New York Criminal Possession of a Forged Instrument: Average Citizen Standard?

Recently, I posted a decision issued by a Manhattan Criminal Court Judge from April 2008 finding that mere possession of a fake ID (fake identification card) was sufficient to establish intent and knowledge to sustain the charge of Criminal Possession of a Forged Instrument under New York Penal Law Section 170.20. Unlike that decision, a recent case out of Kings County (Brooklyn) is much more favorable for defendants charged with Criminal Possession of Forged Instrument in a different context and a case that criminal defense attorneys should be aware of.

In People v. Erwin Kouris, Brooklyn Criminal Court Judge Pickett found that a complaint against the defendant charging Criminal Possession of a Forged Instrument should be dismissed for facial insufficiency. In that matter, the defendant was charged with numerous Vehicle and Traffic Law (VTL) violations as well as Criminal Possession of a Forged Instrument. Judge Pickett noted that in order to sustain the Criminal Possession of a Forged Instrument charge, the accusatory instrument must allege knowledge of forgery and intent to defraud on the part of the defendant. In other words, a defendant’s mere possession may not be sufficient depending on the circumstances. Therefore, a dismissal may be warranted.

In the Kouris case, the defendant was driving a vehicle that had a fake inspection card, registration card and insurance card. Although the defendant possessed these documents in that he was the driver of the vehicle, there was nothing in the accusatory instrument indicating he had knowledge that the documents were fraudulent or that he intended to defraud. The Court concluded that merely driving the vehicle, without any more evidence, is not sufficient to establish knowledge and intent. Although it was not specified, a means to establish these elements might have been an inculpatory statement by the defendant or evidence that the car was his car as opposed to a car that he was merely borrowing. In this regard, the Court stated that “it would be patently unfair to expect an operator who may have just borrowed a vehicle for a routine errand to know that the license plates, the insurance card, inspection and registration receipts are forged.” Furthermore, unlike a three dollar bill that clearly does not exist, “not all forgeries are ‘readily apparent to the average citizen.'”

Criminal defense attorneys and their clients can take a few lessons from this case. First of all, in some cases mere possession of a forged instrument may be enough to establish knowledge and intent. Such examples might be a forged driver’s license or identification card. On the other hand, some forgeries are not “readily apparent” to the average citizen. This may include money that looks real (not a three dollar bill!) or, as in the Kouris case, a fake insurance registration card on a car that is not the defendants. Additionally, it appears that the defendant in Kouris did not complicate matters by making statements that would hurt him. Whatever the circumstance you might find yourself in, you should always exercise your rights to speak to a criminal defense attorney who can help attempt to prevent matters from getting out of hand and escalating.

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