People v. Kirk

115 A.D.2d 758, 497 N.Y.S.2d 139, 1985 N.Y. App. Div. LEXIS 55180

Opinions

Appeal by the People from an order of the County Court, Suffolk County (Sherman, J.), dated January 23, 1985, which granted the defendant’s motion to dismiss the indictment against her for forgery in the second degree.

Order reversed, on the law, indictment reinstated, and matter remitted to the County Court, Suffolk County.

Defendant was charged with one count of forgery in the second degree (Penal Law § 170.10) by the Suffolk County Grand Jury. The indictment alleged that on May 24, 1984, defendant "falsely completed” a fingerprint card by signing it with a name other than her own, to wit, her sister’s name. Thereafter, on December 13, 1984, she moved to dismiss said indictment on the ground that signing a fingerprint card with a false name does not constitute the crime of forgery in the second degree. The County Court agreed and dismissed the indictment, concluding that the card was not a "written instrument” within the purview of the forgery statute because the use of a fingerprint card signed with a third person’s name "does not work to the advantage or disadvantage of anyone”. We now reverse.

For the purpose of prosecution pursuant to New York’s forgery statutes, the term "written instrument” is defined by Penal Law § 170.00 (1) as follows: " 'Written instrument’ means any instrument or article containing written or printed matter or the equivalent thereof, used for the purpose of reciting, embodying, conveying or recording information, or constituting a symbol or evidence of value, right, privilege or identification, which is capable of being used to the advantage or disadvantage of some person.”

The definition has been recognized as a very broad one (see, People v Gottlieb, 36 NY2d 629, 632), and thus the crime of forgery has been held to encompass both falsified mail-order subscriptions (People v Hacken, 56 Misc 2d 950) and a bogus driver’s license (People v Campisi, 82 Misc. 2d 254, affd 51 AD2d 595). A fingerprint card, signed with another person’s name, also comes within the purview of a "written instrument” for forgery purposes because it can be used to the advantage or disadvantage of someone. Indeed, contrary to defendant’s contentions, a criminal suspect gains a very real advantage when he signs the name of another to such a card, because he is thereby able to at least temporarily hide from the authorities his prior criminal history and his true identity. As other courts have noted, a false signature could reasonably lead the authorities to conclude that a suspect has no past criminal record and, as a consequence, he might be released on his own recognizance or upon very low bail (see, People v Pergolizzi, 92 Misc 2d 528; People v St. Pierre, 91 Misc 2d 783). Moreover, a suspect with no criminal history who falsely signs a fingerprint card might gain the advantage of having his prints recorded in the name of the other person, thus hampering his identification by the police in future investigations based solely upon the presence of his fingerprints at the scene of the crime (see, People v St. Pierre, supra). We therefore find that the County Court erred in dismissing the indictment.

Finally, we note that the sole issue considered by the County Court in dismissing the indictment, and the sole issue addressed by the parties on this appeal, is whether a fingerprint card constitutes a "written instrument” within the meaning of Penal Law § 170.00 (1). Thus, the further issue addressed by our dissenting colleague, i.e., whether the fingerprint card was falsely made or falsely completed so as to constitute a forgery (see, Penal Law § 170.00 [4], [5]; see also, People v Briggins, 50 NY2d 302), is beyond the proper scope of this appeal. Lazer, J. P., Bracken and O’Connor, JJ., concur.