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Forged Instruments and Forgery in NY: Attacking a Prosecutor’s Case Part I

In New York, Forgery (Penal Law 170.05, 170.10 and 170.15) is a crime that seems obvious and straightforward, but is often far from it. As the most senior member of the first prosecutors assigned to the Manhattan District Attorney’s Office Identity Theft Unit and currently a criminal defense attorney, I “lived,” “ate” and “breathed” Forgery, Identity Theft, Money Laundering and other fraud investigations.

The mistake that a criminal defense attorney must look out for is if a prosecutor, from down in the Bronx up to White Plains in Westchester County, is charging Forgery where the document that is allegedly forged is not a genuinely issued document. In other words, the instrument is bogus and fabricated. For example, if an individual creates a New York, Connecticut and New Jersey combination state identification card in their own name, then no Forgery can exist because, in part, such an identification does not exist or establish any rights for the holder. Although this is an outrageous example, the underlying issue is that the forged document or writing cannot be a wholly fabricated or fictitious and in the person’s name.

Generally, whenever the instrument is wholly fake and fabricated by a defendant, forgery cannot be charged. If a person drafts a will or deed that is fake and signs a fake name there is no Forgery. If a counterfeit will or deed is signed with the defendant’s alias there is not Forgery. However, a Forgery can be charged where a defendant uses another’s real name on that bogus will or deed because a real person’s signature is being forged.

This general analysis, along with court decisions and case law, is one that any criminal defense attorney should be armed with and ready to use for your benefit. In the event you are charged with the crime of Forgery, this legal challenge may be an avenue for your vindication.

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