PEOPLE v. McFARLANE (2009)

Judgment, Supreme Court, New York County (Roger S. Hayes, J.), rendered June 26, 2007, convicting defendant, after a jury trial, of criminal possession of a forged instrument in the second degree (ten counts), loitering, and harassment in the second degree, and sentencing him to an aggregate term of 2 to 4 years, unanimously modified, as a matter of discretion in the interest of justice, to the extent of vacating the conviction of criminal possession of a forged instrument in the second degree under the first count of the indictment and dismissing that count, and otherwise affirmed.

 Defendant did not preserve his challenges to the sufficiency of the evidence, and we decline to review them in the interest of justice.   As an alternative holding, we also reject them on the merits.   As determined in People v. Mattocks, 12 N.Y.3d 326, 880 N.Y.S.2d 888, 908 N.E.2d 878 [2009], affg. 51 A.D.3d 301, 855 N.Y.S.2d 106 [2008], a MetroCard bent across its magnetic strip so as to obliterate the encoded data of the value remaining on the card falls within the statutory definition of a forged instrument.   Although bending a MetroCard with a zero value does not always result in a card that allows an extra ride, the People were not required to establish that the alteration was successful.   By way of analogy, a falsely altered check would still be a forgery even if the alteration were so unskillful as to be unlikely to fool anyone.   Furthermore, viewing the evidence in light of the court's charge to the jury, we find that the verdict was not against the weight of the evidence (see People v. Danielson, 9 N.Y.3d 342, 348-349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ).

 The People concede that the first count should be dismissed because, unlike the other counts involving value-based MetroCards, this count involved an expired, time-based, unlimited-ride MetroCard, and there was no evidence that it had been altered in a way that would evade its time limitation.

We have considered and rejected defendant's ineffective assistance claim.