A New York White Collar Criminal Defense Primer: Defining Offering a False Instrument for Filing in the First (NY Penal Law 175.35) & Second (NY Penal Law 175.30) Degrees

While your “average” white collar crime case may not include the offenses of Offering a False Instrument for Filing in the First Degree (New York Penal Law 175.35) and Offering a False Instrument for Filing in the Second Degree (New York Penal Law 175.30), the former Manhattan prosecutors at Crotty Saland PC still believe it is important for our readers to have a grasp on this section of the New York Penal Law. Therefore, the following article will address these crimes.

Offering a False Instrument for Filing in the Second Degree (NY Penal Law 175.30):

A person is guilty of Offering a False Instrument for Filing in the Second Degree when, knowing that a written instrument contains a false statement or false information, he offers or presents it to a public office or public servant with the knowledge or belief that it will be filed with, registered or recorded in or otherwise become a part of the records of such public office or public servant.

Offering a False Instrument for Filing in the Second Degree is a class A misdemeanor punishable by up to one year in jail.

Offering a False Instrument for Filing in the First Degree (NY Penal Law 175.35): A person is guilty of Offering a False Instrument for Filing in the First Degree when, knowing that a written instrument contains a false statement or false information, and with intent to defraud the state or any political subdivision, public authority or public benefit corporation of the state, he offers or presents it to a public office, public servant, public authority or public benefit corporation with the knowledge or belief that it will be filed with, registered or recorded in or otherwise become part of the records of such public office, public servant, public authority or public benefit corporation.

Offering a False Instrument for Filing in the First Degree is a class E felony punishable by up to four years in prison.

To shed further light on these offenses, William Donnino, the commentator in the annotated code has stated:

“The basic crime of ‘offering a false instrument for filing’ is directed at the person who, knowing that a ‘written instrument’ [defined in 、 175.00(3)] has false recitals, ‘offers or presents’ the instrument to a ‘public office’ or ‘public servant’ [defined in 、 10.00(15)] with the ‘knowledge or belief’ that it will become part of the records of that public office or servant [、 175.30].”

“Notably, the crime is limited to written instruments which contain false recitals as opposed to forged instruments; the instrument need only be offered or presented, not accepted or received, by the public office or servant; and the defendant need only have a subjective belief, not actual knowledge, that the instrument will become part of the records of the public office or servant.”

Donnino further states that:

“The crime of offering a false instrument for filing is divided into two degrees.The basic crime is offering a false instrument in the second degree [、 175.30] and that crime is predicated on ‘knowing’ that the written instrument offered for filing contains a false statement or false information. If that basic crime is also committed ‘with an intent to defraud’ the State or any political subdivision, public authority or public benefit corporation of the State, then the defendant is guilty of offering a false instrument for filing in the first degree [、 175.35]. (The first-degree statute was amended in 1998 to overrule People v. Miller, 1987, 70 N.Y.2d 903, 524 N.Y.S.2d 386, 519 N.E.2d 297 by making the crime applicable to filings with a public authority or public benefit corporation. L. 1998, c. 99.)”

“By that two-degree structure, the drafters sought to distinguish the level of culpability between, for example, the person who, out of vanity, knowingly falsifies his or her age in an application for a license in which the age of the applicant is not significant, and one who corruptly defrauds the State out of huge sums through false documents submitted in connection with a building contract. See Staff Notes of the Commission on Revision of the Penal Law. Proposed New York Penal Law. McKinney’s Spec. Pamph. (1964), p. 366.”

It is worth noting that these offenses are very similar to the white collar crimes of Tampering with Public Records (note the same “intent to defraud” language that raises the level of the offense) and Falsifying Business Records.

If you or a loved one are charged with or are being investigated for any white collar crime contact Crotty Saland PC to start taking the steps to protecting your liberty, livelihood and good name.

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