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The Acts of Applying for a Fake Non-Driver ID Card and Possessing the Fake Non-Driver ID Card Upon Arrest (Four-Months After Submitting the Application) Did Not Constitute a Single Criminal Venture—the Prohibition Against Double Jeopardy Did Not Preclude the Second Charge

The Court of Appeals, in a full-fledged opinion by Judge Lippman, determined defendant was not entitled to the dismissal of charges on double jeopardy grounds.  Defendant had used his son’s identification information to procure a non-driver ID card in Suffolk County.  Several months later defendant was stopped by police in Westchester County, presented the fake non-driver ID card, and was subsequently charged with possession of a forged instrument in the second degree. Defendant pled guilty to possession of a forged instrument third degree. When defendant’s son returned to New York State (after a four-year absence) and applied for a driver’s license in Westchester County, authorities became aware of defendant’s submission (in Westchester County) of a fake application (MV-44 form) for the non-driver ID. Defendant was then charged in Westchester County with possession of a forged instrument (the ID application form) as well as forgery.  The Court of Appeals held that the two offenses were not “integrated, interdependent acts as seen in conspiracy cases or complex frauds…”. Therefore, unlike individual acts within such conspiracies or complex frauds, the two acts did not constitute a “single criminal venture.” The court noted: “A closer case might be presented had defendant applied for a driver’s license in Suffolk County with his son’s papers and showed the temporary driver’s license later that same day when his car was stopped by police. In such circumstances, the timing and criminal purpose of the two acts would be more interrelated than the circumstances presented here:”

Under CPL 40.20, a subsequent prosecution for offenses involving the “same criminal . . . transaction,” as defined by CPL 40.10 (2), violates the statutory bar against double jeopardy unless an exception applies.

“‘Criminal transaction’ means conduct which establishes at least one offense, and which is comprised of two or more or a group of acts either (a) so closely related and connected in point of time and circumstance of commission as to constitute a single criminal incident, or (b) so closely related in criminal purpose or objective as to constitute elements or integral parts of a single criminal venture” (CPL 40.10 [2]). * * *

Part (b) of the CPL 410.10 definition “tends to be more applicable to crimes that involve planned, ongoing organized criminal activity, such as conspiracies, complex frauds or larcenies, or narcotics rings” (7 NY Prac., New York Pretrial Criminal Procedure § 2:6 [2d ed.]). This Court has recognized statutory violations of double jeopardy protections in drug trafficking cases where the “embracive nature of the crime of conspiracy” presents unique circumstances … .

Here, under the test presented by CPL 40.10 (2) (a), the offense of submitting a forged MV-44 form and the offense of presenting a forged non-driver ID to the police were many months apart and … involved different forged instruments — the non-driver’s license and the MV-44 application form — making them different criminal transactions. The Suffolk County charge was based on defendant’s completion and filing of the application form. The offense was complete once defendant submitted the forged application to the DMV in June 2009. The Westchester offense occurred four months later and was based on defendant’s presentation of the forged non-driver’s license to the officer. With the non-driver ID card in hand, defendant could give the appearance of a clean record, which would enable him to evade his criminal history and obtain a loan or employment under a false identity. Applying the alternative test defined by CPL 40.10 (2) (b), this case does not involve the integrated, interdependent acts as seen in conspiracy cases or complex frauds, and as such does not constitute a “single criminal venture” … . People v Lynch, 2015 NY Slip Op 04754, CtApp 6-9-15

 

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Fabricated Checks Using Defendant’s Name and Signature Were Not “Forged Instruments”

The Third Department affirmed the dismissal of forgery charges because, although the defendant fabricated the checks at issue, the defendant did not portray herself as someone other than herself in executing the checks:

…[A] “… person is guilty of criminal possession of a forged instrument in the second degree when, with knowledge that it is forged and with intent to defraud, deceive or injure another, he [or she] utters or possesses any forged instrument of a kind” as described under Penal Law § 170.10 (Penal Law § 170.25). A forged instrument is defined as a “written instrument which has been falsely made, completed or altered” (Penal Law § 170.00 [7]). Importantly, a person “‘falsely makes’ a written instrument when he [or she] makes . . . [an] instrument, which purports to be an authentic creation of its ostensible maker . . ., but which is not such either because the ostensible maker . . . is fictitious or because, if real, he [or she] did not authorize the making . . . thereof” … . Determining whether a document is forged “does not depend so much on whether it contains a falsehood, but on whether, on its face, it misrepresents its authenticity” … .

Defendant did not attempt to portray herself as someone other than herself in executing the checks … . Nor does this case present a situation in which defendant made out the checks without attaining the requisite authorization from another individual … . Thus, the checks at issue in this matter “were not falsely made,” as provided in the forgery statute … . Defendant’s fabrication of the checks bearing her name and address, as the purported bank account holder, makes her the ostensible maker … and the placement of defendant’s signature on the checks renders defendant the actual maker of the checks. Where, as here, the ostensible maker and the actual maker of the written instrument are the same person, the alleged crime of criminal possession of a forged instrument in the second degree must be dismissed … . People v Zeller, 2014 NY Slip Op 08068, 3rd Dept 11-20-14

 

Criteria for CPL 440.20 Motion Explained/Predicate Offenses Must Run Concurrently

The Fourth Department noted the trial court applied the wrong criteria to defendant’s motion pursuant to CPL 440.20 to vacate his consecutive sentences and determined defendant’s sentences must run concurrently.  Either the robbery or forgery count could serve as the predicate for the felony assault count and therefore the sentences for the predicate counts must run concurrently with the sentence for felony assault:

…[T]he court erred in denying the motion on the ground that defendant could have raised this issue on his direct appeal.  Mandatory denial of a motion pursuant to CPL 440.20 is required only when the issue “was previously determined on the merits upon an appeal from the judgment or sentence” (CPL 440.20 [2]), which in this case it was not … .  The court erred in conflating the provisions of CPL 440.10 with those of CPL 440.20.  The procedural bar set forth in CPL 440.10 (2) (c) “applies only to motions made pursuant to section 440.10, and it is undisputed that the instant motion was made pursuant to section 440.20” … .

We agree with defendant that the consecutive sentences for the robbery and forgery counts are illegal under the facts of this case. The indictment and charge to the jury set forth that either count could serve as the predicate for the count of felony assault, and thus the predicate counts must run concurrently with the count of felony assault … .  The sentences imposed on the counts of robbery and forgery must therefore also run concurrently… . People v Povoski, 1050.1, 4th Dept 11-8-13

 

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Erroneous Molineux Rulings Required Reversal

The Fourth Department reversed defendant’s conviction, finding error in the trial court’s ruling evidence of prior bad acts was admissible:

Before the trial, the court granted the People’s motion to present Molineux evidence for the limited purpose of proving the absence of mistake in defendant’s possession of the forged checks (see People v Molineux, 168 NY 264, 293-294).  Pursuant to the court’s ruling, the People presented evidence on their direct case concerning three of defendant’s prior convictions as well as one investigation that did not result in criminal charges, arising from defendant’s conduct in writing checks on his accounts with knowledge that those accounts either were closed or had insufficient funds.  The court erred in ruling that such evidence was relevant to establish the absence of mistake.  The disputed issues at trial were whether defendant knew that the checks were forged and whether defendant was a knowing participant in, or an innocent victim of, a fraudulent check scheme.  Defendant’s prior bad acts were not “directly relevant” to the absence of mistake in defendant’s possession of the forged checks because those prior bad acts are not probative of defendant’s ability to recognize that the checks were forgeries or that he had become knowingly involved in a fraudulent check scheme … .  Contrary to the People’s contention, the Molineux evidence was not admissible to prove defendant’s “familiarity with check frauds and his ability to deceive individuals through banking schemes” inasmuch as such evidence “tends only to demonstrate the defendant’s propensity to commit the crime charged” .. .  Furthermore, the Court of Appeals has expressly declined to create a “ ‘specialized crime’ exception to Molineux” when the charged crime is one “that require[s] unusual skills, knowledge and access to the means of committing it” … .  We therefore conclude that evidence of defendant’s prior bad acts was inadmissible as a matter of law … .

We further conclude in any event with respect to the court’s Molineux ruling that the probative value of the evidence did not outweigh its prejudicial effect … .  The evidence was “of slight value when compared to the possible prejudice to [defendant]” and therefore should not have been admitted … .  We further conclude that the error in admitting the evidence is not harmless …, even in view of the court’s limiting instruction.  People v Mhina, 871, 4th Dept 10-4-13

 

Statements Made In Plea Allocution Negated Guilt

The Third Department vacated defendant’s plea to forgery because, during the plea allocution, the defendant indicated he signed his own name on the credit card receipts.  Signing one’s own name cannot constitute forgery:

Although defendant waived his right to appeal and did not preserve his challenge to the voluntariness of his plea by moving to withdraw his plea or vacate the judgment of conviction, the narrow exception to the preservation rule is triggered because he made a statement during the allocution that cast doubt upon his guilt … .  During the allocution, defendant admitted to purchasing several items at various stores using a credit card that did not belong to him. When asked whether he had signed the credit card receipts using the name of the person to whom the card had been issued, defendant informed County Court that he did not know whose name was on the card and that he had signed the receipts in his own name.  * * *

Here, defendant’s signing of his own name to the credit card receipts would render him both the actual and ostensible maker of the instrument, and the making of the instrument would not constitute a forgery … .  Accordingly, defendant’s statement that he signed his own name to the receipts implicated the voluntariness of his guilty plea to forgery in the second degree, requiring further inquiry from County Court.  As the court failed to conduct such an inquiry, defendant’s plea must be vacated and the matter remitted to County Court.  People v Morehouse, 104770, 3rd Dept 9-19-13

 

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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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