Summary
In People v. Jacob, 248 A.D.2d 638 (2nd Dep't, 1998), the Supreme Court's order dismissing charges of Offering a False Instrument for Filing was reversed—vouchers submitted to the State Comptroller's Office were “written instruments” even though their content was not relied upon by the government, as “[t]he purpose of Penal Law 175.35 is to guard against the possibility that” the government would act upon false instruments filed with their offices in the belief that they were accurate. 248 A.D.2d at 639 (Emphasis in original).
Summary of this case from People v. HeadleyOpinion
March 23, 1998
Appeal from the Supreme Court, Suffolk County (Mullen, J.).
Ordered that the order is reversed insofar as appealed from, on the law, the defendants' respective motions are denied, and the indictment is reinstated.
The Supreme Court incorrectly dismissed the first eight counts of the indictment charging the defendants with offering a false instrument for filing in the first degree (see, Penal Law § 175.35) on the ground that the vouchers which formed the basis for the indictment did not constitute "written instruments" under Penal Law § 170.00 (1). The vouchers were prepared and submitted by the defendants, officials of the Town of Babylon, to the Associate Examiner of the State Comptroller's Office, who was performing an audit of the Town's financial condition (see, General Municipal Law § 30; § 34), to justify certain purported "chargebacks" to the Town's general fund from a separate capital fund. Contrary to the court's conclusion, Penal Law § 175.35 does not require that the content of these vouchers be accepted or relied upon by the government. Rather, only the intent to defraud need be proven (see, People v. Miller, 70 N.Y.2d 903; see also, People v. Bel Air Equip. Corp., 39 N.Y.2d 48; People v. Kase, 76 A.D.2d 532, affd 53 N.Y.2d 989). The purpose of Penal Law § 175.35 is to guard against the possibility that officers of the State or its political subdivisions would act upon false or fraudulent instruments that had been filed with their offices in the belief that such documents were accurate (see, People v. Bel Air Equip. Corp., supra, at 54). Furthermore, inasmuch as these vouchers could have been relied upon by the Associate Examiner and, thus, necessarily would have affected his findings and conclusions relating to the Town's financial condition in his final report filed with the State Comptroller (see, General Municipal Law § 35), they were "capable of being used to the advantage or disadvantage of some person" (Penal Law § 170.00).
Because the first eight counts of the indictment were erroneously dismissed, the court's concomitant reduction of the last eight counts of the indictment charging the defendants with falsifying business records in the first degree (see, Penal Law § 175.10) to falsifying business records in the second degree (see, Penal Law § 175.05) was improper. Accordingly, the indictment is reinstated in its entirety.
In light of the above determination, the People's remaining contention need not be addressed.
Bracken, J. P., Rosenblatt, Krausman and Goldstein, JJ., concur.