NY Criminal Law: Lacking Intent in Matters Involving Forgery, Forged Instruments and Falsifying Business Records

An introductory class of criminal law in NY would likely teach any future attorney that if there is no intent to commit a particular crime that requires such intent, then there should be a valid defense to that particular crime. This could not be more true than in cases involving Forgery, Criminal Possession of a Forged Instrument and Falsifying Business Records.

The first two crimes, Forgery and Criminal Possession of a Forged Instrument, contain legal language that the individual have the “intent to defraud.” Although not always a simple task or the correct way to defend against these charges if the intent is clear, your criminal defense attorney needs to argue, if applicable, that you never intended on defrauding anyone (WOW! That was easy!). While the analysis of this defense is simple on its face, clearly each case requires an in depth review to determine how to establish the lack of intent.

Unlike the crimes of Forgery and Criminal Possession of a Forged Instrument, defending against a charge of Falsifying Business Records can be an easier prospect due to provisions in the New York Penal Law. Pursuant to Penal Law Section 175.15, it is an affirmative defense that the defendant who falsified the particular records was a clerk, bookkeeper or other employee who, without personal benefit, merely executed the orders of his or her employer of of a superior officer or employee generally authorized to direct his or her activities. See also, People v. Bloomfield 30 A.D.3d 151 (1st Dept. 2006).

The above section protects “pawns” involved in a greater scheme. That is, people who appear to be falsifying records but are doing so either unwittingly or at the behest of their boss without any benefit. This defense to the crime of Falsifying Business Records has successfully been used by Jeremy Saland in the defense of his clients. Again, while each case must be assessed to determine the best way to mount a defense, sometimes that defense is no further than the Penal Law itself.

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