.), rendered May 2, 2013, upon a
verdict convicting defendant of the crime of criminal possession
of a forged instrument in the second degree, and (2) by
permission, from an order of said court (Richards, J.), entered
December 8, 2014, which denied defendant's motion pursuant to CPL
440.10 to vacate the judgment of conviction, without a hearing.

      In the fall of 2011, defendant was hired as a worker to
assist in performing certain interior home renovations on a
residence located in the Village of Massena, St. Lawrence County.
On or about December 27, 2011, the homeowner (hereinafter the
victim) discovered that a check in the amount of $125 – drawn on
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her deceased husband's checking account – had been cashed and the
corresponding funds had been deducted from that account, without
her consent or authorization.1 The victim immediately reported
this incident to the local police and to her bank. The check,
which was made payable to cash, was cashed at the bank upon which
it was drawn by Bobbie Jo French – one of defendant's friends.

      Defendant thereafter was indicted and charged with one
count of criminal possession of a forged instrument in the second
degree. Following a jury trial, defendant was convicted as
charged and was sentenced to a prison term of 1a to 4 years.
Defendant subsequently moved pursuant to CPL 440.10 to vacate the
judgment of conviction, and County Court (Richards, J.) denied
that motion without a hearing. Defendant now appeals from the
judgment of conviction and, by permission, from the denial of his
CPL article 440 motion.2

      Initially, we reject defendant's assertion that the People
violated his discovery rights by failing to timely disclose
certain photographic evidence – specifically, photographs of the
renovation work that were taken by the homeowner, one of which
(People's exhibit No. 2) depicted defendant in the victim's home
in November 2011. Although this particular photograph of
defendant was received into evidence without objection, defense
counsel did object to the overall timeliness of the disclosure,
contending that the People became aware of such photographs when
the victim testified before the grand jury – an allegation that
the People denied. Even assuming, without deciding, that the
People failed to disclose the photographs in a timely manner,
reversal is not warranted. The photographs themselves were not
"exculpatory or impeaching in nature" (People v Newland, 83 AD3d
1202, 1204 [2011], lv denied 17 NY3d 798 [2011]), and County


     1
        The victim allowed this checking account to remain open
following her husband's death in September 2011 to permit certain
automatic payments from that account to continue.
     2
        Defendant's motion seeking bail and a stay pending appeal
was denied by a Justice of this Court.
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Court (Rogers, J.) afforded defendant a meaningful opportunity to
cross-examine the victim as to the contents of the photographs
and subpoena additional witnesses on this point if necessary (see
generally People v Hines, 132 AD3d 1385, 1386 [2015], lv denied
26 NY3d 1109 [2016]; People v Astacio, 105 AD3d 1394, 1395
[2013], lv denied 22 NY3d 1154 [2014]). Finally, upon reviewing
the record as a whole, "we find that there is no reasonable
possibility that the verdict would have been different had the
relevant [photographs] been disclosed in a timely manner" (People
v Dawson, 110 AD3d 1350, 1352 [2013], lv denied 23 NY3d 1035
[2014]; see People v Anderson, 118 AD3d 1138, 1142 [2014], lv
denied 24 NY3d 1117 [2015]).

      As for defendant's challenges to the legal sufficiency3 and
weight of the evidence, "[a] person is guilty of criminal
possession of a forged instrument in the second degree when, with
knowledge that it is forged and with intent to defraud, deceive
or injure another, he [or she] utters or possesses any forged
instrument of a kind specified in [Penal Law § 170.10]" (Penal
Law § 170.25), including a "commercial instrument" (Penal Law
§ 170.10 [1]). "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 Rebollo, 107 AD3d 1059,
1060-1061 [2013] [internal quotation marks and citations
omitted]).

      Here, there is no question that the subject check was
forged, as the alleged maker of the check died three months prior
to purportedly signing that instrument. With respect to the
circumstances surrounding the check's execution, the victim
testified that she did not give defendant – or anyone else, for
that matter – permission to take the check from the roll-top desk
where it was stored, to sign the check on behalf of her deceased


    3
        Contrary to the People's assertion, defendant's motions
for a trial order of dismissal – made at the close of the
People's case and again at the close of all proof – were
sufficiently specific to preserve this argument for our review.
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husband or to cash it and retain the proceeds. The victim
further testified that defendant worked at her residence "almost
on a daily basis," during which time he had access to the roll-
top desk at issue. Defendant's boss, brother and fellow coworker
– the other primary individuals working at the victim's residence
– each testified that they did not take a check from the victim's
residence, nor did they fill out a check belonging to the victim
and/or her deceased husband. Finally, French testified that
defendant gave her the subject check, told her it was his
paycheck and asked that she cash it on his behalf, which she
thereafter did – giving all of the proceeds to defendant.4 While
defendant now challenges French's veracity, her criminal history
was fully explored on cross-examination, and the jury had every
opportunity to assess her demeanor and credibility. Viewing this
evidence in the light most favorable to the People, the evidence
was legally sufficient to support the verdict. Further, while a
different result would not have been unreasonable, upon viewing
the evidence in a neutral light and deferring to the jury's
credibility assessments, we do not find the verdict to be against
the weight of the evidence.

      As for defendant's remaining arguments, we reject
defendant's assertion that County Court abused its discretion in
fashioning its Sandoval compromise, as our review of the record
reveals that the court properly balanced defendant's right to a
fair trial against the People's right to impeach defendant's
credibility based upon his prior convictions – had he elected to
testify (see People v Bateman, 124 AD3d 983, 985 [2015], lv
denied 25 NY3d 949 [2015]). Although County Court indeed
neglected to definitively rule as to whether the People would be
permitted to inquire into one of defendant's prior convictions –
an omission that defendant now contends influenced his decision


     4
        Although the check in question bore a notation indicating
that it was payment for "labor," defendant's boss testified that
his subcontractors customarily were paid in cash and, to the
extent that such payment would have been in the form of a check,
it would have been via a check drawn on his personal checking
account.
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as to whether he should testify – we find any error in this
regard to be harmless (see People v Grant, 7 NY3d 421, 424-425
[2006]).

      Nor are we persuaded that County Court erred in failing to
provide the requested accomplice instruction to the jury.
Pursuant to CPL 60.22, an accomplice is defined as "a witness in
a criminal action who, according to evidence adduced in such
action, may reasonably be considered to have participated in
. . . [t]he offense charged; or . . . [a]n offense based upon the
same or some of the same facts or conduct which constitute the
offense charged" (CPL 60.22 [2] [a], [b]; accord People v Sage,
23 NY3d 16, 23-24 [2014]). "Thus, to be an accomplice for
corroboration purposes, the witness must somehow be criminally
implicated and potentially subject to prosecution for the conduct
or factual transaction related to the crimes for which the
defendant is on trial" (People v Anderson, 118 AD3d at 1143
[internal quotation marks and citations omitted]). In this
regard, "[t]he determination of accomplice status depends on
whether there is a showing that the witness took part in the
preparation or perpetration of the crime with the intent to
assist therein, or that the witness counseled, induced or
encouraged the crime" (People v Adams, 307 AD2d 475, 476 [2003]
[internal quotation marks and citations omitted], lv denied 1
NY3d 566 [2003]), and it is the defendant who bears the burden of
proof on this point (see People v Sage, 23 NY3d at 24).

      Here, although French indeed was arrested and initially
charged for her admitted role in cashing the check, the proof
adduced at trial fell short of establishing that she acted with
the intent to assist defendant in his perpetration of the charged
crime or that she otherwise counseled, induced or encouraged
defendant to engage in such conduct. Notably, French testified –
without contradiction – that defendant presented her with the
check (completed in its entirety), told her that it was his
paycheck and asked her to cash it for him. French further
testified that she "thought it was okay" because the check bore a
notation indicating that it was payment for "labor" and she knew
that defendant was "a construction worker." French also stated
that she did not know that the check was forged, that she trusted
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defendant and that – once the check was cashed – she turned all
of the resulting proceeds over to defendant. Finally, although
French had prior drug-related convictions, the proof as a whole
failed to establish her role as defendant's accomplice (see
People v Anderson, 118 AD3d at 1143-1144). Accordingly, County
Court did not err in denying defendant's request to charge on
this point.

      As for defendant's claim of prosecutorial misconduct, the
record reflects that, during the course of the trial, certain
references were made – either by the Assistant District Attorney
(hereinafter ADA) presenting the case or the victim – to "checks"
in the plural, thereby suggesting that defendant had stolen more
than one check from the victim. Although such references
certainly were improper (given that defendant had been charged
with a single count of criminal possession of a forged instrument
in the second degree), defendant objected to only one of the now
challenged comments and, in response to this singular objection,
the ADA was admonished and immediately clarified for the jury
that he "misspoke," stating, "I said checks, it's [a] check."
Under these circumstances, we do not find that defendant was
deprived of a fair trial in this regard.

      We do, however, find merit to defendant's argument that he
was deprived of a fair trial based upon the guidance and
instructions provided by County Court to the ADA presenting the
case relative to the rules of evidence. To be sure, a trial
judge plays a "vital role in clarifying confusing testimony and
facilitating the orderly and expeditious progress of the trial"
(People v Yut Wai Tom, 53 NY2d 44, 57 [1981]; see People v Ojeda,
118 AD3d 919, 919 [2014], lv denied 24 NY3d 1087 [2014]; People v
Adams, 117 AD3d 104, 108-109 [2014], lv denied 24 NY3d 1000
[2014]). To that end, the court may "raise matters on its own
initiative in order to elicit significant facts [or to] clarify
or enlighten an issue" (People v Lupo, 92 AD3d 1136, 1138 [2012]
[internal quotation marks and citation omitted]). Such power,
however, "should be exercised sparingly" (People v Yut Wai Tom,
53 NY2d at 57), as "it is the function of the judge to protect
the record at trial, not to make it" (Matter of Kyle FF., 85 AD3d
1463, 1464 [2011] [internal quotation marks and citation
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omitted]).

      During the course of the trial, the ADA in question
demonstrated difficulty in laying the proper foundation for the
admission into evidence of certain photographs and bank records
and in utilizing a particular document to refresh a witness's
recollection. In response, County Court conducted various
sidebars, during the course of which the court, among other
things, explained the nature of defense counsel's objections,
outlined the questions that the ADA needed to ask of the
testifying witnesses, referred the ADA to a certain evidentiary
treatise and afforded him a recess in order to consult and review
the appropriate section thereof. Without further belaboring the
point, suffice it to say that our review of the record confirms
what County Court itself acknowledged – namely, that in
attempting to "explain[] some of the law" and in an effort to
avoid portraying defense counsel as "obstructionist," it
"explained one thing too many, in all fairness." As County
Court's assistance in this regard – although well-intentioned –
arguably created the perception that the People were receiving an
unfair tactical advantage, we are persuaded that this matter
should be remitted for a new trial (compare People v Tucker, 140
AD2d 887, 891-892 [1988], lv denied 72 NY2d 913 [1988]).
Defendant's remaining contentions, including his assertion that
he was denied the effective assistance of counsel and that County
Court (Richards, J.) erred in denying his CPL article 440 motion
without a hearing, have been examined and found to be lacking in
merit.

     Garry, J.P., Lynch, Devine and Clark, JJ., concur.
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      ORDERED that the judgment is reversed, on the law, and
matter remitted to the County Court of St. Lawrence County for a
new trial.

     ORDERED that the order is affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
