Can You Be Convicted of Forgery and Criminal Possession of a Forged Instrument in New York with Respect to the Same Instrument: New York Penal Law 170.35 & Your Forgery Defense

New York Forgery offenses, pursuant to New York Penal Law sections 170.05, 170.10 and 170.15, are not only distinct crimes within the realm of Forgery, but they are also separate from the crime of Criminal Possession of a Forged Instrument pursuant to New York Penal Law sections 170.20, 170.25 and 170.30. In light of the fact that they are unique crimes, can prosecutors charge you with forging as well as possessing the instrument you are alleged to have forged? If you can be charged with forging and possessing the same forged instrument (such as a passport or counterfeit dollar), can you also be convicted of Forgery and Criminal Possession of a Forged Instrument as well?

New York Penal Law 170.35 gives the simple answer to this question. According to New York Penal Law 170.35, “[i]n any prosecution for [C]riminal [P]ossession of a [F]orged [I]nstrument, it is no defense that the defendant forged or participated in the forgery of the instrument in issue; provided that a person may not be convicted of both [C]riminal [P]ossession of a [F]orged [I]nstrument and [F]orgery with respect to the same instrument.”

Applying the above statute to our hypothetical involving a forged passport, one could be charged with both Forgery and Criminal Possession of a Forged Insturment as to the passport, but ultimately one could not be convicted as to both offenses for the passport. It is one or the other.

It is important not to misconstrue the statute. For example, you may be charged with multiple counts of Forgery for the same instrument based on different theories or subsections of the statute. For example, the passport may violate different sections of the law. If, however, you charged with possessing and forging the one particular instrument, a conviction on both crimes cannot stand. If you believe this defense may be applicable to the crimes you are accused of, consult with a New York criminal defense attorney experienced in this body of law.

Crotty Saland PC is a criminal defense firm located in New York. Founded by two former Manhattan prosecutors, Crotty Saland PC represents clients throughout the New York City region.

Updated: