State of New York

Supreme Court, Appellate Division

Third Judicial Department
Decided and Entered: April 19, 2018 109240
________________________________

THE PEOPLE OF THE STATE OF

NEW YORK,
Respondent,
v MEMORANDUM AND ORDER

GILBERTO A. NUNEZ,
Appellant.
________________________________

Calendar Date: February 20, 2018

Before: Egan Jr., J.P., Lynch, Mulvey, Aarons and Pritzker, JJ.

__________

Miedel & Mysliwiec LLP, New York City (Florian Miedel of

counsel), for appellant.

David M. Hoovler, District Attorney, Goshen (Robert H.

Middlemiss of counsel), for respondent.

__________

Mulvey, J.

Appeal from a judgment of the County Court of Ulster County

(Williams, J.), rendered February 7, 2017, upon a verdict
convicting defendant of the crime of criminal possession of a
forged instrument in the second degree (two counts).

The charges in this case stem from a series of events

beginning in late 2010, when defendant commenced an extramarital
relationship with Linda Kolman. Soon thereafter, Kolman received
a host of text messages from a person who identified herself as
"Samantha" and claimed that she was having an affair with
Kolman's husband. When Kolman informed defendant about the
messages she had received, defendant stated that he was a
"special agent" with the Central Intelligence Agency (hereinafter
 -2- 109240

CIA) and offered to have a "friend" at the CIA look into the
matter. Approximately one week later, defendant provided Kolman
with an envelope containing a letter, on what purported to be
official CIA letterhead, which discussed the results of the
agent's investigation. Kolman initially questioned the letter's
credibility but, when defendant berated her for expressing those
doubts and asked for the letter back, Kolman apologized and chose
to keep it.

Nearly 11 months later, in November 2011, Kolman's husband

was found dead in his parked car outside of an exercise facility
in Ulster County. Toxicology reports subsequently revealed
significant amounts of midazolam, a sedative used primarily in
the medical and dental setting, in Kolman's husband's system.
Defendant, a dentist, was thereafter identified as a suspect in
the murder and search warrants were executed at his home and
place of business. During the search of one of defendant's
computers, several files were discovered depicting what purported
to be a CIA identification card in defendant's name and related
images. Around this same time, Kolman gave the CIA letter to her
lawyer who, in turn, turned that document over to police.

As a result of the extensive investigation that ensued,

defendant was charged by indictment with murder in the second
degree in connection with the death of Kolman's husband. The
indictment also charged defendant with two counts of criminal
possession of a forged instrument in the second degree related to
the CIA letter that he had provided to Kolman and the CIA
identification document recovered from his computer.1 Following
a jury trial, defendant was acquitted of the murder charge and
convicted of the two counts of criminal possession of a forged
instrument in the second degree, and he was sentenced to one year
in jail.

1
Defendant was also charged with various other crimes in
two separate indictments and, following a jury trial on each, he
was convicted as charged. His convictions in those matters are
the subject of two separate appeals (People v Nunez, ___ AD3d ___
[appeal No. 109282] [decided herewith]; People v Nunez, ___
AD3d___ [appeal No. 109283] [decided herewith]).
 -3- 109240

Defendant's sole contention on this appeal is that his

convictions are not supported by legally sufficient evidence and
are against the weight of the evidence. "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 [or she] utters or
possesses any forged instrument of a kind specified in [Penal
Law §] 170.10" (Penal Law § 170.25). Penal Law § 170.10, in
turn, applies to a written instrument that a person "falsely
makes, completes or alters" and "which is or purports to be, or
which is calculated to become or to represent if completed[,]
. . . [a] written instrument officially issued or created by a
public office, public servant or governmental instrumentality"
(Penal Law § 170.10 [3]). "A person 'falsely makes' a written
instrument when he [or she] makes . . . [an] instrument, which
purports to be an authentic creation of its ostensible maker
. . ., but which is not such . . . because . . . he [or she] did
not authorize the making . . . thereof" (Penal Law § 170.00 [4]).

Here, defendant does not dispute that the letter and

identification document found on his computer are written
instruments and that each falsely purports to have been issued
and/or created by the CIA. Instead, he argues that these
documents cannot constitute "forged instrument[s]" under article
170 of the Penal Law because no reasonable person would perceive
them to be authentic. We cannot agree. The identification
document found on defendant's computer has the text "Central
Intelligence Agency" across the top, bears the CIA seal and a bar
code, contains defendant's photograph and sets forth other
identifying information, such as defendant's name and purported
title. The fraudulent letter, while poorly worded in certain
respects, likewise contains indicia of authenticity; it appears
on what purports to be official CIA letterhead and is ostensibly
signed by a CIA agent. While the documents at issue here may
well be subject to question or even deemed somewhat amateurish to
the trained eye, the jury could nonetheless rationally conclude
that they "purport[ed] to be an authentic creation" of the CIA
(Penal Law § 170.00 [4]; see People v Mattocks, 12 NY3d 326, 332
[2009]; People v McFarlane, 63 AD3d 634, 635 [2009], lv denied 13
NY3d 837 [2009]; People v Prata, 47 Misc 2d 55, 56-57 [County Ct,
Westchester County 1965]; compare People v Carratu, 26 AD3d 514,
 -4- 109240

515-516 [2006], lv denied 7 NY3d 753 [2006]).

We are similarly unpersuaded by defendant's contention

that, with respect to the CIA identification document, the People
failed to present legally sufficient evidence that he possessed
such document with the intent to deceive. "Because intent is an
invisible operation of the mind [and] direct evidence is rarely
available" (People v Rodriguez, 17 NY3d 486, 489 [2011] [internal
quotation marks, brackets and citation omitted]), the requisite
"intent to defraud or deceive may be inferred from a defendant's
actions and surrounding circumstances" (People v Kocsis, 137 AD3d
1476, 1478-1479 [2016] [internal quotation marks and citations
omitted]; see People v Bracey, 41 NY2d 296, 301 [1977]; People v
Hughes, 111 AD3d 1170, 1172 [2013], lv denied 23 NY3d 1038
[2014]; People v Bickley, 99 AD3d 1113, 1113-1114 [2012], lv
denied 20 NY3d 1009 [2013]). Notably, the use or attempted use
of the forged instrument is not an element of the crime, nor does
Penal Law § 170.25 require that the contemplated use be imminent
(see People v Rodriguez, 17 NY3d at 490; People v Dallas, 46 AD3d
489, 491-492 [2007], lv denied 10 NY3d 809 [2008]).

Here, the indictment charged defendant with criminal

possession of the fraudulent CIA identification on February 7,
2012, the day his computer was seized, and it is undisputed that
defendant was not making use of this document at the time of its
recovery. Nevertheless, there are several facts that, when taken
together, form a sufficient basis for the permissible inference
that defendant possessed the forged CIA identification document
with the intent to defraud or deceive. Defendant's hard drive
was found to contain not only the forged CIA identification
document itself, but also other files depicting portions of text
and images depicted on the document – including his picture, the
CIA barcode and different versions of the CIA seal. From this,
the jury could have rationally determined that defendant retained
the identification document at issue with the intent to create
additional fraudulent identifications in the future. Moreover,
during her testimony concerning the CIA letter, Kolman explained
that defendant showed her a laminated CIA identification card
similar to the one depicted on the files recovered from his
computer and that defendant did so in an effort to convince her
that he was a CIA agent. Evidence was also presented that
 -5- 109240

defendant had offered a friend a sum of money to pose as the CIA

agent who was purportedly investigating the source of the text
messages that Kolman was receiving and that, to accomplish this
task, defendant provided this individual with a fake CIA
identification card and urged him to place his own picture on it.
Defendant's use of the fraudulent CIA identification document on
these prior occasions reinforces the inference of criminal intent
(see generally People v Ingram, 71 NY2d 474, 479-480 [1988];
People v Vallevaleix, 39 AD3d 372, 373 [2007], lv denied 9 NY3d
852 [2007]). Finally, an inmate at the jail where defendant was
confined prior to trial testified that defendant bragged about
using the fake CIA identification document to "spic[e] up his sex
life." While different inferences could be drawn from this
statement, the jury could have evaluated it to be supportive of a
finding that defendant possessed the identification document with
the intent to use it to deceive those, like Kolman, with whom he
seeks to have intimate relations. Viewed in the light most
favorable to the People (see People v Denson, 26 NY3d 179, 188
[2015]), this evidence provided a legally sufficient basis for
the jury to infer that defendant possessed the forged CIA
identification document with the requisite intent (see People v
Rodriguez, 17 NY3d at 489-491; People v Bickley, 99 AD3d at 1114;
People v Dallas, 46 AD3d at 491-492). Upon independently
evaluating the evidence in a neutral light and weighing the
relative strength of the inferences that may be drawn therefrom,
while giving due deference to the jury's credibility
determinations (see People v Danielson, 9 NY3d 342, 348-349
[2007]; People v Bleakley, 69 NY2d 490, 495 [1987]), we further
find that the verdict is supported by the weight of the evidence
(see People v Hughes, 111 AD3d at 1172; People v Bickley, 99 AD3d
at 1114).

Egan Jr., J.P., Lynch, Aarons and Pritzker, JJ., concur.

 -6- 109240

ORDERED that the judgment is affirmed.

ENTER:

Robert D. Mayberger
Clerk of the Court
 State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: April 19, 2018 109282
________________________________

THE PEOPLE OF THE STATE OF

NEW YORK,
Respondent,
v MEMORANDUM AND ORDER

GILBERTO A. NUNEZ,
Appellant.
________________________________

Calendar Date: February 20, 2018

Before: Egan Jr., J.P., Lynch, Mulvey, Aarons and Pritzker, JJ.

__________

Miedel & Mysliwiec LLP, New York City (Florian Miedel of

counsel), for appellant.

David M. Hoovler, District Attorney, Goshen (Robert H.

Middlemiss of counsel), for respondent.

__________

Mulvey, J.

Appeal from a judgment of the County Court of Ulster County

(Williams, J.), rendered February 7, 2017, upon a verdict
convicting defendant of the crimes of grand larceny in the third
degree, insurance fraud in the third degree and falsifying
business records in the first degree (five counts).

Defendant was charged by indictment with grand larceny in

the third degree, insurance fraud in the third degree and five
counts of falsifying business records in the first degree
stemming from allegations that he fraudulently obtained monetary
proceeds from a business owner's insurance policy. Following a
jury trial, defendant was convicted as charged and sentenced to
an aggregate prison term of 1 to 3 years, to be served
 -2- 109282

consecutively to the 1a to 4-year sentence imposed upon his

recent convictions in an unrelated matter (People v Nunez, ___
AD3d ___ [appeal No. 109283] [decided herewith]).1 He now
appeals.

By failing to object to County Court's Sandoval ruling

prior to the close of the Sandoval hearing, defendant did not
preserve his present challenge to that ruling for our review (see
People v Stacconi, 151 AD3d 1395, 1397 [2017]; People v Ramos,
129 AD3d 1205, 1207 [2015], lv denied 26 NY3d 971 [2015]; People
v Burch, 97 AD3d 987, 990 [2012], lv denied 19 NY3d 1101 [2012]).
Were we to consider the issue, we would find it to be without
merit. The prior convictions at issue were recent, not too
similar to the charged crimes and were probative of defendant's
credibility and willingness to place his own interests above
those of society (see People v Capers, 129 AD3d 1313, 1317
[2015], lv denied 27 NY3d 994 [2016]; People v Rockwell, 18 AD3d
969, 970-971 [2005], lv denied 5 NY3d 768 [2005]; People v Perry,
221 AD2d 736, 737-738 [1995], lv denied 87 NY2d 1023 [1996]).
Further, County Court properly precluded any mention of the
underlying facts in order to minimize any undue prejudice.
Inasmuch as County Court appropriately balanced the probative
value of the prior convictions against the risk of prejudice to
defendant, we would find no abuse of discretion in its Sandoval
ruling (see People v Keener, 152 AD3d 1073, 1074 [2017]; People v
Cooley, 149 AD3d 1268, 1270-1271 [2017], lvs denied 30 NY3d 979,
981 [2017]).

Similarly unpreserved for our review is defendant's

assertion that, in imposing the sentence, County Court improperly
considered the murder charge of which he had been acquitted
following a separate jury trial just months earlier (see CPL
470.05 [2]; People v Hooks, 148 AD3d 930, 931-932 [2017], lv

1
During the combined sentencing proceeding in which those
sentences were imposed, defendant was also sentenced to a
concurrent term of one year in jail upon his conviction of two
counts of criminal possession of a forged instrument in the
second degree (People v Nunez, ___ AD3d ___ [appeal No. 109240]
[decided herewith]).
 -3- 109282

denied 29 NY3d 1081 [2017]; People v Guerrero, 129 AD3d 1102,

1103 [2015], lv denied 26 NY3d 968 [2015]). In any event, the
court twice confirmed at sentencing that it would not consider
the murder victim's death in determining defendant's sentence.
Instead, County Court expressly stated that the sentence imposed
was based on defendant's deceptive and fraudulent conduct, as
well as his lack of remorse. Viewing County Court's comments as
a whole, we would find that "[t]he court did not base its
sentence on a crime of which defendant had been acquitted, but
rather sentenced him based on all the relevant facts and
circumstances surrounding the crime[s] of which he was convicted"
(People v Lipford, 129 AD3d 1528, 1531 [2015] [internal quotation
marks, ellipsis and citation omitted], lvs denied 26 NY3d 1040,
1041 [2015]; see People v Coleman, 151 AD3d 1385, 1388-1389
[2017], lv denied 29 NY3d 1125 [2017]; People v Douglass, 115
AD3d 1055, 1057-1058 [2014]; People v Neish, 232 AD2d 744, 747
[1996], lv denied 89 NY2d 927 [1996]; People v La Veglia, 215
AD2d 836, 837 [1995]).

Finally, we are unpersuaded by defendant's contention that

his sentence is harsh and excessive. Defendant received the
minimum sentence allowable for these crimes (see Penal Law
§ 70.00 [2] [d], [e]) and it was certainly within County Court's
discretion to direct that this sentence run consecutively to that
imposed upon defendant's unrelated convictions (see Penal Law
§ 70.25 [1]). Based upon our review of the record and after
consideration of all relevant factors, we perceive neither an
abuse of discretion nor any extraordinary circumstances
warranting a modification of the consecutive sentence imposed
(see People v March, 122 AD3d 1001, 1003 [2014]; People v
Douglass, 115 AD3d at 1057-1058; People v Stumbrice, 194 AD2d
931, 932 [1993], lv denied 82 NY2d 727 [1993]).

Egan Jr., J.P., Lynch, Aarons and Pritzker, JJ., concur.

 -4- 109282

ORDERED that the judgment is affirmed.

ENTER:

Robert D. Mayberger
Clerk of the Court
 State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: April 19, 2018 109283
________________________________

THE PEOPLE OF THE STATE OF

NEW YORK,
Respondent,
v MEMORANDUM AND ORDER

GILBERTO A. NUNEZ,
Appellant.
________________________________

Calendar Date: February 20, 2018

Before: Egan Jr., J.P., Lynch, Mulvey, Aarons and Pritzker, JJ.

__________

Miedel & Mysliwiec LLP, New York City (Florian Miedel of

counsel), for appellant.

David M. Hoovler, District Attorney, Goshen (Nicholas D.

Mangold of counsel), for respondent.

__________

Mulvey, J.

Appeal from a judgment of the County Court of Ulster County

(Williams, J.), rendered February 7, 2017, upon a verdict
convicting defendant of the crimes of perjury in the second
degree, offering a false instrument for filing in the first
degree and making an apparently sworn false statement in the
first degree.

Defendant was charged by indictment with perjury in the

second degree, offering a false instrument for filing in the
first degree and making an apparently sworn false statement in
the first degree based upon the allegation that he falsely stated
on a pistol permit application that he had not been terminated
from the armed forces "for cause." Following a jury trial,
 -2- 109283

defendant was convicted as charged and sentenced to an aggregate

prison term of 1a to 4 years.1 He now appeals.

We are unpersuaded by defendant's contention that the

verdict is against the weight of the evidence. To convict
defendant of perjury in the second degree and making an
apparently sworn false statement in the first degree, the People
were required to prove, insofar as is relevant here, that
defendant made a false statement in his application for a pistol
permit and that such statement was "made with intent to mislead a
public servant in the performance of his [or her] official
functions" (Penal Law §§ 210.10, 210.40). Similarly, defendant's
conviction of offering a false instrument for filing in the first
degree required proof that the statement in defendant's
application was both false and made "with intent to defraud the
state or any political subdivision" (Penal Law § 175.35 [1]).

The undisputed evidence at trial established that, less

than eight months after enlisting in the United States Marines,
defendant left his appointed place of duty without authorization
in violation of the Uniform Code of Military Justice. Nearly
three years later, defendant was apprehended by civil authorities
and returned under guard to the Marines. Thereafter, defendant
submitted a written request for separation from the armed forces
in lieu of a trial by court martial. In that request, defendant
acknowledged that he was "guilty of the offenses alleged" and
that he had been advised of the consequences and loss of benefits
resulting from a discharge "under other than honorable
conditions," including the deprivation of virtually all rights
enjoyed by a veteran. He further acknowledged that, as a result
of receiving a discharge under other than honorable conditions,
he "may encounter substantial prejudice in civilian life in

1
Defendant was sentenced for the instant crimes during a
combined sentencing proceeding in which he was also sentenced
upon his convictions for crimes charged under two unrelated
indictments. Defendant's convictions in those matters are the
subject of two separate appeals (People v Nunez, ___ AD3d ___
[appeal No. 109240] [decided herewith]; People v Nunez, ___ AD3d
___ [appeal No. 109282] [decided herewith]).
 -3- 109283

situations wherein . . . the character of discharge therefrom may

have a bearing." Defendant's request for separation was granted,
and he was formally discharged under other than honorable
conditions. Upon his discharge, defendant was issued a
certificate of release or discharge from active duty, which
likewise set forth that his discharge from the Marines was under
other than honorable conditions and was due to conduct triable by
court martial. Defendant sought review of his discharge status
approximately four years later, but the Naval Discharge Review
Board denied the request and affirmed defendant's discharge.

Even assuming that a different verdict would have been

reasonable, upon independently evaluating the evidence and
weighing the strength of the conflicting inferences that may be
drawn therefrom (see People v Danielson, 9 NY3d 342, 348 [2007];
People v Bleakley, 69 NY2d 490, 495 [1987]), we cannot say that
the jury failed to give the evidence the weight that it should
have been accorded. In light of the uncontested proof that
defendant's discharge was the result of his unauthorized and
unlawful leave of absence, and given the acknowledgments made by
defendant in his request for separation concerning his guilt as
well as the nature and consequences of a discharge "under other
than honorable conditions," the jury could reasonably conclude
that defendant falsely answered "no" to the question asking
whether he had been discharged from the armed forces for cause
and that he knew this answer to be false. Further, defendant's
intent to mislead and/or defraud can be readily inferred from the
act itself, as well as his conduct and the surrounding
circumstances (see People v Bracey, 41 NY2d 296, 301 [1977];
People v Rodriguez, 71 AD3d 450, 452 [2010], affd 17 NY3d 486
[2011]; People v Swain, 309 AD2d 1173, 1174 [2003], lv denied, 1
NY3d 581 [2003]; People v Montroy, 225 AD2d 913, 913-914 [1996]).
Accordingly, we are satisfied that defendant's convictions are
supported by the weight of the evidence.

Defendant failed to preserve for our review his claim that,

in imposing the sentence, County Court improperly considered the
murder charge of which he had been acquitted following a separate
jury trial just months earlier (see CPL 470.05 [2]; People v
Hooks, 148 AD3d 930, 931-932 [2017], lv denied 29 NY3d 1081
[2017]; People v Guerrero, 129 AD3d 1102, 1103 [2015], lv denied
 -4- 109283

26 NY3d 968 [2015]). In any event, as we explained in a

companion appeal (People v Nunez, ___ AD3d ___ [appeal No.
109282] [decided herewith]), the record reflects that County
Court "did not base its sentence on a crime of which defendant
had been acquitted, but rather sentenced him based on all the
relevant facts and circumstances surrounding the crime[s] of
which he was convicted" (People v Lipford, 129 AD3d 1528, 1531
[2015] [internal quotation marks, ellipsis and citation omitted],
lvs denied 26 NY3d 1040, 1041 [2015]; see People v Coleman, 151
AD3d 1385, 1388-1389 [2017], lv denied 29 NY3d 1125 [2017];
People v Douglass, 115 AD3d 1055, 1057-1058 [2014]).

Finally, we are unpersuaded that County Court's imposition

of the maximum sentence was harsh and excessive. Considering,
among other things, the pattern of deceptive and fraudulent
conduct reflected in defendant's current and prior convictions,
we find no abuse of discretion or extraordinary circumstances
that would warrant modification of the sentence in the interest
of justice (see People v March, 122 AD3d 1001, 1003 [2014];
People v Douglass, 115 AD3d at 1057-1058; People v Stumbrice, 194
AD2d 931, 935 [1993], lv denied 82 NY2d 727 [1993]).

Egan Jr., J.P., Lynch, Aarons and Pritzker, JJ., concur.

ORDERED that the judgment is affirmed.

ENTER:

Robert D. Mayberger
Clerk of the Court