Opinion
22127
July 18, 2002
Abraham J. Mayers, New York City, for defendant.
Robert M. Morgenthau, District Attorney, New York City (Jennifer Loyd of counsel), for plaintiff.
OPINION OF THE COURT
Defendant is charged with Criminal Possession of a Forged Instrument in the Third Degree (in violation of Penal Law § 170.20) and Forgery in the Third Degree (in violation of Penal Law § 170.05). By omnibus motion he moves, inter alia, for an order dismissing the charges as facially insufficient.
An information is facially sufficient if it contains facts of an evidentiary character tending to support the charges. Criminal Procedure Law section 100.15(3); People v. Dumas, 68 N.Y.2d 729 (1986). Furthermore, the information must contain non-hearsay allegations which establish, if true, every element of the offense charged and defendant's commission thereof. CPL § 100.40(1)(b)(c). An information which fails to satisfy these requirements is fatally defective. People v. Alejandro, 70 N.Y.2d 133, 139 (1987).
The complaint alleges that the deponent police officer "observed the defendant displaying on the windshield of defendant's vehicle" a forged New York State Department of Motor Vehicles Safety/Emission inspection certificate. The complaint alleges as the officer's bases for determining that the certificate was forged (1) that the expiration date had been changed from 3/10/02 to 8/10/02, (2) that the make of the vehicle had been changed to Mazda, (3) that there were erasure marks in the altered portions of the certificate, and (4) that the new information had been written on the certificate in pencil, instead of computer-generated print.
Although defendant moves to dismiss the complaint for facial insufficiency, his moving papers fail to specify any grounds for the motion. However, facial sufficiency is a jurisdictional requirement. People v. Case, 42 N.Y.2d 98, 99 (1977). Thus, where the court detects reasons for facial insufficiency, it may dismiss the action for those reasons, despite the fact that the defendant did not raise those issues in his motion papers. People v. Lugo, NYLJ, Dec. 14, 1998 at 30, col. 5 (Crim.Ct. Bx. Co.). Upon defendant's motion and its own review of the information, the court finds the complaint facially insufficient as to both charges.
Criminal Possession of a Forged Instrument in the Third Degree
A person is guilty of criminal possession of a forged instrument in the third degree when, with knowledge that it is forged and with intent to defraud, deceive or injure another, he utters or possesses a forged instrument. P.L. § 170.20.
The instant complaint fails to adequately allege several of these elements. The first such deficiency is its failure to allege facts to demonstrate that defendant possessed the forged instrument.
The term "possess" means "to have physical possession or otherwise to exercise dominion or control over tangible property." P.L. § 10.00(8). The term includes actual or constructive possession. People v. Torres, 68 N.Y.2d 677 (1986); People v. Sierra, 45 N.Y.2d 56, 60 (1978); People v. Fernandez, 270 A.D.2d 91 (1st Dep't), appeal denied, 95 N.Y.2d 834 (2000). Defendant's alleged possession of the inspection certificate appears to be predicated upon his possession of the vehicle with the windshield upon which the document was displayed.
To demonstrate constructive possession, "the People must show that the defendant exercised `dominion and control' over the property by a sufficient level of control over the area in which the contraband is found or over the person from whom the contraband is seized." People v . Manini, 79 N.Y.2d 561, 573 (1992).
The instant complaint contains no factual allegations establishing that defendant possessed the vehicle. It fails to allege any facts demonstrating defendant's ownership, operation of, or physical relationship to the vehicle. People v. Rivera, 82 N.Y.2d 695 (1993); People v. Velez, 149 Misc.2d 592, 594 (Crim.Ct. Kings Co. 1990); People v. Simmons, 139 Misc.2d 859, 860-61 (Crim.Ct. N.Y. Co. 1988). Instead, the complaint merely alleges defendant's possession in conclusory language, by referring to the vehicle as "defendant's vehicle." In the absence of factual allegations that defendant possessed the vehicle, there are no facts from which his possession of the certificate on its windshield may be inferred.
The complaint could be construed to adequately allege defendant's utterance of the certificate, in alleging that he was "displaying" it on the windshield of his vehicle. However, the absence of another requisite element of this crime renders it unnecessary for the Court to make this determination.
Critically, the complaint fails to allege any facts from which defendant's knowledge of the forgery may be inferred. It is well settled that knowledge by the defendant that the instrument is forged is an essential element of this offense. People v. Johnson, 65 N.Y.2d 556, 560 (1985). Guilty knowledge of forgery may, of course, be shown circumstantially by conduct and events. Id. at 561.
One court of coordinate jurisdiction found such circumstantial evidence in allegations of defendant's driving a car with a forged license plate and with a suspended license. People v. Stephens, 177 Misc.2d 819 (Crim.Ct. Kings Co. 1998). The Court noted the duties imposed upon the operator of a motor vehicle by Vehicle and Traffic Law Sections 319(3) and401 to possess proper registration and insurance. Thus, the Court held, the defendant's inability to present those documents, together with the improper form of the registration plate and his apparent disregard of the statutory requirement to be properly licensed while operating a vehicle, constituted circumstantial facts from which, if true, it could be inferred that defendant knew the plate was forged. Id. at 824.
Here, as in Stephens, there is a statutory requirement for proper documentation: display of a valid certificate of inspection before a vehicle may be parked or operated. VTL § 306(b). However, defendant's apparent failure to comply with this duty, without more, fails to establish circumstantially his knowledge of the forged nature of the certificate. In the absence of adequate circumstantial evidence to establish this element of the crime, the charge of Criminal Possession of a Forged Instrument in the Third Degree is facially insufficient. People v. Singh, NYLJ May 11, 1999 at 28, col. 1 (Crim.Ct. N.Y. Co.); People v. McCabe, 157 Misc.2d 373 (Crim.Ct. Kings Co. 1993). Cf. People v. Fletcher, 29 A.D.2d 838 (4th Dep't 1968) (reversing conviction in the absence of proof from which it might be inferred that defendant knew that a doctor's prescription was forged). Accordingly, this charge is dismissed.
Forgery
A person is guilty of forgery in the third degree when, with intent to defraud, deceive or injure another, he falsely makes, completes or alters a written instrument. P.L. § 170.05. The essence of the crime is the execution of an instrument which is not authentic. People v. Adkins, 236 A.D.2d 850 (4th Dep't), appeal denied, 90 N.Y.2d 854 (1997). The complaint fails to allege facts to show that defendant executed the alterations on the inspection certificate. Therefore, this charge is dismissed for facial insufficiency. People v. Pena, NYLJ, April 14, 1997 at 29, col 6 (Crim.Ct. Bx. Co.).
The People have leave to refile a timely, facially sufficient information. People v. Nuccio, 78 N.Y.2d 102 (1991).
In light of the dismissal of both charges, defendant's remaining motions are rendered moot.