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

It does not matter if you are being prosecuted in Manhattan, Bronx, Brooklyn, Queens, White Plains, Mt. Vernon or Yonkers – the law is clear on Forgery and Criminal Possession of a Forged Instrument. Either it is or it is not.

Sounds simple enough, but unfortunately, it may take an experienced criminal defense attorney to ascertain whether the crime prosectors are charging you with is supported by the law. Turning our attention to Forgery and Criminal Possession of a Forged Instrument as it specifically relates to genuinely authorized writings or documents issued by an agency or other person, it is important to note that what seems like a crime often is not.

At bottom, if a person possesses or creates (“creates” in this context means completing by supplying the information and not actually making a new item) this type of instrument using a fictitious name or alias, there is no crime of Forgery or Criminal Possession of a Forged Instrument. The easiest way to understand this rule is if a person, let us say Samuel Clemens, possesses a New York State Driver’s License. In this hypothetical, Mr. Clemens uses his “pen name” (alias or fictitious name) as the listed name on the legitimately issued license. In other words, Mr. Clemens’ license reads “Mark Twain.”

Dealing with the first element, it is clear that this type of instrument is one that is authorized and issued by an agency, i.e., the New York State Government and DMV. Looking at the second issue as discussed above, since the name on the license does not belong to someone else, but is an alias (Mark Twain was the pen name of Samuel Clemens), there is no Forgery or Criminal Possession of a Forged Instrument because supplying an alias is permissible.

Obviously, each case must be reviewed to see if this rule applies, but it really should be just that simple. Unfortunately, prosecutors sometimes misunderstand this rule, dig their heels in, and possibly proceed with their cases.

Updated: