Criminal Possession of a Forged Instrument: A Legal Presumption in New York That May Impact Your Criminal Defense (NY PL 170.27)

If you possess a fake, fraudulent or forged credit card, you may be charged with a “D” felony in New York in violation of New York Penal Law 170.25, Criminal Possession of a Forged Instrument in the Second Degree. It makes no difference whether the credit card is completely fake, has altered names on it, incorrect information on the magnetic strip or is fraudulent in many other ways. In fact, depending on how the credit card is manipulated, you may also face numerous other felonies including, but not limited to, Identity Theft in the First Degree and Criminal Possession of Stolen Property in the Fourth Degree. These crimes are “D” and “E” felonies punishable by up to seven and four years in state prison respectively.

A common defense to the charge of possessing a forged credit card asserted by the accused is that they were not using the alleged fake credit card. Even if they were using the forged credit card, the accused may argue that they were unaware that the credit card was in fact a forged instrument (fake). While this may be a viable defense, prosecutors won’t merely roll over. Certainly, it is the prosecution’s burden to prove your knowledge and intent (Criminal Possession of a Forged Instrument requires your intent to defraud or deceive another), but is there anything in their legal arsenal that may assist them in proving that you knew that the credit or debit card was in fact forged despite your claim?

The answer to the above question is found in New York Penal Law section 170.27. Pursuant to section 170.27, if you possess more than one credit or debit card that is forged, the law permits the prosecutor to instruct the Grand Jury or a judge to instruct a trial jury that it is presumed that you possessed those credit or debit cards with the knowledge that they were forged and with the intent to defraud, deceive or injure another person. In other words, if you only possess one fraudulent credit card the prosecution cannot ask for this presumption, but if you possess more than one credit card a jury will be instructed that they may follow this legal guideline.

It is important to note that the presumption is not mandatory, meaning, a jury may decline to follow it. Regardless, having this instruction read to a jury can be extremely damming to your criminal defense. Whether or not this particular statute is read to the jury may have an impact on your case, but it should not have an impact on your New York criminal defense attorney’s advocacy as it relates to your arrest and recovery of the alleged forged instruments as well any other applicable defense you might.

For information on the crimes of Criminal Possession of a Forged Instrument, Identity Theft and Forgery in New York, please click on the respective links. Additional information, including legal decisions and related criminal statutes, can be found on the New York Criminal Lawyer Blog web page as well as the Crotty Saland PC website.

Founded by two former Manhattan prosecutors, Crotty Saland PC is a New York criminal defense firm representing individuals throughout the New York City region.

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