Appeal from three judgments of the Justice Court of the Town of LaGrange, Dutchess County (Joseph L. Spiegel, J.), rendered December 6, 2005. The judgments convicted defendant, upon jury verdicts, of two counts of criminal possession of a forged instrument in the third degree and two charges of offering a false instrument for filing in the second degree, respectively.

ORDERED that the judgments of conviction are affirmed.

The People initially charged defendant, in two informations, with criminal possession of a forged instrument in the third degree (Penal Law § 170.20) and forgery in the third degree (Penal Law § 170.05), respectively. The People subsequently withdrew the latter charge and, via a felony complaint, charged defendant with offering a false instrument for filing in the first degree (Penal Law § 175.35), which charge was purportedly reduced (see CPL 180.50) to a charge of offering a false instrument for filing in the second degree (Penal Law § 175.30), a class A misdemeanor. The People subsequently charged defendant, in an information, with an additional charge of offering a false instrument for filing in the second degree and, in a fourth information, with two counts of criminal possession of a forged instrument in the third degree, one of which superseded the initial instrument which charged the offense. [*2]

On appeal, defendant argues that the felony complaint was not properly reduced (see CPL 180.50), that one of the accusatory instruments is duplicitous because it charged more than one offense, that the informations were facially defective, that he was denied his statutory right to a speedy trial, and that his motions for a change of venue and for the Justice Court's recusal should have been granted. For the reasons that follow, we reject these contentions and affirm the convictions.

Insofar as the claim that the procedures mandated by CPL 180.50 for the reduction of felony charges to misdemeanors were not followed implicates matters that are technical, the claim is not preserved for appellate review. Appeals to the Appellate Term from a court other than a court of record are taken via an affidavit of errors (CPL 460.10 [3] [1]) and the return thereon (CPL 460.10 [3] [d]; see People v Muhammad, 29 Misc 3d 143[A], 2010 NY Slip Op 52209[U] [App Term, 9th & 10th Jud Dists 2010]), by which return the appellate court is bound (People v Prior, 4 NY2d 70, 73 [1958]), and which is "conclusive as to all controverted matters within the [court's] knowledge, not only on the [appellate court] but on the defendant and the People as well" (id.). An issue not raised in an affidavit of errors (e.g. People v Ohberg, 6 Misc 3d 129[A], 2005 NY Slip Op 50060[U] [App Term, 9th & 10th Jud Dists 2005]; People v Macho, 5 Misc 3d 137[A], 2004 NY Slip Op 51557[U] [App Term, 9th & 10th Jud Dists 2004]; People v Williams, 5 Misc 3d 131[A], 2004 NY Slip Op 51345[U] [App Term, 9th & 10th Jud Dists 2004]) and in a return that "set[s] forth or summarizes [the] evidence, facts or occurrences in or adduced at the proceedings resulting in the judgment, sentence or order, which constitute the factual foundation for the contention[] alleged in the affidavit of errors" (CPL 460.10 [3] [d]), is not preserved for appellate review. Here, neither the affidavit of errors nor the return establishes any facts in relation to the sufficiency of the Justice Court's review of the felony complaint and its reduction thereof to a misdemeanor, and, as even the annotated complaint was initially not part of the appellate record, it could not be determined whether there had occurred deviations from the CPL 180.50 reduction procedures which were not merely "technical" and unpreserved but which represented jurisdictional errors requiring this court's intervention (see People v Tomassi, 35 Misc 3d 143[A], 2012 NY Slip Op 50940[U] [App Term, 9th & 10th Jud Dists 2012]; People v Henderson, 7 Misc 3d 126[A], 2005 NY Slip Op 50404[U] [App Term, 9th & 10th Jud Dists 2005]). Consequently, this court held the appeal in abeyance and remitted the matter to the Justice Court for a reconstruction hearing with respect to the reduction of the charge of offering a false instrument for filing in the first degree (Penal Law § 175.35) to an additional charge of offering a false instrument for filing in the second degree (People v Angel, 32 Misc 3d 135[A], 2011 NY Slip Op 51464[U] [App Term, 9th & 10th Jud Dists 2011]). A reconstruction hearing was held on January 20, 2012 (Stephen P. O'Hare, J.), and a report filed. The report states that the original of the felony complaint had been located and that both its author and the then-presiding justice had identified a hearing exhibit to be the original of the felony complaint. The justice also testified that the felony had been reduced to a misdemeanor upon the application of the prosecutor, who had stated that she did not believe that the People could prove the felony. The facts asserted in the instrument support the lesser charge, and the Justice Court's annotations thereon, namely the date of the reduction, the fact that the felony charge was replaced by an appropriate misdemeanor charge, the identity of the charge, as reduced, and that it was the justice's intention to reduce the felony charge to the [*3]misdemeanor, establish sufficient compliance with the requirements of the Criminal Procedure Law (see CPL 180.50 [1], [3] [a] [iii]; [b]), and whatever technical deviations there may have been from those requirements are not preserved for appellate review.

The informations were facially sufficient. To be sufficient on its face, an information must allege nonhearsay facts of an evidentiary nature (CPL 100.15 [3]) sufficient to establish, if true, every element of the offense charged and the defendant's commission thereof (CPL 100.40 [1] [c]; People v Kalin, 12 NY3d 225, 228-229 [2009]; People v Dumas, 68 NY2d 729, 731 [1986]). Given a "fair and not overly restrictive or technical reading" (People v Casey, 95 NY2d 354, 360 [2000]), the informations, and any supporting depositions and admissions attached thereto, provided defendant with sufficient notice to prepare a defense and to prevent him from being tried twice for the same offense (People v Dreyden, 15 NY3d 100, 103 [2010]), namely, that defendant had submitted three documents, in support of his employment application to the New York State Police, which were not written or signed by the purported authors and which defendant knew would become a part of State Police records (People v Armitt, 195 Misc 2d 879 [App Term, 9th & 10th Jud Dists 2003]). While "a defendant may not be imputed with knowledge that a document is forged solely by [his or] her possession or presentation of the instrument" (People v Mathis, 218 AD2d 817, 818 [1995]; see People v Green, 53 NY2d 651, 652 [1981]), "[g]uilty knowledge of forgery may be shown circumstantially by conduct and events" (People v Johnson, 65 NY2d 556, 561 [1985]), and the facts alleged, if proved, would support an inference of guilty knowledge. With respect to defendant's intent to deceive or defraud, while "a defendant's intent is the product of the invisible operation of his [or her] mind [it may] be determined, inevitably, on the basis of defendant's statements and conduct" (People v Samuels, 99 NY2d 20, 24 [2002] [internal quotation marks and citation omitted]; see also People v Bracey, 41 NY2d 296, 301 [1977]). Here, the facts alleged support the inferences that defendant submitted the documents because they were necessary to further defendant's application for employment with the State Police, that defendant did not have the necessary course credits to qualify for employment, and that the documents, alleged to prove defendant's employment qualifications, were not authored, authorized, or signed by the persons whose signatures appear thereon. Defendant's admissions established that he had possessed and uttered the documents and that he had not obtained the documents from the purported sources. His acknowledgment that they were forgeries, whatever his lay understanding of the term, is evidence of consciousness of guilt (see People v Swart, 273 AD2d 503, 505 [2000]; see also People v Valdes, 66 AD3d 925, 926 [2009]; Jerome Prince, Richardson on Evidence § 8-201 [Farrell 11th ed 1995]). Defendant's remaining challenges to the accusatory instruments are without merit, as the instruments were amply supported by the documentation attached thereto (see generally People v Jackson, 18 NY3d 738, 746 [2012]; People v M. Santulli, LLC, 29 Misc 3d 54, 57 [App Term, 9th & 10th Jud Dists 2010]).

As to defendant's claim that one of the accusatory instruments is duplicitous, neither in the trial motion, in the affidavit of errors, nor in the Justice Court's return, is there a reference to an accusatory instrument being duplicitous in that it charged more than one offense (see CPL 200.30 [1]; People v Wells, 7 NY3d 51 [2006]; People v Keindl, 68 NY2d 410 [1986]). A claim that a charge is duplicitous is subject to the preservation requirement (CPL 470.05 [2]; People v Saintilus, 74 AD3d 996 [2010]), and defendant's failure to assert the claim in the affidavit of [*4]errors bars appellate review (CPL 460.10 [3] [a], [d]; see People v Klein, 7 NY2d 264, 266 [1959]; People v Rozario, 20 Misc 3d 76, 78-79 [App Term, 9th & 10th Jud Dists 2008]; cf. People v Nicometi, 12 NY2d 428, 431 [1963]).

The record does not support defendant's claim that he was deprived of his statutory right to a speedy trial. In his motion to dismiss all of the accusatory instruments on that ground, defendant relied solely on the assertion that the People did not declare their readiness for trial within six months of his initial appearance (see CPL 30.30 [5] [b]; People v Farkas, 16 NY3d 190, 193 [2011]; People v Santos, 68 NY2d 859, 861 [1986]), and the People opposed, alleging adjournment dates and the reasons therefor, and arguing that, owing to delays attributable to the defense, only 69 days of statutory speedy trial time had elapsed prior to their valid declaration of readiness. The Justice Court denied the motion without reference to the facts other than that the readiness declaration was "timely." In its return, the court affirmed the propriety of the motion's denial, without additional recitation of facts. A return must assert matters "to the degree necessary for a proper determination of the appeal," and where a defendant fails to "dispute the factual sufficiency of the return" or "move to correct or amplify the record, the facts as set forth in the return [are] deemed conclusive as to all controverted matters within the [trial court's] knowledge'" (People v Sullivan, 27 Misc 3d 134[A], 2010 NY Slip Op 50749[U], *1-2 [App Term, 9th & 10th Jud Dists 2010], quoting People v Prior, 4 NY2d at 73). Thus, upon this record, there are no grounds to reject the conclusion that the People timely and properly declared their readiness for trial.

Defendant's venue motion, made to an improper court, was properly denied (see CPL 170.15 [3]). With respect to recusal, "as a matter of due process, [recusal] is required only where there exists a direct, personal, substantial or pecuniary interest in reaching a particular conclusion . . . or where a clash in judicial roles is seen to exist" (People v Alomar, 93 NY2d 239, 246 [1999]). "Absent a legal disqualification under Judiciary Law § 14, a Trial Judge is the sole arbiter of recusal" (People v Moreno, 70 NY2d 403, 405 [1987]; see also People ex rel. Smulczeski v Smulczeski, 18 AD3d 785, 786 [2005]; People v Washington, 11 Misc 3d 130[A], 2006 NY Slip Op 50312[U] [App Term, 9th & 10th Jud Dists 2006]), whose decision to deny a recusal motion "will not be lightly overturned" (Matter of Khan v Dolly, 39 AD3d 649, 650 [2007]). Defendant points to no statutory basis for the court's disqualification, and the available facts support no inference that there existed the sort of interest, pecuniary or otherwise, that would invite a particular outcome in this case (id. at 651; see also Matter of Montesdeoca v Montesdeoca, 38 AD3d 666, 667 [2007]).

Accordingly, the judgments of conviction are affirmed.

Nicolai, P.J., Iannacci and Tolbert, JJ., concur.
Decision Date: June 04, 2013