Interpreting “Written Instrument” In a First Degree Offering a False Instrument for Filing Arrest & Indictment: New York Penal Law 175.35

Offering a False Instrument for Filing and Falsifying Business Records are two potential felony crimes in New York that are almost identical. While “almost” certainly is not “exactly,” one guards against the fraudulent filing of documents within the government and state while the other generally the falsification, deletion or alteration of the business records of a private enterprises. While both crimes involve an intent to defraud, one of the elements that stands out in crimes involving Offering a False Instrument for Filing in both the First and Second Degrees is that the filing of a “written instrument” must take place. What is a “written instrument” you ask? Your New York criminal lawyer or New York criminal defense attorney should be able to answer what a “written instrument” is in the context of New York Penal Law 175.35 (First Degree Offering a False Instrument for Filing) or New York Penal Law 175.30 (Second Degree Offering a False Instrument for Filing), but if not, there is always People v. Headley, NYLJ 1202571734975 (Kings Sup. Ct., Decided September 6, 2012) to provide some guidance.

In Headley, the defendant used a fictitious name to fraudulently obtain paid assignments of independent medical examinations of plaintiffs who sued New York City Transit Authority (“NYCTA”). In using the fictitious name, the defendant “conceal[ed] the fact that the assignments were being awarded to” his company (“Advance”)- someone who also represented NYCTA in defending personal injury lawsuits. As this was a conflict of interest, this would have “disqualified him from being paid to procure medical examinations.” The defendant was charged, amongst other things, with Offering a False Instrument for Filing in the First Degree (NY PL 175.35). Upon the defendant’s motion to reargue, the Court upheld the charge.

The crux of this case hinges upon whether the instruments filed – a business proposal and an IRS W-9 form – constitute “written instruments” for the purpose of prosecution under PL 175.35, First Degree Offering a False Instrument for Filing. The People argued that they do; defendant argued that they do not based upon the fact that neither instrument is a formal or legal document “evidencing legal rights or duties between NYCTA and [defendant.]”

In pertinent part, PL 175.35 states that a defendant is guilty of violating First Degree Offering a False Instrument for Filing when, with an intent to defraud, he presents a written instrument, knowing that it contains false information, to a state’s public corporation under the belief that it will become part of the said corporation’s record.

“Written Instrument”, as defined by PL 175.00(3), means, in short, “any instrument containing written or printed matter used for the purpose of reciting, embodying, conveying or recording information, which is capable of being used to the advantage or disadvantage of some person.”

The Court, in substantiating their stance, look to the Court of Appeals case People v. Bel Air Equipment Corporation, 39 N.Y.2d 48 (1976). In interpreting the purpose of PL 175.35, the Court wrote that this statute is to “guard against the possibility that officers of the State…would act upon false or fraudulent instruments that had been filed with their offices in the belief that such documents were accurate and true” Bel Air at 54. Therefore, the People must show that there was a false filing of a written instrument and that the intent of the defendant was to defraud the State. Id. A document, according to the Court of Appeals, is an instrument [under PL 175.00(3)] if it not only falls within the literal scope of the statute but “is of a character that the mischief the statute seeks to prevent would ensue if the documents were filed” Bel Air at 54-55.

In looking to the purpose of this statute and other case law, the Court determined that the defendant, “by concealing his true identity….was interfering with the ability of a government agency to protect itself [in personal injury lawsuits], and ultimately the public, from potential ‘mischief’ that could result from counsel for the agency separately doing business with the agency.” Quoting from a prior opinion, the Court wrote that “[m]aintaining a fair vendor selection process free of any potential conflicts of interest is a legitimate function of the NYCTA.”

In concluding their opinion, the Court wrote that the business proposal and W-9 form, relied upon by the NYCTA, “conveyed information to the NYCTA which was capable of being used to defendant’s advantage or to the disadvantage of the NYCTA” because the information ultimately interfered with the NYCTA’s selection process and ability to identify vendors accurately. Therefore, the Court determined that the business proposal and W-9 form fell within the “literal scope” of the definition of written instrument as set forth in PL 175.00(3). Therefore, the defendant was guilty of Offering a False Instrument for Filing in the First Degree.

While the brief analysis of Headley seemingly makes the definition of “written instrument” fairly clear, never forget that law is far from mathematical. Every case and legal review turns on the evidence contained in a complaint, indictment or that which is before the court. Never assume each element of the crime you are charged with is satisfied until you, and more importantly your criminal attorney, have completed your “homework.”

To learn about the degrees of Offering a False Instrument for Filing, Falsifying Business Records or any other New York White Collar crime, the links in this entry as well as the websites and blogs listed below are all tremendous resources.

Crotty Saland PC, a New York criminal defense firm founded by to former Manhattan Assistant District Attorneys, represents clients in all White Collar criminal investigations, arrests and trials throughout New York City and her suburban communities.

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