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Signing Checks Pursuant to a Power of Attorney Cannot Amount to Forgery 

The Court of Appeals, in a full-fledged opinion by Judge Read, affirmed the appellate division’s reversal of 40 “criminal possession of a forged instrument” convictions that were based upon the defendant’s [Ippolito’s]  signing checks using only the principal’s name without indicating he was signing pursuant to a power of attorney [POA]:

Here, the POA (until revoked) vested Ippolito with unlimited power to sign Katherine M. L.’s name on written instruments. As a result, the checks cannot have been forgeries … .[“[A] person does not ‘falsely make’ an instrument when he is authorized to execute it”]). Put another way, where the ostensible maker or drawer of a written instrument is a real person, a signature is not forged unless unauthorized (see Penal Law § 170.00 [4]). Since Ippolito was empowered to sign Katherine M. L.’s name at the times when he drew or endorsed the 40 checks at issue on this appeal, the People’s proof was legally insufficient to convict him of [criminal possession of a forged instrument]. People v Ippolito, 32, CtApp, 4-2-13

 

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