People v. Levitan, 49 N.Y.2d 87 (1980)

Forgery requires that the instrument be falsely made, completed, or altered by someone other than the ostensible maker or drawer, or their authorized agent; a false statement within a genuinely made instrument does not constitute forgery.

Summary

Molly Levitan and her co-defendants were convicted of forgery for signing and recording deeds transferring property they did not own, intending to purchase the land at a subsequent tax sale. The New York Court of Appeals reversed the convictions, holding that Levitan’s actions did not constitute forgery because she signed her own name and made no pretense of being someone else. The court emphasized that forgery requires a false making of the instrument itself, not merely false statements within a genuinely executed document. The key distinction is between an instrument falsely made and one containing misrepresentations unrelated to the maker’s identity.

Facts

Molly Levitan signed three deeds purporting to transfer real property in Suffolk County to entities controlled by her co-defendants. She signed her own name to each deed, both as an individual grantor and as an officer of corporate grantors. Neither Levitan nor the corporate grantors held title to the property. The true owners were unknown, and the land was not on the tax assessment rolls. The defendants intended to record the deeds, have the land placed on the assessment rolls under their entities’ ownership, default on taxes, and then purchase the land at a tax sale.

Procedural History

The defendants were convicted of forgery in the second degree at the trial court level. The Appellate Division affirmed the convictions. The New York Court of Appeals granted leave to appeal and reversed the Appellate Division’s order, dismissing the indictments.

Issue(s)

Whether signing and recording deeds transferring property the signer does not own, under the signer’s own name and without pretense of being another, constitutes forgery in the second degree under New York Penal Law § 170.10?

Holding

No, because forgery requires a false making, completing, or altering of a written instrument, meaning the instrument is made by someone other than, or unauthorized by, the ostensible maker; merely including false information in a genuinely made instrument does not constitute forgery.

Court’s Reasoning

The Court of Appeals emphasized the statutory definition of forgery in the second degree, requiring a “false making, completing, or altering” of a written instrument. The court then analyzed Penal Law § 170.00, which defines these terms. A person “falsely makes” an instrument when they create a document that appears to be authentic but is not, because the ostensible maker is fictitious or did not authorize the making. Similarly, one “falsely completes” or “falsely alters” an instrument only without the authority of the ostensible maker. The court noted that traditionally, and under the current penal law, forgery requires that the actual maker be someone other than the ostensible maker or be unauthorized to act for them. The court distinguished the present case from situations where one commits forgery by signing one’s own name but in a way that deceives others into believing the signer is a third party. The court rejected the People’s argument that the true owner of the land should be considered the ostensible drawer of the deeds. Instead, the court found that Molly Levitan was both the actual and ostensible drawer. The court stated, “Actually, the ostensible drawer is the person who, from the face of the instrument, would appear to be its drawer, and not the person who in fact has the power to create such an instrument.” The court concluded that while the deeds contained false information (i.e., regarding ownership), they were not falsely made. Because Levitan signed her own name and made no pretense of being anyone else, she did not commit forgery. The court concluded: “Although the deeds may have contained false information, they were not falsely made.”