People v. Chive

189 Misc. 2d 653, 734 N.Y.S.2d 830, 2001 N.Y. Misc. LEXIS 642
CourtCriminal Court of the City of New York
DecidedDecember 6, 2001
StatusPublished
Cited by3 cases

This text of 189 Misc. 2d 653 (People v. Chive) is published on Counsel Stack Legal Research, covering Criminal Court of the City of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Chive, 189 Misc. 2d 653, 734 N.Y.S.2d 830, 2001 N.Y. Misc. LEXIS 642 (N.Y. Super. Ct. 2001).

Opinion

OPINION OF THE COURT

Charles J. Markey, J.

At a time of heightened national attention to the issue of “homeland security,” the case at bar presents facts regarding altered passports that have never been previously raised in the New York courts.

Defendant Rosa Chive is charged, by a second superceding misdemeanor information, dated April 26, 2001, with criminal impersonation in the second degree (Penal Law § 190.25 [1]) and two counts of criminal possession of a forged instrument in the third degree (Penal Law § 170.20).

Upon the foregoing papers, specifically, the defendant’s omnibus motion, filed on October 9, 2001, the defendant seeks an order dismissing all charges against her on grounds of facial insufficiency, suppressing physical evidence or a hearing on the admissibility of such evidence, and precluding the People from using at trial her oral statement to a police officer.

The Facts

Initially, the court notes that this is the third accusatory instrument attempted by the People. Previous instruments included the original information signed by Officer Kenneth [655]*655McCann, of the 13th Police Precinct, on February 11, 2001, and a first superceding information signed by Officer McCann on March 14, 2001.

According to the second superceding information, on February 11, 2001, on Austin Street (not Austin Boulevard, as that street is incorrectly labeled), in Queens County, the defendant was sitting in the front passenger seat of a vehicle that had been stopped for a traffic infraction. The second superceding information, aside from the aforementioned error in describing the street where the incident allegedly took place, fails to provide a description of the vehicle, any information regarding the car’s registration, the defendant’s ownership interest in the vehicle, the name of the driver, the defendant’s relationship with the driver, and the type of alleged infraction for which the car was stopped. The foregoing items of information would all be pertinent in determining the issue of defendant’s standing with regard to the police search. Even on this motion, neither the motion papers nor the papers in opposition attempt to fill in these missing holes.

The information continues that, pursuant to an inventory search of the vehicle, Police Officer McCann found a cosmetics purse. Defendant told the police officer that the purse belonged to her. Inside the purse was a passport issued by the government of Thailand to a Jennifer Ross. The original picture had been removed, and defendant’s photograph was glued in its place. The defendant advised the officer that she was Jennifer Ross.

Officer McCann then found another passport in the car. The second passport he recovered was issued by the government of the Philippines, and the true name of the person to whom the passport had been issued was obliterated. The defendant’s photograph was glued to this second passport.

Later, the defendant told the police officer, at a time that her arrest was being processed at the 112th Police Precinct, that her name was Rosa Chive.

The Statutes

Penal Law § 190.25 (1) provides: “A person is guilty of criminal impersonation in the second degree when he * * * [i]mpersonates another and does an act in such assumed character with intent to obtain a benefit or to injure or defraud another.” Conviction of this crime requires proof that the defendant impersonated a real person and not simply used some fictitious or assumed name. (People v Sadiq, 236 AD2d 638 [2d [656]*656Dept], lv denied sub nom. People v Sikandar, 89 NY2d 1100 [1997]; People v Nuhibian, 201 AD2d 962 [4th Dept] [“(T)he People made no effort to prove that the identity assumed by defendant was that of a real person”], lv denied 83 NY2d 856 [1994]; see, e.g., People v Powell, 59 AD2d 950 [2d Dept 1977] [statute was not violated where the People failed to prove that “Howard C. Jackson” was anything but a name used by defendant Powell to secure a driver’s license].)

The “benefit” to the miscreant contemplated by the statute prohibiting criminal impersonation need not be monetary. The benefit may consist of the desire to avoid apprehension or prosecution. (People v Sherman, 116 Misc 2d 109 [Rochester City Ct 1982].) Similarly, the Criminal Jury Instructions for New York defines “[W]ith intent to * * * defraud” as “to cheat or deprive another person of property [or a thing of value] [or a right].” (3 CJI[NY] PL 190.25 [2] at 1301; accord, People v Tanner, 153 Misc 2d 742 [Crim Ct, NY County 1992]; 2 CJI[NY] PL 170.45 [2] at 1131.) The term “defraud” cannot be cabined neatly, as misguided human deviousness attempts constantly to explore and lend to fraud new outlets for expression. (See, People v Reynolds, 174 Misc 2d 812, 828 [Sup Ct, NY County 1997]; 60A NY Jur 2d, Fraud and Deceit § 1 [fraud is any deception or artifice employed by one person “to deceive or gain an unfair advantage to the detriment of another”].) In interpreting “intent to defraud,” in short, a court must effectuate the object, intent, and spirit of the statute. (People v Schrag, 147 Misc 2d 517, 518 [Rockland County Ct 1990].)

Penal Law § 170.20 provides: “A person is guilty of criminal possession of a forged instrument in the third degree when, with knowledge that it is forged and with intent to defraud, deceive or injure another, he utters or possesses a forged instrument.” A conviction of this crime requires knowledge that the instrument was forged together with an intent to defraud or deceive. (People v Vesprey, 183 AD2d 212, 217 [1st Dept 1992], lv denied 81 NY2d 894 [1993].)

The Law

With regard to the charge of criminal impersonation, stemming from the discovery of the passport from Thailand issued to Jennifer Ross, the defendant seeks dismissal. Citing the aforementioned law that it is insufficient for conviction to show that the defendant used an assumed name, the defendant argues that the People have not demonstrated in the accusatory instrument or by any other proof that “Jennifer Ross is an actual person who was issued a Thai passport.”

[657]*657Defendant’s counsel misses the point. The government of Thailand issued a passport to Jennifer Ross. That name was not conjured up by the defendant. The name appears on the passport. A presumption of regularity adheres to governmental acts. (United States Postal Serv. v Gregory, 534 US 1, —, 122 S Ct 431, 436 [2001] [“(A) presumption of regularity attaches to the actions of government agencies”]; Matter of Abrahams v New York State Tax Comma., 131 Misc 2d 594, 595 [Sup Ct, Westchester County 1986] [government agencies are presumed to act honestly and in accordance with the law].) This presumption of regularity also attaches to the actions and procedures of foreign governments. (Murarka v Bachrack Bros., 215 F2d 547, 553 [2d Cir 1954]; Monaco v Dulles, 210 F2d 760, 762 [2d Cir 1954]; Interco, Inc. v Federal Trade Commn., 490 F Supp 39, 46 [US Dist Ct, DC 1979]; see, Ramm v Ramm, 34 AD2d 667 [2d Dept 1970], affd on opn below 28 NY2d 892 [1971]; Matter of Inkpen v Lehigh Constr. Co., 12 AD2d 692 [3d Dept 1960], lv denied 9 NY2d 609 [1961]; Gould v Gould, 119 Misc 845 [Sup Ct, NY County], affd 202 App Div 492 [1st Dept 1922].)

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Bluebook (online)
189 Misc. 2d 653, 734 N.Y.S.2d 830, 2001 N.Y. Misc. LEXIS 642, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-chive-nycrimct-2001.