People v. Dallas

46 A.D.3d 489, 848 N.Y.S.2d 132

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 27, 2007
• Status: Published

Opinions

Judgment, Supreme Court, New York County (Lewis Bart Stone, J.), rendered June 24, 2005, convicting defendant, after a jury trial, of criminal possession of a forged instrument in the second degree (12 counts), and sentencing him to concurrent terms of 2¹/s to 7 years, affirmed.

Defendant’s conviction in this case followed his prosecution and conviction in Kings County on four counts of criminal possession of a forged instrument in the second degree. Defendant’s prosecution in New York County for the possession of 12 counterfeit documents did not violate his constitutional double jeopardy rights because the Kings County prosecution dealt with separate offenses arising out of his possession and sale of a different set of counterfeit documents (see Blockburger v United States, 284 US 299 [1932]; People v Latham, 83 NY2d 233, 238 [1994]).

Nor was there a violation of defendant’s statutory protection against double jeopardy. The sale of false identification documents in Brooklyn, and the possession in Manhattan of additional documents of the same nature for the purpose of sale to other persons, were not so closely related as to constitute a single “criminal transaction” (see CPL 40.10 [2]; People v Crandall, 161 AD2d 890, 891-892 [1990]). The fact that defendant was in the business of selling counterfeit identifications, and that his conduct in both counties may have been admissible in both prosecutions pursuant to People v Molineux (168 NY 264 [1901]), did not make his possession of different documents at different times a single criminal transaction (see People v Vesprey, 183 AD2d 212, 216 [1992], lv denied 81 NY2d 894 [1993]; People v Luongo, 47 NY2d 418, 430 [1979]). Furthermore, there was no theory under CPL 20.40 that would have given Kings County geographical jurisdiction over the New York County conduct, or vice versa (see Matter of Taub v Altman, 3 NY3d 30, 32-33 [2004]; People v Leonard, 106 AD2d 470 [1984], lv denied 64 NY2d 1020 [1985]). Since the Kings County and New York County crimes were not joinable in a single accusatory instrument (see People v Lindsly, 99 AD2d 99, 102 [1984]), subsequent prosecution of the New York crimes was not statutorily barred (see CPL 40.40).

The verdict was based on legally sufficient evidence and was not against the weight of the evidence. The evidence supported the conclusion that defendant possessed forged instruments “with intent to defraud, deceive or injure another” (Penal Law § 170.25). While not intending to use the false identity documents himself, he clearly intended to sell them to others for profit. We reject defendant’s argument that there was a lack of proof he shared whatever fraudulent intent his prospective purchasers might have had. The only conceivable purpose for these items, including a set of documents creating two different identities for the same person, was that they would be passed off as the genuine articles in order to deceive or defraud anyone to whom they were presented, and there would be no reason for anyone to buy them without planning to use them in that manner. Thus it could be inferred not only that defendant expected or believed it likely that the documents would be used for fraudulent purposes, but also that by intending to sell the documents, defendant additionally intended what he knew to be the inevitable consequences of such sales. Furthermore, as a merchant of false documents, defendant had an interest in having his customers successfully use his products for their intended purpose.

The dissent’s narrow reading of the statutory language does not persuade us. As the dissenter implicitly concedes, a seller of forged documents may, and, in many circumstances will, share the buyer’s intent that the documents be used “to defraud, deceive or injure another.” The fact that the dissent’s hypothetical seller of forged documents might not share such intent in a particular instance is beside the point, since a rational jury could have determined, and in this case did determine, that this defendant shared his customers’ intent to defraud, deceive or injure.

In any event, the law is clear that the statutory element of intent to defraud does not require an intent to defraud any particular person; a general intent to defraud any person suffices (People v Anderson, 210 App Div 59, 75 [1924], affd 239 NY 534 [1924]; see also People v Cassidy, 133 AD2d 374, 377 [1987], lv denied 70 NY2d 953 [1988]). Nor does the statute require that the defendant actually attempt to use the forged documents in order to prove an intent to defraud, deceive or injure (see Penal Law § 170.25 [statute satisfied when defendant, “with knowledge that it is forged and with intent to defraud, deceive or injure another, (presents) or possesses (a) forged instrument”]; see also People v Dales, 285 App Div 214, 217 [1955], affd on other grounds 309 NY 97 [1955] [“an intent to defraud arising in connection with a forgery need not necessarily be an intent to defraud the party directly affected by the forgery itself’]). Accordingly, a defendant can have the “conscious objective” (Penal Law § 15.05 [1]) to defraud, deceive or injure another while knowingly possessing a forged document even without the intent to personally use it. Concur—Tom, J.R, Mazzarelli, Sullivan and Gonzalez, JJ.

1 . The Legislature, moreover, certainly knows how to draft a criminal statute with such a broader mens rea element. Thus, the crime “Possession of burglar’s tools” specifies that it is committed when a burglar’s tool is possessed “under circumstances evincing an intent to use or knowledge that some person intends to use the same in the commission of an offense of such character” (Penal Law § 140.35). Another of the crimes defined in Penal Law article 170, “Criminal possession of forgery devices,” provides that a person is guilty of this crime when, inter alia, “[w]ith intent to use, or to aid or permit another to use, the same for purposes of forgery, he makes or possesses any device, apparatus, equipment or article capable of or adaptable to such use” (Penal Law § 170.40 [2] [emphasis added]).