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

663
KA 07-02496
PRESENT: SMITH, J.P., PERADOTTO, CARNI, SCONIERS, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

GERARD IPPOLITO, ALSO KNOWN AS GERALD IPPOLITO,
DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JAMES ECKERT OF
COUNSEL), FOR DEFENDANT-APPELLANT.

MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (JOSEPH D. WALDORF OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Alex R. Renzi,
J.), rendered October 31, 2007. The judgment convicted defendant,
upon a jury verdict, of grand larceny in the second degree and
criminal possession of a forged instrument in the second degree (43
counts).

     It is hereby ORDERED that the judgment so appealed from is
modified on the law by reversing those parts convicting defendant of
criminal possession of a forged instrument in the second degree under
counts 2 through 15, 17 through 26 and 28 through 43 of the indictment
and dismissing those counts, and by vacating the amount of restitution
ordered and as modified the judgment is affirmed, and the matter is
remitted to Monroe County Court for a hearing to determine the amount
of restitution.

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of one count of grand larceny in the second degree
(Penal Law § 155.40 [1]) and 43 counts of criminal possession of a
forged instrument in the second degree (§ 170.25). We agree with
defendant that his conviction of criminal possession of a forged
instrument in the second degree under 40 counts of the indictment is
not supported by legally sufficient evidence, and we therefore modify
the judgment accordingly. Those 40 counts involve the checks on which
defendant signed the victim’s name while he was her attorney-in-fact
pursuant to the power of attorney executed by the victim in June 2003.
Viewing the evidence in the light most favorable to the People (see
People v Contes, 60 NY2d 620, 621), we conclude that the ostensible
maker of the checks, i.e., the victim, authorized the actual maker of
the checks, i.e., defendant, to make the checks, “which purport[] to
be [the] authentic creation[s]” of the victim (§ 170.00 [4]). Thus,
it cannot be said that the checks in question were falsely made (see
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                                                         KA 07-02496

id.; § 170.10 [1]; § 170.25), although “recitals in the instrument may
be false” or defendant may have exceeded the scope of authority
delegated to him by the victim (Donnino, Practice Commentary,
McKinney’s Cons Laws of NY, Book 39, Penal Law § 170.00, at 326; see
also People v Cunningham, 2 NY3d 593, 598-599; People v Cannarozza, 62
AD2d 503, 504-505, affd 48 NY2d 687). We therefore conclude that
there is no valid line of reasoning or permissible inferences to
support the conclusion reached by the jury with respect to the counts
of criminal possession of a forged instrument in the second degree
based on those checks (see generally People v Bleakley, 69 NY2d 490,
495). In light of our decision, we need not address defendant’s
further contention that the verdict with respect to those counts is
against the weight of the evidence (see generally People v Lawhorn, 21
AD3d 1289, 1291).

     We also agree with defendant that he was entitled to a hearing on
the amount of restitution. Pursuant to Penal Law § 60.27 (2), County
Court was required to conduct a hearing upon the request of the
defendant, “ ‘irrespective of the level of evidence in the record’ ”
(People v Gazivoda, 68 AD3d 1346, 1347, lv denied 14 NY3d 840, quoting
People v Consalvo, 89 NY2d 140, 146). We therefore further modify the
judgment by vacating the amount of restitution ordered, and we remit
the matter to County Court for a hearing to determine the amount of
restitution. The remaining contention of defendant in his main brief
is not preserved for our review (see generally People v Reed, 277 AD2d
1043, lv denied 96 NY2d 805) and, in any event, that contention is
without merit.

     All concur except CARNI, J., who dissents in part and votes to
modify in accordance with the following Memorandum: I respectfully
disagree with the conclusion of my colleagues that defendant’s signing
of the name of the victim on the checks at issue did not constitute
the “ ‘false[ ] mak[ing]’ ” of an instrument within the meaning of
Penal Law § 170.00 (4). I conclude, as a matter of law, that the
power of attorney executed by the victim did not authorize defendant
to sign the victim’s name to the subject checks and to purport such
instruments and the signatures thereupon to be authentic creations of
the victim (see id.). Therefore, I dissent in part.

     Defendant concedes that he signed the victim’s name to each check
at issue. The victim testified at trial that she did not give
defendant permission to sign her name on the checks. Therefore, “the
People established in the first instance that [the checks were] forged
instrument[s]. The burden of explanation then fell upon the defendant
. . . to explain [that] the instrument[s] . . . had been executed by
authority” (People v Shanley, 132 App Div 821, 829, affd 196 NY 574).

     Initially, I conclude as a matter of law that the power of
attorney did not authorize defendant to make and present the checks at
issue as authentic or genuine (see id. at 830). Therefore, the
instruments were forgeries inasmuch as they “purported to be what
[they were] not, [i.e.], the personal act[s] of [the victim]” in
signing each check (id.). The checks at issue bore no indication that
defendant was acting in a representative capacity or under the
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                                                         KA 07-02496

authority of a power of attorney. Indeed, by signing the victim’s
name to the checks without any such indication and presenting the
checks to third-party banking institutions, defendant denied those
institutions the right and opportunity to inquire into the validity of
his authority or the instrument under which he claimed such authority
(see People v Cunningham, 2 NY3d 593, 598 n 4; 4 Blackstone,
Commentaries on the Laws of England, at 245 [defining forgery as
“ ‘the fraudulent making or alteration of a writing to the prejudice
of another (person’s) right’ ”]). Upon the drawing and presentment of
each check that defendant falsely purported to be authentically signed
by the victim, defendant “ ‘made and uttered a false instrument [that]
was an imitation and not what it purported to be’ ” (Shanley, 132 App
Div at 831). I therefore conclude that defendant’s conviction of
criminal possession of a forged instrument in the second degree under
the 40 counts of the indictment challenged by defendant is supported
by legally sufficient evidence (see generally People v Bleakley, 69
NY2d 490, 495).

     Further, “[i]t was a question of fact, under the circumstances of
this case, whether the defendant did act under [the] power of
attorney, irrespective of the question whether as [a] matter of law it
conferred upon him authority to do what he did do” (Shanley, 132 App
Div at 830). The jury obviously concluded that defendant did not act
under the power of attorney—regardless of any authority that it may
have conferred upon him. Viewing the evidence in light of the
elements of the crimes as charged to the jury (see People v Danielson,
9 NY3d 342, 349), I conclude that the verdict is not against the
weight of the evidence (see generally Bleakley, 69 NY2d at 495).

     I agree with my colleagues that defendant’s remaining contention
in his main brief, i.e., that County Court erred in answering a juror
question prior to deliberations without first consulting the parties,
is not preserved for our review (see CPL 470.05 [2]) and that, in any
event, defendant’s contention is without merit (see CPL 310.30; People
v Contrero, 232 AD2d 213, lv denied 89 NY2d 1090). I also agree that
defendant was entitled to a hearing on the amount of restitution (see
People v Gazivoda, 68 AD3d 1346, 1347, lv denied 14 NY3d 840).
Therefore, I would modify the judgment by vacating the amount of
restitution ordered and, as modified, I would affirm the judgment and
remit the matter to County Court for a hearing to determine the amount
of restitution.




Entered:   November 10, 2011                   Patricia L. Morgan
                                               Clerk of the Court
