Forgery, Falsifying Business Records & Fraud Crimes in New York: Defining “Intent to Defraud” & Your Criminal Defense

A critical element of numerous fraud crimes in New York is one’s “intent to defraud.” This specific language is often in the criminal statute itself and is an essential part of numerous crimes prosecutors must prove beyond a reasonable doubt including the crimes of Forgery (New York Penal Law sections 170.05 through 170.15), Criminal Possession of a Forged Instrument (New York Penal Law sections 170.20 through 170.30) and Falsifying Business Records (New York Penal Law sections 175.05 through 170.10). More times than not, “intent to defraud” is associated with some form of theft or stealing. While larceny is often the criminal act or motivation behind the “intent to defraud,” the law is much more broad. In fact, “intent to defraud” is not defined in the New York Penal Law. Instead, it is defined through case law.

According to Black’s Law Dictionary (not the New York Penal Law), “intent to defraud” means an “an intention to deceive another person, and to induce such other person, in reliance upon such deception, to assume, create, transfer, alter or terminate a right, obligation or power…” The Court of Appeals, New York’s highest level court, has made it overwhelming clear that “intent to defraud” does not require an intent to steal, but can be formulated “for the purpose of leading another into error or disadvantage.” People v. Briggins 50 N.Y.2d 302, 309 (1980) (concurring opinion)(Jones, J.). Taking this even further, other legal decisions have fortified that “intent to defraud” need not be tied to an underlying Grand Larceny (Article 155 of the New York Penal Law) type scheme. In fact, in People v. Kase 53 N.Y.2d 989 (1981), “intent to defraud” was found where a defendant filed a false statement with a public agency. In that case, there was no desire or attempt to steal or obtain any amount of wealth. Instead, the defendant sought to interfere and disrupt the State’s ability to carry out the law.

Prior to serving my clients as a New York criminal defense attorney, I served as a prosecutor under Robert Morgenthau in the Manhattan District Attorney’s Office. As a prosecutor, I first dealt with the issue of “intent to defraud” after a year long investigation where hundreds of students had multiple individual take their GRE, GMAT, TOEFL and other examinations on their behalf so they could gain admission to graduate schools throughout New York, the United States and Canada. Charged with crimes including Identity Theft (New York Penal Law sections 190.78 through 190.80), Forgery and Criminal Possession of a Forged Instrument, one criminal defense attorney argued in his motion to dismiss the indictment that there was no “intent to defraud” because there was no tangible property of any kind that the “victim” universities were being defrauded of. Citing the cases mentioned above along with others, the court held that although there was no financial or property gain, the defendants still exhibited an “intent to defraud.”

The jury is still out on what “intent to defraud” encompasses, but it is clear that it is not limited to financial and property gain.

For extensive information on the crimes of Criminal Possession of a Forged Instrument, Grand Larceny, Identity Theft and other New York Fraud Crimes (including Forgery and Falsifying Business Records), please follow the highlighted links. Further information on other crimes, judicial decisions and interesting cases in the news, please review the New York Criminal Lawyer Blog at NewYorkCriminalLawyerBlog.Com.

A New York criminal defense firm representing clients throughout New York City and the region, Crotty Saland PC is conveniently located in lower Manhattan by the State and Federal Courts.

Updated: