I respectfully disagree with the conclusion of my colleagues that defendant’s signing of the name of the victim on the checks at issue did not constitute the “ ‘false[ ] mak[ing]’ ” of an instrument within the meaning of Penal Law § 170.00 (4). I conclude, as a matter of law, that the power of attorney executed by the victim did not authorize defendant to sign the victim’s name to the subject checks and to purport such instruments and the signatures thereupon to be authentic creations of the victim (see id.). Therefore, I dissent in part.
Defendant concedes that he signed the victim’s name to each check at issue. The victim testified at trial that she did not give defendant permission to sign her name on the checks. Therefore, *1371“the People established in the first instance that [the checks were] forged instrument[s]. The burden of explanation then fell upon the defendant... to explain [that] the instrument[s] . . . had been executed by authority” (People v Shanley, 132 App Div 821, 829 [1909], affd 196 NY 574 [1909]).
Initially, I conclude as a matter of law that the power of attorney did not authorize defendant to make and present the checks at issue as authentic or genuine (see id. at 830). Therefore, the instruments were forgeries inasmuch as they “purported to be what [they were] not, [i.e.], the personal act[s] of [the victim]” in signing each check (id.). The checks at issue bore no indication that defendant was acting in a representative capacity or under the authority of a power of attorney. Indeed, by signing the victim’s name to the checks without any such indication and presenting the checks to third-party banking institutions, defendant denied those institutions the right and opportunity to inquire into the validity of his authority or the instrument under which he claimed such authority (see People v Cunningham, 2 NY3d 593, 598 n 4 [2004] [“4 William Blackstone, Commentaries on the Laws of England, at 245 (1769) (defining forgery as ‘the fraudulent making or alteration of a writing to the prejudice of another [person’s] right’ ”)]). Upon the drawing and presentment of each check that defendant falsely purported to be authentically signed by the victim, defendant “ ‘made and uttered a false instrument [that] was an imitation and not what it purported to be’ ” (Shanley, 132 App Div at 831). I therefore conclude that defendant’s conviction of criminal possession of a forged instrument in the second degree under the 40 counts of the indictment challenged by defendant is supported by legally sufficient evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]).
Further, “[i]t was a question of fact, under the circumstances of this case, whether the defendant did act under [the] power of attorney, irrespective of the question whether as [a] matter of law it conferred upon him authority to do what he did do” (Shanley, 132 App Div at 830). The jury obviously concluded that defendant did not act under the power of attorney— regardless of any authority that it may have conferred upon him. Viewing the evidence in light of the elements of the crimes as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), I conclude that the verdict is not against the weight of the evidence (see generally Bleakley, 69 NY2d at 495).
I agree with my colleagues that defendant’s remaining contention in his main brief, i.e., that County Court erred in answering a juror question prior to deliberations without first consult*1372ing the parties, is not preserved for our review (see CPL 470.05 [2]) and that, in any event, defendant’s contention is without merit (see CPL 310.30; People v Contrero, 232 AD2d 213 [1996], lv denied 89 NY2d 1090 [1997]). I also agree that defendant was entitled to a hearing on the amount of restitution (see People v Gazivoda, 68 AD3d 1346, 1347 [2009], lv denied 14 NY3d 840 [2010]). Therefore, I would modify the judgment by vacating the amount of restitution ordered and, as modified, I would affirm the judgment and remit the matter to County Court for a hearing to determine the amount of restitution. Present— Smith, J.P, Peradotto, Garni, Sconiers and Martoche, JJ.