Second Degree Forgery & Credit Card Use: Are You Guilty of NY PL 170.10 Even if You Make Proper & Timely Payments to Another Person’s Credit Card

Regardless of the degree or level of the crime, Forgery is a very serious offense as defined in the New York Penal Law. While the misdemeanor offense of New York Penal Law 170.05 is punishable by a sentence of up to one year in jail, the Second and First Degree Forgery crimes can land a defendant in state prison for as much as seven and fifteen years respectively. Forgery in the First Degree, pursuant to New York Penal Law 170.15, is a class C felony and Forgery in the Second Degree, pursuant to New York Penal Law 170.10, is a class D felony. Irrespective of the degree of Forgery you are arrested or investigated for, there are certain traits or elements of the crime that you and your criminal lawyer will likely spend time assessing and analyzing. For example, one of the essential pieces of a Forgery arrest is whether or not you, as an accused, had the “intent to defraud, deceive or injure” another party.

Before addressing what it means to have an intent to defraud, let’s put this term into context. In People v. Martin, 2014 NY Slip Op 2469 (3rd Dept. 2014), the defendant, Martin, twice used a credit card in the name of another man (and signed the receipts) who was the domestic partner of defendant’s fiancee. This man died years earlier. At trial, the jury convicted the defendant of Forgery in the Second Degree, PL 170.10. During the trial, however, the accused’s fiancé, who was the domestic partner of the credit card account holder until his death, testified as follows:

(1) She was an authorized user;

(2) She gave defendant permission to use the card and did not specify what name to use when signing receipts;

(3) Although she was using the deceased credit, she and the defendant always paid the bill;

(4) When a payment was not in full, interest accrued which was also paid;

(5) Even though the holder of the carried had passed away, because the estate was was not closed she believed she still had permission to use the credit card;

(6) The bank received interest when they did not pay in full, and she thought that she could continue to use the credit card until the deceased’s estate was closed, which had not yet occurred;

(7) She did not have her own credit card and she and the defendant sought to open their own business.

With this evidence before the jury, the legal question was whether or not Martin, the defendant, violated Second Degree Felony. A person is guilty of PL 170.10(1) “when, with intent to defraud, deceive or injure another, he falsely makes, completes or alters a written instrument which is or purports to be, or which is calculated to become or to represent if completed … [a] credit card … or other instrument which does or may evidence, create, transfer, terminate or otherwise affect a legal right, interest, obligation or status.”

In determining the jury had sufficient evidence to convict the defendant, the court stated that it “was reasonable for the jury to conclude that defendant intended to deceive the bank into continuing to offer credit to a dead man, which defendant would then use, when defendant and his wife were not credit worthy and were possibly unable to obtain their own line of credit.” Even thought the defendant made timely payments, ensured the bank was always whole in terms of balances and interest, and was not involved in otherwise illegal activity, the evidence established the defendant’s intent to deceive, injure or defraud.

The value of this case cannot be ignored. Whether one has an altruistic use of the fruits of a fraud, as long as the intent to defraud exists, one can be found guilty of a felony Forgery crime (assuming, of course, all other elements are met and proven beyond a reasonable doubt). Forgery, as a criminal offense, need not be part of a greater criminal scheme. The intent to defraud need not be a theft in the commonly accepted sense. For better of worse, Martin can be viewed as a warning of the liberal interpretation courts and juries will afford evidence in Forgery trials.

To learn about the crimes and degrees of Forgery and Criminal Possession of a Forged Instrument in New York, follow the highlighted links found throughout this blog entry. Further information is available on the websites listed below and this blog.

A New York criminal defense firm founded by New York criminal lawyers and former Manhattan Assistant District Attorneys, Crotty Saland PC represents clients in fraud and related criminal investigations, arrests, indictments and trials throughout the New York City region.

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