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