        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

871
KA 09-02274
PRESENT: CENTRA, J.P., FAHEY, LINDLEY, SCONIERS, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JAMES MHINA, DEFENDANT-APPELLANT.


FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (CHRISTINE COOK OF
COUNSEL), FOR DEFENDANT-APPELLANT.

JAMES MHINA, DEFENDANT-APPELLANT PRO SE.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Onondaga County Court (Joseph E.
Fahey, J.), rendered October 9, 2009. The judgment convicted
defendant, upon a jury verdict, of criminal possession of a forged
instrument in the second degree (three counts), falsifying business
records in the first degree (two counts) and scheme to defraud in the
second degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously reversed on the law and a new trial is granted on counts
one through six of the indictment.

     Memorandum: Defendant appeals from a judgment convicting him,
upon a jury verdict, of three counts of criminal possession of a
forged instrument in the second degree (Penal Law § 170.25), two
counts of falsifying business records in the first degree (§ 175.10),
and scheme to defraud in the second degree (§ 190.60 [1]). We reject
defendant’s contention that the evidence is legally insufficient to
establish his knowledge that the checks at issue herein were forged
(see generally People v Bleakley, 69 NY2d 490, 495). In a prosecution
for criminal possession of a forged instrument, the element of
knowledge “may be established circumstantially by conduct and events”
(People v Moore, 41 AD3d 1202, 1203, lv denied 9 NY3d 879). Viewing
the evidence in the light most favorable to the People, 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[s] beyond a reasonable doubt’ ” (id., quoting People v
Johnson, 65 NY2d 556, 561, rearg denied 66 NY2d 759). Furthermore,
viewing the evidence in light of the elements of the crimes as charged
to the jury (see People v Danielson, 9 NY3d 342, 349), we reject
defendant’s contention that the verdict is against the weight of the
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                                                         KA 09-02274

evidence (see generally Bleakley, 69 NY2d at 495).

     We agree with defendant, however, that County Court’s Molineux
ruling constitutes reversible error. Before the trial, the court
granted the People’s motion to present Molineux evidence for the
limited purpose of proving the absence of mistake in defendant’s
possession of the forged checks (see People v Molineux, 168 NY 264,
293-294). Pursuant to the court’s ruling, the People presented
evidence on their direct case concerning three of defendant’s prior
convictions as well as one investigation that did not result in
criminal charges, arising from defendant’s conduct in writing checks
on his accounts with knowledge that those accounts either were closed
or had insufficient funds. The court erred in ruling that such
evidence was relevant to establish the absence of mistake. The
disputed issues at trial were whether defendant knew that the checks
were forged and whether defendant was a knowing participant in, or an
innocent victim of, a fraudulent check scheme. Defendant’s prior bad
acts were not “directly relevant” to the absence of mistake in
defendant’s possession of the forged checks because those prior bad
acts are not probative of defendant’s ability to recognize that the
checks were forgeries or that he had become knowingly involved in a
fraudulent check scheme (People v Cass, 18 NY3d 553, 560). Contrary
to the People’s contention, the Molineux evidence was not admissible
to prove defendant’s “familiarity with check frauds and his ability to
deceive individuals through banking schemes” inasmuch as such evidence
“tends only to demonstrate the defendant’s propensity to commit the
crime charged” (id. at 559). Furthermore, the Court of Appeals has
expressly declined to create a “ ‘specialized crime’ exception to
Molineux” when the charged crime is one “that require[s] unusual
skills, knowledge and access to the means of committing it” (People v
Arafet, 13 NY3d 460, 466). We therefore conclude that evidence of
defendant’s prior bad acts was inadmissible as a matter of law (see
People v Alvino, 71 NY2d 233, 242).

     We further conclude in any event with respect to the court’s
Molineux ruling that the probative value of the evidence did not
outweigh its prejudicial effect (see Cass, 18 NY3d at 560; People v
Gamble, 18 NY3d 386, 398, rearg denied 19 NY3d 833; People v Drake, 94
AD3d 1506, 1508, lv denied 20 NY3d 1010). The evidence was “of slight
value when compared to the possible prejudice to [defendant]” and
therefore should not have been admitted (People v Allweiss, 48 NY2d
40, 47; see Alvino, 71 NY2d at 242). We further conclude that the
error in admitting the evidence is not harmless (see People v Bradley,
20 NY3d 128, 135-136; cf. People v Bounds, 100 AD3d 1523, 1524, lv
denied 20 NY3d 1096; see generally People v Crimmins, 36 NY2d 230,
241-242), even in view of the court’s limiting instruction. We
therefore reverse the judgment and grant a new trial on counts one
through six of the indictment.

     In light of our determination to grant a new trial, we do not
address defendant’s remaining contentions in his main and pro se
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                                            KA 09-02274

supplemental briefs.




Entered:   October 4, 2013         Frances E. Cafarell
                                   Clerk of the Court
