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