Opinion
November 10, 1982
Appeal from an order of the Supreme Court at Special Term (Ellison, J.), entered May 20, 1982 in Chemung County, which granted defendant's motion to reduce the charge for which he was indicted from criminal possession of a forged instrument in the first degree to criminal possession of a forged instrument in the second degree. In February, 1982, defendant was indicted by a Chemung County Grand Jury for the crime of criminal possession of a forged instrument in the first degree. Subsequently, defendant moved in the Chemung County Court to dismiss the indictment or, in the alternative, to reduce the charge from first degree to second degree criminal possession of a forged instrument. Defendant based the motion upon the argument that the "forged instrument", a New York State unemployment check, was a "commercial instrument" as specified in second degree criminal possession (Penal Law, § 170.10, subd 1) and not "[p]art of an issue of money, stamps, securities or other valuable instruments issued by a government" as specified in first degree criminal possession (Penal Law, § 170.15, subd 1). Prior to a determination of the motion by County Court, this case was removed to the Supreme Court. That court granted defendant's motion insofar as it reduced the charge to second degree criminal possession. This appeal by the People ensued. The instant order must be reversed. As Supreme Court found, there were sufficient facts to support an indictment for a lesser degree of the same crime. Accordingly, it would have been error to dismiss the indictment ( People v. Frisbie, 40 A.D.2d 334) and the court was without authority to reduce it (see People v. Cruz, 84 A.D.2d 962; People v. Maier, 72 A.D.2d 754). The motion to dismiss should have been denied in all respects. Order reversed, on the law, defendant's motion denied and original indictment reinstated. Kane, J.P., Main, Casey, Weiss and Levine, JJ., concur.