         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
1331
KA 11-00278
PRESENT: SCUDDER, P.J., FAHEY, CARNI, LINDLEY, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

DEMARIO S. QUINN, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ROBERT B. HALLBORG,
JR., OF COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (DAVID A. HERATY OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Erie County Court (Michael L.
D’Amico, J.), rendered October 6, 2010. The judgment convicted
defendant, upon a nonjury verdict, of grand larceny in the third
degree, falsifying business records in the first degree (two counts),
grand larceny in the fourth degree and offering a false instrument for
filing in the first degree (two counts).

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified as a matter of discretion in the interest of
justice by reversing that part convicting defendant of offering a
false instrument for filing in the first degree under count eight of
the indictment and dismissing that count of the indictment and as
modified the judgment is affirmed.

     Memorandum: Defendant appeals from a judgment convicting him,
upon a nonjury verdict, of one count each of grand larceny in the
third degree (Penal Law § 155.35 [1]) and grand larceny in the fourth
degree (§ 155.30 [1]), and two counts each of falsifying business
records in the first degree (§ 175.10) and offering a false instrument
for filing in the first degree (§ 175.35). At the outset, we note
that defendant failed to preserve for our review his contention that
counts seven and eight of the indictment, charging him with offering a
false instrument for filing, are multiplicitous (see CPL 470.05 [2]).
We nevertheless exercise our power to review that contention as a
matter of discretion in the interest of justice (see CPL 470.15 [6]
[a]) and, as the People correctly concede, we conclude that
defendant’s contention has merit. An indictment “is multiplicitous
when a single offense is charged in more than one count” (People v
Alonzo, 16 NY3d 267, 269) and, here, those counts are multiplicitous
because they are based on the same instrument and that instrument was
offered for filing only once. We therefore modify the judgment
accordingly.
                                 -2-                          1331
                                                         KA 11-00278

     Defendant failed to preserve for our review his contention that
the evidence is legally insufficient to support the conviction of
offering a false instrument for filing under count seven of the
indictment because in his motion for a trial order of dismissal he
asserted only that there was no showing that a false instrument was
filed (see People v Gray, 86 NY2d 10, 19). In any event, that
contention is without merit because “there is [a] valid line of
reasoning and permissible inferences which could lead a rational
person to the conclusion reached by [the factfinder] on the basis of
the evidence at trial” (People v Bleakley, 69 NY2d 490, 495).
Moreover, we reject defendant’s further contentions that the verdict
is against the weight of the evidence insofar as he was found guilty
of offering a false instrument for filing in the first degree under
count seven and grand larceny in the fourth degree under count six.
Viewing the evidence in light of the elements of those crimes in this
nonjury trial (see People v Danielson, 9 NY3d 342, 349), we conclude
that the verdict is not against the weight of the evidence (see
generally Bleakley, 69 NY2d at 495). We have considered defendant’s
remaining contentions and conclude that none requires reversal or
further modification of the judgment.




Entered:   February 8, 2013                     Frances E. Cafarell
                                                Clerk of the Court
