People v. Kirby (Sadiq)

People v Kirby (2022 NY Slip Op 51015(U)) [*1] People v Kirby (Sadiq) 2022 NY Slip Op 51015(U) [76 Misc 3d 138(A)] Decided on October 19, 2022 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports. Decided on October 19, 2022 SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT PRESENT: Hagler, J.P., Tisch, Michael, JJ. 570573/19 The People of the State of New York, Respondent, against Sadiq Kirby, Defendant-Appellant. Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (Richard A. Tsai, J.), rendered December 21, 2018, convicting him, upon a plea of guilty, of criminal possession of a forged instrument in the third degree, and imposing sentence. Per Curiam. Judgment of conviction (Richard A. Tsai, J.), rendered December 21, 2018, affirmed. In view of defendant's knowing waiver of his right to prosecution by information, the accusatory instrument only had to satisfy the reasonable cause requirement (see People v Dumay, 23 NY3d 518, 522 [2014]). So viewed, the accusatory instrument was jurisdictionally valid because it described facts of an evidentiary nature establishing reasonable cause to believe that defendant was guilty of criminal possession of a forged instrument in the third degree (see Penal Law § 170.20). Defendant's possession of a forged instrument was satisfied by allegations that one of the student MetroCards in his pocket was bent in a manner that the officer knew from his training and experience "can alter a card with zero balance so that it will still provide a ride to the user" (see People v Mattocks, 12 NY3d 326, 330 [2009]; People v McFarlane, 63 AD3d 634, 635 [2009], lv denied 13 NY3d 837 [2009]). Contrary to defendant's present contention, his intent to defraud can be inferred from his presence in a subway station, near the turnstiles, where he approached two individuals while making a side-to-side swiping motion with his hand, while possessing a student MetroCard bent along its magnetic strip (see People v Johnson, 65 NY2d 556 [1985]; People v Bracey, 41 NY2d 296, 301 [1977]). In any event, the only relief which the defendant requests is dismissal of the accusatory instrument rather than vacatur of the plea and remand on the remaining charges, and he expressly requests that this Court affirm the conviction if it does not grant a dismissal. Because dismissal would not be appropriate, we affirm on this basis as well (see People v Teron, 139 AD3d 450 [2016]). All concur THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. Clerk of the Court Decision Date: October 19, 2022