Opinion
2005NY085702.
Decided March 14, 2006.
Robert M. Morgenthau, District Attorney, New York County (Kenn Kern of counsel), for the People.
Steven Banks, The Legal Aid Society, New York (Yevgeny Strupinsky of counsel), for defendant.
The defendant is charged with eight counts of forgery in the third degree, in violation of Penal Law § 170.05, and eight counts of criminal possession of a forged instrument in the third degree, in violation of PL § 170.20.
Defendant, in an omnibus motion, seeks an order: (1) dismissing the information for facial insufficiency; (2) suppressing all testimony concerning defendant's post-arrest conduct or, in the alternative, granting a Dunaway Hearing; (3) precluding the People from introducing certain evidence at trial; (4) compelling the People to disclose statements; (5) compelling a Bill of Particulars and Discovery; and (6) directing the preservation and production of all recorded police communications.
For the reasons stated below, the Court grants the motion to dismiss for facial insufficiency and therefore need not address the remaining portions of the motion.
The defendant moves to dismiss the instant information for facial insufficiency (CPL §§ 100.15 and § 100. 40). Under CPL § 100.15, every accusatory instrument must contain two elements: (1) an accusatory portion designating the offense charged, and (2) a factual portion containing evidentiary facts which support or tend to support the charges stated in the accusatory portion of the instrument. These facts must provide reasonable cause to believe that the defendant has committed the crime alleged in the accusatory portion of the accusatory instrument ( See People v. Dumas, 68 NY2d 729).
In the Criminal Court Complaint, Transit Division Police Officer Patrick Mulchay states that he observed the defendant inside a subway station "bend 4 metrocards and then swipe the bent metrocards at a turnstile . . . in an attempt to enter the subway system without paying a fare. [Officer Mulchay] further states that he recovered 4 bent metrocards from the defendant's hand, and an additional 4 bent metrocards from the defendant's jacket pocket, and that all 8 metrocards were bent in such a manner as to allow access into the subway system without deducting a fare."
The People assert that these allegations establish the factual basis for charging defendant with eight counts of violating PL § 170.20 and eight counts of violating PL § 170.05. Under Penal Law § 170.20, a person is guilty of criminal possession of a forged instrument in the third degree if the person 1) utters or possesses a forged instrument 2) with knowledge that it is forged and 3) with intent to defraud, deceive and injure another. A violation of Penal Law § 170.05, forgery in the third degree, is established where a person 1) falsely makes, completes or alters 2) a written instrument 3) with intent to defraud, deceive and injure another. In this case, the complaint alleges that the defendant violated PL § 170.05 by falsely altering the Metrocards in his possession. A forged instrument is a written instrument which has been falsely made, completed or altered. (PL § 170.00).
Defendant essentially argues that the information is insufficient because it does not properly assert that bending a Metrocard is a "false alteration" of a written instrument, and because there is no expert allegation as to the nature of the alteration of the Metrocard. In their response, the People contend that the information is sufficient on its face, but they do not specifically address the arguments raised by defendant.
Defendant acknowledges that a Metrocard is a written instrument within the meaning of PL § 170.00(1). ( see People v. Roman, 8 Misc 3d 1026 A [Crim Ct, NY County 2005]); People v. Lopez, 8 Misc 3d 873 [Crim Ct, Kings County 2005]; People v. Griffin, 10 Misc 3d 1057 A [Crim Ct, Kings County 2005]). The issue in this case is whether a person who bends a Metrocard "falsely alters" it so that it becomes a "forged instrument." If a bent Metrocard is not "falsely altered," then defendant cannot be liable under either PL § 170.05 or § 170.20.
To answer this question, I turn first to the definition of "falsely alter." PL § 170.00(6) states: "A person falsely alters' a written instrument, when, without the authority of anyone entitled to grant it, he changes a written instrument, whether it be in complete or incomplete form, by means of erasure, obliteration, deletion, insertion of new matter, transposition of matter, or in any other manner, so that such instrument in its altered form appears or purports to be in all respects an authentic creation of or fully authorized by its ostensible maker or drawer."
The critical portion of this section, with respect to the issue now before me, is the requirement that a "falsely altered" written instrument "appears or purports to be in all respects an authentic creation." The New York Transit Authority does not issue bent Metrocards. Therefore, a bent Metrocard is not a "forged instrument" since, in its altered form, no one would mistake it for "an authentic creation of or fully authorized by its ostensible maker or drawer." ( See People v. Lopez, 8 Misc 3d at 877; see also People v. Griffin, 10 Misc 3d 1057 A at *3). Put another way, if a subway clerk tendered a bent Metrocard to a consumer, the consumer would certainly reject it, because it would not appear to be authentic. A bent Metrocard which a consumer would reject is not a "forged instrument" within the meaning of the statute.
In reaching this conclusion, this Court follows the decision in People v. Lopez, ( 8 Misc 3d 873 [Crim Ct, Kings County 2005]), in which the court held that the swiping of a bent Metrocard was neither forgery nor possession of a forged instrument since a bent Metrocard "does not, and cannot, purport to be an authentic, fully authorized Metrocard as issued by the Transit Authority since once it is bent, it no longer resembles the card issued by the Transit Authority." ( Id. at 877-878).
The Court is aware of the contrary holdings in People v. Roman (8 Misc 3d 1026A [Crim Ct, NY County 2005]), People v. Verastegui (8 Misc 3d 1026A [Crim Ct, NY County 2005]), and People v. Dixson, 9 Misc 3d 358 [Crim Ct, Kings County 2005], and respectfully declines to follow them. In those cases, the courts all determined that bent Metrocards constituted "forged instruments" since they fooled the eye of the electronic reader. However, that is not the issue. The statute does not define a forged instrument based on how the instrument appears to a machine. Rather, the plain language of PL 170.00(6) requires that a forged instrument "appear or purport to be, in all respects an authentic creation." (Emphasis added). A bent Metrocard does not meet this standard.
Consequently, this Court agrees with the holding of Lopez and holds that a bent Metrocard is not a forged written instrument within the meaning of Article 170 of the Penal Law. Consequently, the eight counts of Forgery in the Third Degree pursuant to PL § 170.05, and the eight counts of Criminal Possession of a Forged Instrument in the Third Degree in violation of PL § 170.20, must be dismissed as facially insufficient.
Even if this Court were to find that a bent Metrocard is a forged instrument within the meaning of PL § Article 170, the Court would still dismiss the information for facial insufficiency. To survive a challenge to its facial sufficiency, a complaint charging violations of Penal Law §§ 170.20 and 170.05 must allege facts establishing that defendant possessed or altered the alleged forged instrument "with intent to defraud, deceive or injure another." Moreover, a complaint charging violation of Penal Law §§ 170.20 requires an allegation that the defendant knew that it was forged. ( People v. Johnson, 65 NY2d 556, 561).
The only facts alleged in the People's complaint to support an inference that the defendant intended to use the Metrocards to defraud another are Officer Mulchay's statements that defendant swiped the cards "in an attempt to enter the subway station without paying a fare," and that the cards were bent "in such a manner as to allow access into the subway system without deducting a fare." However, Officer Mulchay fails to set forth any experience or training on which he bases his conclusion that the cards were bent in such a way as to permit defendant to enter without paying a fare. Unlike the deponent officer in Lopez, Officer Mulchay did not base his conclusion on his "professional training as a police officer."( People v. Lopez, 8 Misc 3d at 874; See also People v. Dixson, 9 Misc 3d at 366-367 ["the complaint clearly details the officer's training and experience in forged documents"]; In the Matter of DU, 192 Misc 2d 601 [Fam Ct, Queens County 2002] [Deponent Officer knew, based on his experience as a member of the New York City Transit Bureau Vandal Squad, that the Metrocard at issue was altered in such as way as to permit an additional fare]). Therefore, there is no evidentiary basis for Officer Mulchay's conclusory statement that defendant's Metrocards were bent so as to allow entry without paying a fare.
This situation is thus like that in People v. Dumas ( 68 NY2d 729) where the Court of Appeals reversed the order of the Appellate Term and reinstated the order of the criminal court which had dismissed the information as facially insufficient. The Court found that the information lacked evidentiary facts showing the basis for the officer's conclusion that the substance sold was marijuana. The information did not include any field tests or laboratory tests which established that the substance sold by defendant was in fact marijuana. Similarly here, the information did not contain any evidentiary facts to establish that the Metrocards were in fact bent in such a way to alter the electronic code and permits a person to enter without paying a fare.
In the absence of an adequate allegation that the Metrocards allegedly found on defendant were bent so as to allow defendant to enter without paying a fare, the information fails to set forth any facts to show that defendant intended to use the bent Metrocards to defraud another. Moreover, the information lacks any statements showing that defendant knew the Metrocards to be forged. Consequently, for this independent reason, the accusatory instrument must be dismissed.
Since this Court is granting the motion to dismiss the accusatory instrument, the Court need not address the remaining issues raised by the defendant.
This constitutes the decision and order of the Court.