The People v. Mujahid Muhammad
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This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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The People &c.,
Respondent,
v.
Mujahid Muhammad,
Appellant.
Peter Theis, for appellant.
Gina Mignola, for respondent.
PIGOTT, J.:
Defendant was driving a borrowed car when he was
stopped by a police officer for a nonoperational headlight.
He
could not produce a driver's license and gave inconsistent
responses when asked his itinerary.
The officer frisked
defendant and found a wallet containing a North Carolina ID card,
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which he used to check defendant's driving history.
Upon
learning that defendant's New York driver's license had been
suspended, the officer arrested defendant for driving with a
suspended license, and took him to the police precinct.
At the precinct, the same police officer searched
defendant and vouchered the belongings he was carrying.
In the
course of inventorying the automobile, the officer discovered two
fake credit cards, as well as a number of documents belonging to
the defendant "spread out all over the car."
One credit card was
found in a jacket on the backseat of the car, the other was found
in the side pocket of the driver's door of the vehicle.
Defendant was charged with two counts of criminal possession of a
forged instrument in the second degree (Penal Law § 170.25).
At trial, representatives of the credit card companies
testified that the bank cards were forgeries.
At the end of the
People's case, defendant moved for a trial order of dismissal on
legal insufficiency grounds, arguing, in essence, that the People
had failed to prove beyond a reasonable doubt that defendant had
knowing possession of the bank cards.
Supreme Court denied
defendant's motion.
At the conclusion of the trial, Supreme Court charged
the jury with the statutory definition of second-degree criminal
possession of a forged instrument, and also instructed the jury
that to possess means "to have actual physical possession or to
exert a knowing dominion or control over," explaining that "a
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person has tangible property in his constructive possession when
that person exercises a level of control over the area in which
the property is found . . . sufficient to give him the ability to
use or dispose of the property."
Supreme Court further instructed the jury, in
accordance with Penal Law § 170.27, that "if the People have
proven beyond a reasonable doubt that the defendant possessed two
or more forged instruments that purport to be credit cards, you
may infer but are not required to infer from that fact that the
defendant possessed them with knowledge that they were forged and
with intent to defraud, deceive or injure another."
Defense counsel challenged the jury charge on the
ground that it did not adequately convey to the jury that the
People must prove knowing possession.
Supreme Court declined to
modify the jury charge, and the case was submitted to the jury.
The jury found defendant guilty of both counts.
Defendant moved to set aside the verdict, arguing that the
evidence was legally insufficient to establish that his
possession was knowing and that Supreme Court's jury charge on
possession amounted to reversible error.
Supreme Court denied
the motion.
The Appellate Division affirmed Supreme Court's
judgment, holding that "the circumstances, including the
proximity of the cards that can reasonably be inferred to be
defendant's property, supported the conclusion that defendant was
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aware he possessed the cards" (66 AD3d 424), and that "[t]aken as
a whole, the court's charge properly conveyed to the jury that
the People were required to prove defendant knew he possessed the
credit cards" (id.).
A Judge of this Court granted defendant
leave to appeal, and we now affirm.
"A person is guilty of criminal possession of a forged
instrument in the second degree when, with knowledge that it is
forged and with intent to defraud, deceive or injure another, he
utters or possesses [a] forged instrument ..." (Penal Law §
170.25).
Possession within the meaning of the second-degree
criminal possession of a forged instrument statute, must, like
possession in the criminal possession of a weapon context,
involve awareness of the possession (see People v Saunders, 85
NY2d 339, 341-342 [1995]).
In short, "the mental culpability
required for a crime of possession is, at the very least,
awareness of the possession" (People v Sanchez, 110 AD2d 665 [2d
Dept 1985]).
Knowing possession of tangible property may in the
appropriate circumstances be inferred from evidence showing that
the defendant had the property in his physical possession, or
that he "exercised 'dominion or control' over the property by a
sufficient level of control over the area in which the [property]
is found or over the person from whom the [property] is seized"
(People v Manini, 79 NY2d 561, 573 [1992]).
Dominion or control
is necessarily knowing, and such "constructive possession" may
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qualify as knowing possession (see Saunders, 85 NY2d at 344).
With respect to defendant's sufficiency challenge, we
view the evidence adduced at trial in the light most favorable to
the People.
A rational trier of fact could have inferred beyond
a reasonable doubt from the evidence -- including the fact that
defendant had strewn his belongings through the car he was
driving -- that defendant must have known the cards were in the
car.
Defendant also challenges the jury charge as failing to
convey that knowing possession of the cards was required.
In
fact, however, Supreme Court, when defining "to possess" -- as
that term is used in the definition of second-degree criminal
possession of a forged instrument -- accurately instructed the
jury that "to possess" means to have physical possession of or
"to exert a knowing dominion or control over [the forged
instrument]" (emphasis added).1
Supreme Court's jury charge,
which in this manner expressly conveyed the requirement that
possession be knowing, was not in error merely because it failed
to append the word "knowing" each time the word "possession" was
used, for example in the explanation of the Penal Law § 170.27
1
In adding the word "knowing" before "dominion or control
over," Supreme Court went further, by way of clarification, than
the Criminal Jury Instructions recommend. The CJI charge merely
states that "POSSESS means to have physical possession or
otherwise to exercise dominion [or] control over tangible
property" (CJI 2d [NY] Penal Law § 170.25), echoing the statutory
definition (see Penal Law 10.00 [8]).
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Indeed, such a charge might in this case have run
the risk of confusing the jury, by suggesting that it could not
infer the requisite knowing possession from constructive
possession.
A reasonable juror, hearing the whole charge, would
have understood that the Penal Law § 170.27 presumption -- that a
person who possesses two or more forged instruments purporting to
be credit or debit cards knows that they are forged and intends
to defraud, deceive or injure another -- only applies if the
person knowingly possesses the cards.
Accordingly, the order of the Appellate Division should
be affirmed.
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Order affirmed. Opinion by Judge Pigott. Chief Judge Lippman
and Judges Ciparick, Graffeo, Read, Smith and Jones concur.
Decided February 17, 2011
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