New York Criminal Possession of a Forged Instrument: Judge Rules Mere Possession Sufficient to Establish Knowledge and Intent

Recently, Judge Mandelbaum of the New York County (Manhattan) Criminal Court issued a decision regarding Criminal Possession of a Forged Instrument in the Third Degree that is a setback for all defendants charged with Criminal Possession of a Forged Instrument in the New York City area from the Bronx and Brooklyn to White Plains and Yonkers in Westchester County. Specifically, Judge Mandelbaum held on April 22, 2008, that a prosecutor does not need to allege that a defendant is aware that a New York State issued identification card in his or her possession is fake or that he or she intended to improperly use that card.

In People v. Barona, 2007NY089837, the defendant possessed a false or forged New York State Identification Card which he had in his hand. Denying the defendant’s motion to dismiss, Judge Mandelbaum theorized that “it is in-conceivable that the very person in whose name the card has ostensibly been issued would not know that the card is a forgery.” Furthermore, if a card is “legitimate,” Judge Mandelbaum asserted, common sense dictates that the person carrying it would have to know whether he applied and ultimately received the state issued card in his own name. Clearly then, “the ostensible bearer must therefore know that such a card is forged” and, therefore, it can reasonably be inferred that there was an intent to defraud or deceive because there is no other reason to possess a forged state issued card.’

While this case is a step backwards for defendants charged with Criminal Possession of a Forged Instrument in New York, it is important to note that the case is persuasive and not controlling on other courts and judges in the state. As a former prosecutor under Robert Moregenthau in the Manhattan District Attorney’s Office and one of the original members of the Identity Theft Unit, I am intimately familiar with this statute and others relating to Forgery, Identity Theft and Fraud. As judges continue to rule favorably for prosecutors who bring these types of charges, it is imperative to retain an experienced criminal defense attorney in this particular area to explain the issues, listen to your concerns, and formulate the best plan to attack the prosecutor’s case.

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