New York Law Review

Tag: forgery

  • People v. McGovern, 2024 NY Slip Op 05242 (2024): Consecutive Sentences Permitted for Larceny and Forgery Based on Separate Acts

    People v. McGovern, 2024 NY Slip Op 05242 (2024)

    Consecutive sentences for larceny and forgery are permissible when the acts constituting each crime are distinct and not committed through a single act or omission, or through an act or omission that is a material element of the other.

    Summary

    The New York Court of Appeals addressed the legality of consecutive sentences for larceny and forgery. McGovern was convicted of third-degree larceny and second-degree forgery for a scheme involving the theft of tires through false pretenses, including impersonation and forging a signature on an invoice. The court affirmed the consecutive sentences, holding that the acts constituting larceny and forgery were separate and distinct, satisfying the requirements of Penal Law § 70.25(2). The court clarified that the forgery, signing of the invoice, was not a necessary element of the larceny, which occurred when McGovern obtained possession of the tires. This case highlights the importance of examining the elements of each crime and the specific acts involved to determine whether consecutive sentences are permissible.

    Facts

    Exxpress Tire Delivery Company received a telephone order for tires from a person impersonating Joe Basil Jr. The tires were to be delivered the next day. Upon arrival at the delivery location, the driver contacted “Joe Junior” per the invoice instructions and was directed to a different site. The driver met McGovern, who claimed to be a Basil employee. McGovern loaded the tires and signed the invoice as “Joe Basil.” Joe Basil Chevrolet was billed, but they contested the charge. The real Joe Basil Jr. denied ordering the tires or signing the invoice. McGovern was subsequently convicted of third-degree larceny and second-degree forgery.

    Procedural History

    McGovern was convicted after a jury trial of, among other counts, third-degree larceny and second-degree forgery, and was sentenced to consecutive sentences. The trial court ruled that consecutive sentencing was warranted because the crimes were separate and distinct. The Appellate Division affirmed the convictions. The Court of Appeals granted leave to appeal, specifically to address the legality of consecutive sentences.

    Issue(s)

    1. Whether the consecutive sentences for larceny and forgery were unlawful under Penal Law § 70.25(2) because the crimes were based on the same transaction and arose from a singular act.

    Holding

    1. No, because the acts constituting larceny and forgery were distinct, the consecutive sentences were lawful.

    Court’s Reasoning

    The court cited Penal Law § 70.25(2), which states that consecutive sentences are not permitted if the offenses were committed through a single act or omission, or through an act or omission that is a material element of the other. The court distinguished between a “single act” and the material elements of the crimes. The court found the single-act prong was not satisfied as the actus reus of the crimes were not a single inseparable act. The act of taking the tires was separate from the act of forging the invoice. The court determined that forgery was not a necessary element of larceny by false pretenses, as larceny can be accomplished through various false representations. The court determined that the material elements prong was not satisfied, since larceny does not require forgery in its definition. The court emphasized that the elements of each crime must be examined to determine the legality of consecutive sentences.

    Practical Implications

    This case clarifies the application of Penal Law § 70.25(2) regarding consecutive sentences in cases involving multiple crimes arising from a single transaction. Prosecutors and defense attorneys should carefully analyze the specific acts constituting each crime to determine whether they are separate or part of a single act or omission. It reinforces the importance of distinguishing between the *actus reus* of the crimes and the statutory definitions of their elements. Lawyers need to assess whether the elements of one crime are necessarily components of the other. This case underscores that crimes are often considered separate when their commission involves successive acts, even within a short time frame and a common scheme. This ruling allows for consecutive sentencing in situations where different acts are involved in the commission of two crimes, even if the crimes are related.

  • People v. McGovern, 2024 NY Slip Op 05242 (2024): Consecutive Sentences Permissible for Larceny and Forgery if Not Part of a Single Act

    People v. McGovern, 2024 NY Slip Op 05242 (2024)

    Consecutive sentences for larceny and forgery convictions are permissible when the crimes are not committed through a single act or an act that constitutes one offense and a material element of the other.

    Summary

    In People v. McGovern, the New York Court of Appeals addressed the legality of consecutive sentences imposed on a defendant convicted of larceny and forgery. The court held that the consecutive sentencing was proper because the larceny and forgery were not committed through a single act or omission, nor did one act constitute one offense and a material element of the other. The court’s decision emphasized that under Penal Law § 70.25 (2), consecutive sentences are permissible unless the crimes arise from a single act or the act constituting one offense is also a material element of the other. The court found that the larceny and forgery were distinct acts, even though they were part of a single scheme, and that the statutory elements of each crime were separate.

    Facts

    The defendant, McGovern, orchestrated a scheme to steal tires through false representations. He placed a phone order for tires, falsely identified himself, and directed the delivery driver to an alternate location. Upon delivery, McGovern falsely signed the invoice as Joe Basil. The Exxpress Tire Delivery Company received a telephone order from Basil Ford Truck Center by someone identifying themselves as Joe Basil Jr., for next-day delivery. While en route to deliver the tires, the driver called a number listed on the invoice and was told to take the tires to a business adjacent to the Basil Ford Truck Center. McGovern signed the invoice as “Joe Basil.” Joe Basil Chevrolet contested the bill, explaining that it never received the tires. The real Joe Basil Jr. testified that it was not his voice on the phone order and that he never authorized a purchase of tires. The defendant was subsequently convicted of third-degree larceny and second-degree forgery.

    Procedural History

    The defendant was convicted in the trial court of, among other counts, third-degree larceny and second-degree forgery, and was sentenced to consecutive prison terms. The Appellate Division affirmed the judgment of conviction. The Court of Appeals granted the defendant leave to appeal, specifically to address the legality of the consecutive sentences.

    Issue(s)

    1. Whether consecutive sentences were lawful under Penal Law § 70.25 (2), given that the larceny and forgery counts arose from the same transaction.

    Holding

    1. No, because the crimes were not committed through a single act or an act that constituted one offense and a material element of the other, as required for concurrent sentences under Penal Law § 70.25 (2).

    Court’s Reasoning

    The Court of Appeals analyzed Penal Law § 70.25 (2), which mandates concurrent sentences when multiple offenses are committed through a single act or an act that constitutes one offense and a material element of the other. The court found that neither condition was met. The court reasoned that the act of larceny was completed when the driver loaded the tires onto the defendant’s trailer, which preceded the act of forgery (signing the invoice). Therefore, the crimes were not committed through a “single act.” In comparing the statutory elements of the crimes, the court determined that forgery was not a necessary element of larceny by false pretenses, as larceny could be accomplished through various misrepresentations. Therefore, neither offense was a material element of the other. The court emphasized that the comparison of statutory definitions does not consider the specific factual circumstances of the crime, and the fact that the defendant made several false statements did not change the court’s analysis.

    Practical Implications

    This case reinforces the importance of carefully analyzing the elements of different crimes when determining sentencing. Attorneys should be aware that even if multiple crimes arise from a single scheme, consecutive sentences may be permissible if the acts constituting the crimes are distinct and if the statutory elements do not overlap such that one is a material element of the other. The court’s focus on the statutory definitions of the crimes, rather than the specific factual details, highlights the need to understand the legal requirements of each offense. This case can inform sentencing arguments by prosecutors seeking consecutive terms, and by defense attorneys seeking concurrent terms.

  • People v. Lynch, 25 N.Y.3d 333 (2015): Statutory Double Jeopardy and “Same Criminal Transaction”

    25 N.Y.3d 333 (2015)

    Under New York’s Criminal Procedure Law, successive prosecutions are barred by double jeopardy if they arise from the “same criminal transaction,” which is defined as conduct comprising two or more acts that are closely related in time, circumstance, or criminal purpose.

    Summary

    The defendant was initially prosecuted in Westchester County for possessing a forged non-driver identification card and subsequently in Suffolk County for forgery and identity theft related to the application for that same card. The New York Court of Appeals addressed whether these two prosecutions violated the statutory double jeopardy protections, finding that they involved different criminal transactions. The court applied the statutory definition of “criminal transaction,” focusing on whether the acts were closely related in time, circumstance, or criminal purpose. Because the offenses in Westchester and Suffolk occurred months apart and involved different forged instruments, the Court held that they did not constitute the same criminal transaction, thereby upholding the second prosecution.

    Facts

    In June 2009, the defendant used false information to apply for a non-driver identification card in Suffolk County, falsely representing himself as his son. In November 2009, the defendant was stopped by police in Westchester County and produced the forged non-driver ID. He was charged with various offenses related to the forged instrument. He pleaded guilty to a reduced charge. Subsequently, in August 2010, a Suffolk County grand jury indicted the defendant on charges including criminal possession of a forged instrument, forgery, identity theft, and offering a false instrument for filing based on the application for the non-driver ID. The defendant moved to dismiss the Suffolk County charges on statutory double jeopardy grounds, which was denied by the trial court and affirmed by the Appellate Division.

    Procedural History

    The defendant was initially prosecuted in Westchester County, resulting in a guilty plea to a reduced charge. Subsequently, he was indicted in Suffolk County. The trial court denied the defendant’s motion to dismiss the Suffolk County indictment based on double jeopardy. The Appellate Division affirmed the trial court’s decision, leading to an appeal to the New York Court of Appeals.

    Issue(s)

    Whether the subsequent prosecution in Suffolk County was barred by double jeopardy under New York’s Criminal Procedure Law because it involved the same criminal transaction as the previous prosecution in Westchester County.

    Holding

    No, because the two prosecutions did not involve the same criminal transaction.

    Court’s Reasoning

    The Court applied the statutory definition of “criminal transaction” under CPL 40.10(2). This definition includes conduct comprised of two or more acts that are either (a) closely related in time and circumstance to constitute a single criminal incident, or (b) so closely related in criminal purpose to constitute elements of a single criminal venture. The court found that the offenses in the two counties were not part of the same criminal transaction because:

    1. The offenses occurred months apart.
    2. The Westchester County offense involved possession of a forged non-driver ID card, while the Suffolk County offenses involved the application form used to obtain it.
    3. The Court distinguished the case from situations involving a “single criminal venture” like drug conspiracies, where multiple acts are closely integrated toward a common goal.

    The Court emphasized that the Suffolk County charges arose from the act of completing and filing the application, while the Westchester County charge arose from the subsequent possession and use of the resulting forged ID card. These were deemed distinct acts. The Court also noted that a closer case for double jeopardy might have been presented if the defendant had applied for a driver’s license and then presented it to police on the same day, suggesting a closer connection between the acts.

    Practical Implications

    This case provides guidance on applying New York’s double jeopardy statute, CPL 40.20. It emphasizes the importance of analyzing the temporal and circumstantial relationship between criminal acts to determine if they constitute a single criminal transaction. Attorneys must carefully assess the specific facts of each case, paying close attention to the timing of events and the nature of the evidence involved. The court’s focus on the different instruments involved highlights the significance of the specific actions underlying each charge. This case also reminds practitioners that double jeopardy analysis is fact-specific; small changes to the facts could alter the outcome.

  • People v. Ippolito, 20 N.Y.3d 607 (2013): Agent’s Authority and Criminal Possession of a Forged Instrument

    People v. Ippolito, 20 N.Y.3d 607 (2013)

    An instrument is not forged when an agent, acting under a valid power of attorney, signs the principal’s name, even without indicating the principal-agent relationship, because the agent is authorized to execute the instrument.

    Summary

    Gerard Ippolito, an accountant with power of attorney for Katherine M. L., was convicted of grand larceny and criminal possession of a forged instrument (CPFI) for allegedly stealing from her. The prosecution argued that Ippolito committed forgery by signing Katherine M. L.’s name on checks without indicating he was acting as her agent under a power of attorney (POA). The New York Court of Appeals reversed the CPFI convictions related to the checks, holding that because Ippolito had the authority to sign Katherine M. L.’s name, the checks were not forged. The court affirmed the remaining convictions, finding the defendant failed to preserve his objection to the judge’s response to a juror question.

    Facts

    Katherine M. L. granted Gerard Ippolito a durable general power of attorney, giving him broad authority over her financial affairs. Ippolito opened an escrow account into which Katherine M. L.’s income was deposited. He then allegedly stole over $696,000 by writing checks to Katherine M. L., endorsing them in her name, and depositing the funds into his own accounts. Ippolito did not indicate on the checks that he was signing as an agent under the POA.

    Procedural History

    Ippolito was indicted on multiple counts of grand larceny and CPFI. He was convicted by a jury on most counts. The Appellate Division reversed the CPFI convictions related to the checks, vacated the restitution order, and otherwise affirmed. The dissenting Justice granted the People leave to appeal, and a Judge of the Court of Appeals granted Ippolito permission to appeal. The Court of Appeals affirmed the Appellate Division’s order.

    Issue(s)

    1. Whether an agent with power of attorney commits forgery when signing the principal’s name on a check without indicating the principal-agent relationship.
    2. Whether the trial judge committed reversible error by answering a juror’s question without first consulting with counsel.

    Holding

    1. No, because the agent was authorized to sign the principal’s name by virtue of the power of attorney.
    2. No, because Ippolito’s counsel failed to object to the judge’s action at trial, thus failing to preserve the issue for appeal.

    Court’s Reasoning

    The Court of Appeals reasoned that a person is guilty of CPFI when they utter or possess a forged instrument with knowledge that it is forged and with intent to defraud. An instrument is “forged” when it is “falsely made, completed, or altered.” A written instrument is “falsely made” if it purports to be an authentic creation of its ostensible maker, but the ostensible maker, if real, did not authorize the making or drawing of the instrument. The court distinguished this case from People v. Shanley, where an attorney falsely acknowledged that his client had personally signed a mortgage satisfaction. Here, Ippolito had the power to sign Katherine M. L.’s name, and the checks were not forgeries because Ippolito’s actions were authorized by the POA. The court cited precedent stating that the writing of the principal’s name alone is sufficient to bind the principal, even if the agent doesn’t add their own name as agent. Addressing the juror question, the court found that Ippolito’s attorney failed to object when the judge answered the question without consulting the parties, thereby failing to preserve the issue for appellate review. The court noted, “Counsel must be afforded an opportunity to suggest a meaningful response to any jury question arising during deliberations.” However, because the objection was not timely, the court declined to reverse the remaining convictions.

  • People v. Mattocks, 12 N.Y.3d 326 (2009): Forgery Applies to Bent MetroCards Used for Free Subway Rides

    People v. Mattocks, 12 N.Y.3d 326 (2009)

    Altering a MetroCard by bending it to fraudulently obtain free subway rides can constitute forgery under New York Penal Law, even if the alteration doesn’t add value, because it thwarts the intended computer processing and misuses the system’s “benefit of the doubt” design.

    Summary

    Mattocks was arrested for bending MetroCards to obtain free subway rides, a practice that exploits a flaw in the MTA’s system designed to give riders the “benefit of the doubt” when a card’s magnetic strip is damaged. By bending the card, he disabled a zero-value field, allowing the turnstile to read a backup field and grant entry. He was charged with criminal possession of a forged instrument. The New York Court of Appeals held that the bent MetroCards qualified as forged instruments, affirming the conviction. The court reasoned that the bending thwarted the computer’s ability to read the card’s true value, causing it to falsely appear valid. The court also addressed the interplay between the forgery statutes and a misdemeanor statute specifically targeting MetroCard abuse, clarifying that the existence of the misdemeanor statute does not preclude felony forgery charges in appropriate cases.

    Facts

    The Metropolitan Transportation Authority (MTA) uses MetroCards with two magnetic fields to store value. The second field acts as a backup. Individuals discovered that by bending a MetroCard, they could obliterate the zero-value field. When swiped, the turnstile computer would then read the backup field, allowing a free ride. Mattocks was observed bending MetroCards, swiping them through turnstiles, and then selling swipes to riders for money. He was arrested with 14 MetroCards, 11 of which had zero value, and three that would yield a free ride because of the bends.

    Procedural History

    Mattocks was indicted on 14 counts of criminal possession of a forged instrument in the second degree. The Supreme Court denied his motion to suppress evidence. At trial, the court submitted only one count to the jury, which convicted Mattocks. His motion to dismiss was denied, and he was sentenced to 2 to 4 years. The Appellate Division affirmed. The New York Court of Appeals granted leave to appeal and affirmed the Appellate Division’s decision.

    Issue(s)

    1. Whether a MetroCard that has been bent to obtain a free subway ride constitutes a “forged instrument” under New York Penal Law article 170?

    2. Whether the enactment of Penal Law § 165.16, a misdemeanor specifically addressing MetroCard abuse, precludes prosecution for forgery under article 170 for the same conduct?

    Holding

    1. Yes, because by bending the MetroCard, Mattocks thwarted the computer’s intended processing and misused the “benefit of the doubt” system, making a valueless card appear authentic.

    2. No, because the Legislature did not clearly intend Penal Law § 165.16 to be the exclusive vehicle for prosecuting MetroCard-related offenses, and the forgery statutes are broad enough to encompass this conduct.

    Court’s Reasoning

    The Court reasoned that a bent MetroCard qualifies as a “written instrument” under Penal Law § 170.00(1) and that it was “falsely altered” under Penal Law § 170.00(6) because the bending damaged the magnetic strip and thwarted the usual computer processing of the information. The court stated that by bending the MetroCards, Mattocks “successfully destroyed the zero-value information encoded on one of the fields in the magnetic strips… and was able to acquire free rides on what were worthless MetroCards.” The court found that the bends did not make the cards appear inauthentic but instead caused the turnstile to misread them as having value. The court cited existing law noting that the forgery statutes had been intentionally written in a broad fashion to encompass a wide range of conduct, and that “slugs” used in place of tokens had been upheld as forgery. Regarding the misdemeanor statute, Penal Law § 165.16, the court emphasized that the Legislature is presumed to be aware of existing law when it creates a new crime. Unless there is clear legislative intent to make a new statute the exclusive means of prosecuting certain conduct, existing statutes are not superseded. The court recognized prosecutorial discretion in choosing among different classifications of charges but expressed trust that felony forgery charges would be reserved for repeat offenders like Mattocks.

  • Banco Popular North America v. Victory Taxi Management, Inc., 1 N.Y.3d 381 (2004): Establishing a Triable Issue of Fact in Forgery Claims

    Banco Popular North America v. Victory Taxi Management, Inc., 1 N.Y.3d 381 (2004)

    A party opposing summary judgment on grounds of forgery must provide more than a bald assertion; they must offer factual assertions and demonstrate conduct consistent with a denial of the signature’s genuineness.

    Summary

    Banco Popular sued Victory Taxi and Jafa Albaz to recover monies owed on defaulted vehicle retail installment contracts. Albaz claimed her signature on the contracts was forged. The Supreme Court granted summary judgment to Banco Popular, finding Albaz’s affidavit and an unsworn handwriting expert report insufficient to create a factual issue. The Appellate Division affirmed. The New York Court of Appeals affirmed, holding that a mere assertion of forgery is insufficient to defeat summary judgment; factual assertions supporting the claim and consistent pre-litigation conduct are required. The expert’s report was inadmissible and inconclusive.

    Facts

    Victory Taxi purchased 14 taxicabs with financing from Banco Popular. Victory defaulted on the loans. Banco Popular sued Victory and Albaz, alleging Albaz cosigned 13 of the 14 contracts. Albaz claimed forgery, submitting an affidavit and a handwriting expert’s report based on facsimile copies of the contracts.

    Procedural History

    Banco Popular moved for summary judgment in lieu of complaint. Supreme Court granted the motion. Albaz moved to reargue and renew, submitting a sworn affidavit from her expert based on original documents. Supreme Court denied the motion. The Appellate Division affirmed. The New York Court of Appeals granted leave to appeal.

    Issue(s)

    Whether Albaz presented sufficient evidence to raise a triable issue of fact regarding the authenticity of her signatures on the retail installment contracts, thereby defeating Banco Popular’s motion for summary judgment.

    Holding

    No, because Albaz’s affidavit contained only a bald assertion of forgery without supporting factual assertions or evidence of conduct consistent with denying the signature’s validity. Furthermore, the expert’s initial report was inadmissible, and the subsequent affidavit was inconclusive.

    Court’s Reasoning

    The court emphasized that CPLR 3213 provides a speedy means for resolving presumptively meritorious claims. To defeat a CPLR 3213 motion, a defendant must offer evidentiary proof to raise a triable issue of fact. The court stated that “[A]verments merely stating conclusions, of fact or of law, are insufficient to defeat summary judgment.” Something more than a bald assertion of forgery is needed to create an issue of fact. The court found Albaz’s affidavit inadequate because it lacked factual support and did not demonstrate that her pre-litigation conduct aligned with a denial of genuineness. Regarding the expert testimony, the court noted that the initial report was inadmissible because it was unsworn. The subsequent affidavit was also insufficient because the expert’s opinion was inconclusive, stating he could not determine whether Albaz signed the documents. The court reasoned that, “where an expert is used to counter the moving party’s prima facie proof, the expert opinion must be in admissible form and state with reasonable professional certainty that the signature at issue is not authentic.” Because Albaz failed to provide sufficient evidence to challenge the authenticity of the signatures, Banco Popular’s prima facie showing of entitlement to judgment remained unchallenged.

  • People v. Asaro, 94 N.Y.2d 792 (1999): Forgery Requires Falsely Making an Instrument

    People v. Asaro, 94 N.Y.2d 792 (1999)

    A person does not commit forgery when they sign their own name to an application, even if the application contains false information.

    Summary

    Vincent Asaro was convicted of forgery, criminal possession of a forged instrument, and offering a false instrument for filing for misrepresenting his date of birth on a driver’s license renewal application. The New York Court of Appeals modified the Appellate Division’s order, dismissing the forgery and criminal possession charges. The Court held that because Asaro signed his own name and provided his own Social Security number, he did not “falsely make” the application, a necessary element of forgery. Furthermore, the license itself was genuine, even with false information, as the DMV was authorized to issue it.

    Facts

    Asaro completed a driver’s license renewal application, misrepresenting his date of birth. He signed the application with his own name and provided his correct Social Security number. The Department of Motor Vehicles (DMV) was authorized to issue driver’s licenses.

    Procedural History

    Asaro was convicted in the Supreme Court of forgery in the second degree, criminal possession of a forged instrument in the second degree, and offering a false instrument for filing in the first degree. The Appellate Division affirmed this conviction. Asaro appealed to the New York Court of Appeals.

    Issue(s)

    1. Whether the act of signing one’s own name to an application containing false information constitutes forgery in the second degree under Penal Law § 170.10(2)?

    2. Whether a driver’s license containing false information, but issued by the authorized Department of Motor Vehicles, constitutes a forged instrument for the purposes of criminal possession of a forged instrument in the second degree under Penal Law § 170.25?

    Holding

    1. No, because the defendant signed his own name and provided his own Social Security number; therefore, he did not “falsely make” the application as required for a forgery conviction.

    2. No, because the Department of Motor Vehicles was authorized to issue the license, and the false information did not affect the genuineness of the document.

    Court’s Reasoning

    The Court of Appeals focused on the element of “falsely make” within the definition of forgery. The court referenced People v. Johnson, stating that signing one’s own name does not constitute falsely making an instrument, even if the content is false. The court reasoned that Asaro represented himself accurately and truthfully as Vincent Asaro and did not falsely claim to be another person. The court distinguished the act of providing false information from the act of creating a false instrument. The Court also cited People v. Cannarozzo, which held that a document issued by an authorized entity does not become a forged instrument simply because it contains false information. The genuineness of the document, stemming from the DMV’s authorization, was the key factor. The court emphasized that the DMV was authorized to issue Asaro the license. Even though that license contained false information (the incorrect birthdate), the false information did not transform the otherwise genuine document into a forgery. To hold otherwise would potentially criminalize a wide range of actions where individuals provide false information to authorized entities, which was not the intent of the forgery statutes. The Court stated that to be a forged instrument, the license would have to be made without authorization, not merely contain false information supplied by the licensee.

  • People v. Moschiano, 66 N.Y.2d 631 (1985): Establishing Knowledge of Forgery Through Circumstantial Evidence

    People v. Moschiano, 66 N.Y.2d 631 (1985)

    A defendant’s knowledge that an instrument is forged can be inferred from circumstantial evidence, including their conduct and statements surrounding the attempted negotiation of the instrument.

    Summary

    The New York Court of Appeals addressed whether sufficient evidence existed to prove that the defendant, Moschiano, knew a check was forged when he attempted to cash it. The court found that circumstantial evidence, including Moschiano’s false statements about the check’s origin, his willingness to accept a significantly reduced amount, and his subsequent disposal of the check, supported the inference that he knew the check was forged. The court emphasized that when reviewing the sufficiency of evidence, it must do so in the light most favorable to the prosecution, with credibility left to the trier of fact.

    Facts

    Defendant Moschiano asked John Scivoletto to cash a $377 check made out to Richard Moschiano, claiming the payee was on vacation and had given him the check. Moschiano offered to accept only $300 for the check. Richard Moschiano testified that he did not endorse the check or authorize anyone else to do so. After Scivoletto refused, Moschiano tried to cash the check at a diner and a bar, offering a larger discount. Unsuccessful, he threw the check in a garbage can, where it was later found with the payee’s endorsement.

    Procedural History

    The defendant was convicted of criminal possession of a forged instrument in the second degree. The Appellate Division reversed the conviction, vacated the sentence, and dismissed the indictment. The People appealed to the Court of Appeals. The defendant cross-appealed, challenging his sentencing as a second felony offender.

    Issue(s)

    1. Whether there was sufficient evidence to support a finding that the defendant knew when he presented the check for cashing that it was forged.
    2. Whether the defendant was properly sentenced as a second felony offender.

    Holding

    1. Yes, because circumstantial evidence, including the defendant’s statements, conduct, and the payee’s testimony, supported the inference that the defendant knew the check was forged.
    2. Yes, because the defendant failed to challenge his prior second felony offender adjudication by direct appeal or post-judgment motion, rendering the issue no longer open for review.

    Court’s Reasoning

    The Court of Appeals found sufficient evidence to infer Moschiano’s knowledge of the forgery. The court highlighted that when reviewing the sufficiency of the evidence to sustain a guilty verdict, the evidence must be viewed in the light most favorable to the People, and credibility is for the trier of fact to determine. The court reasoned that Moschiano’s statement that Richard Moschiano gave him the check, coupled with Richard Moschiano’s testimony that he did not endorse or authorize the endorsement, allowed the inference that Moschiano knew the endorsement was forged. The court further noted that Moschiano’s attempts to cash the check at a significant discount and his subsequent disposal of the check bolstered this inference. The court distinguished this case from People v. Green, noting the presence of sufficient evidence of knowledge, similar to People v. Johnson. Regarding the sentencing, the court held that since Moschiano did not challenge his prior second felony offender status through proper channels, he could not challenge it now.

  • People v. Levitan, 49 N.Y.2d 87 (1980): Forgery Requires False Making, Not Just False Statements

    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.”

  • People v. Sansanese, 17 N.Y.2d 302 (1966): Limits on Felony Charges Arising from False Driver’s License Applications

    People v. Sansanese, 17 N.Y.2d 302 (1966)

    A specific misdemeanor statute addressing false statements in driver’s license applications does not preclude prosecution under more general felony statutes, but the evidence must still sufficiently establish the elements of those felony offenses independently.

    Summary

    Daniel Sansanese was indicted on misdemeanor and felony charges for filing a fraudulent driver’s license application under his deceased father’s name. The trial court dismissed the felony indictments, but the Appellate Division reversed. The New York Court of Appeals held that while prosecution under general felony statutes is permissible despite a specific misdemeanor statute, the evidence presented was insufficient to sustain the felony charges of forgery, obtaining property by false pretenses, and offering false instruments for filing. The court emphasized the narrow construction of “instrument” and the absence of “property” obtained in the context of the false application.

    Facts

    Daniel Sansanese, due to his criminal record and prior license revocations, filed a fraudulent driver’s license application with the Department of Motor Vehicles under the name of his deceased father, Donato Zonzonese. This application contained false statements. As a result, Sansanese was indicted for both misdemeanor (Vehicle and Traffic Law violation) and felony charges (Penal Law violations).

    Procedural History

    The trial court dismissed the four felony indictments against Sansanese, finding the evidence insufficient as a matter of law. The Appellate Division reversed this decision, reinstating all four felony indictments, despite the People’s concession regarding the forgery indictments. Sansanese appealed to the New York Court of Appeals.

    Issue(s)

    1. Whether the existence of a specific statute (Vehicle and Traffic Law) addressing false statements in driver’s license applications precludes prosecution under more general felony statutes (Penal Law) for the same conduct?

    2. Whether the evidence presented to the Grand Jury was sufficient to sustain indictments for forgery based on the fraudulent driver’s license application?

    3. Whether the evidence was sufficient to sustain an indictment for obtaining property by false pretenses based on the fraudulent application?

    4. Whether the evidence was sufficient to sustain an indictment for offering a false instrument for filing based on the fraudulent application?

    Holding

    1. No, because there is no constitutional or legislative reason precluding prosecution under a more general penal provision, so long as it is applicable and contains no legislative limitation.

    2. No, because the conduct of filing a false driver’s license application does not fall within the definition and coverage of the forgery statutes.

    3. No, because Sansanese did not obtain “property” by false pretenses. The license itself is not the “property” contemplated under the statute.

    4. No, because an application for an operator’s license is not an “instrument” as the term is used in the statute prohibiting offering false instruments for filing.

    Court’s Reasoning

    The Court of Appeals acknowledged that the existence of a specific statute doesn’t automatically bar prosecution under a more general one if the elements of the general statute are met. However, it found the evidence insufficient to support the felony indictments. Regarding forgery, the court distinguished the case from International Union Bank v. National Surety Co., noting that filing a false driver’s license application is not the type of activity traditionally punished under forgery statutes. As for obtaining property by false pretenses, the court emphasized that the defendant did not obtain “property” as contemplated by the statute. The court stated, “the writing itself (in this case, the operator’s license) is not the ‘property’ contemplated under the statute.” Regarding the charge of offering a false instrument for filing, the court relied on a narrow construction of the term “instrument,” defining it as a “formal or legal document in writing, such as a contract, deed, will, bond, or lease.” The Court reasoned that while penal provisions should not be overly technical, “Penal responsibility * * * cannot be extended beyond the fair scope of the statutory mandate.” The court concluded that a driver’s license application does not fall within this definition. Thus, even though the defendant acted fraudulently, his actions did not satisfy the elements of the charged felony offenses.