While I am not in possession of any statistics, there is little doubt that over my years as a Manhattan prosecutors and criminal defense attorney, a significant amount of crimes involving New York Penal Law 170.20 and New York Penal Law 170.25 relate to some form of a fake identification or ID. Sometimes these arrests involve large scale rings where fake passports, drivers licenses and other IDs are created for nefarious reasons to perpetrate greater frauds involving credit card scams, identity theft related crimes or other schemes. Although still criminal, other times arrests merely involve college and high school aged kids under 21 who are looking to get into a bar, club or other event, but are under 21 years of age. On their respective faces, no matter what your purpose, as long as you have the intent to defraud, possessing a fake passport, drivers license or other fraudulent state or federally issued identification is a felony. Yes, Criminal Possession of a Forged Instrument in the Second Degree is a Felony. If there is any good news, many times where the accused is clearly a “kid” with a fake identification at a bar or similar scenario, the NYPD at least will issue a Desk Appearance Ticket for the misdemeanor offense of Third Degree Criminal Possession of a Forged Instrument. Whether you are issued a Desk Appearance Ticket (DAT) or you are held in jail to see a judge for your arraignment, the degree or level of the crime does not change.
Now that you have spent thirty seconds to a minute reading about fake ID arrests in New York, if you want more information on these crimes I encourage you to read through this blog or on the websites below. This entry, however, will deal with Criminal Possession of a Forged Instrument but address the ease by which prosecutors and police can establish the minimum threshold necessary to draft a viable and legally sufficient complaint. Why does this entry address legal sufficiency? The answer is that before you pocket your fake ID or any fraudulent instrument you should be fully aware the ease by which the District Attorney can prosecute you with a minimal degree of evidence. If nothing else, you have now been warned.
In People v. Hunter, 2016 NY Slip Op 51558(U) (1st Dept. 2016), the defendant pleaded to Third Degree Criminal Possession of a Forged Instrument, NY PL 170.20. The complaint against him alleged that he possessed three MetroCards bent in the same location while approaching people at subway MetroCard machine. The officer stated that based on his training and experience, “bending MetroCards in this way can alter a card with zero balance so that it will provide a ride to the user.” Citing People v. Kasse, 22 NY3d 1142, 1143(2014), the Court noted that additional evidence was not required because there was “adequate notice to enable defendant to prepare a defense and invoke his protection against double jeopardy[.]”
What I find interesting about this case is that solely based on a bend in a particular location and without any elaboration as to his training and experience, the police officer was able to legally conclude that the instruments in question were in fact forged. Make no mistake. Merely because the information was legally sufficient by no means establishes proof beyond a reasonable doubt at trial. However, the problem should be clear. This defendant, and anyone charged in either a felony or misdemeanor complaint or indictment for PL 170.20 or PL 170.25 will have a heavy lift to convince a court that at its initial stage the pleadings are legally insufficient. Again, proof a trial and legal sufficiency are quite different, going back to fake ID cases, one must realize that an officer asserting his training and experience while identifying a discoloration, different font or other discrepancy between an authorized identification and a fraudulent one is a very low initial threshold. Once the probable cause to arrest is satisfied and legal sufficiency cleared, any defendant will then have to either fight the case on its facts or evidence, other legal grounds such as the terms of his or her search and seizure, or mitigation.
Crotty Saland PC is a criminal defense firm representing clients in white collar crimes involving fraud. Both founding members served as prosecutors in the Manhattan District Attorney’s Office prior to establishing the law firm.