Can a New York Forgery Conviction Stand Where a Cardholder does not Testify & a Fictitious Name is Used by the Accused

I recently posted a blog entry briefly analyzing a Second Degree Forgery (New York Penal Law 170.10) conviction where one of the central issues was whether the defendant had the intent to “defraud, deceive or injure” the bank when a deceased man’s credit card was used and all principle and interest payments were made. Although there was more to that case (the blog entry is from May 11, 2014), the lesson learned is that intent to defraud has a very liberal, as opposed to conservative and strict, definition. Recognizing this fact is important for not only you, as an accused, but your criminal attorney identifying and implementing your best defense. Following up with further review of New York’s Forgery and Criminal Possession of a Forged Instrument crimes, statutes and laws, this entry will once again address these offenses.

In People v. Lydon, 2006 NY Slip Op 7125 (1st Dept. 2006), the defendant was convicted after trial of multiple counts of Forgery (it is not clear from the decision whether the crimes were for the felony of Second Degree Forgery or the misdemeanor of Third Degree Forgery pursuant to New York Penal Law 170.05). The facts at trial established that the defendant would order pizzas over the phone for delivery using one of two credit card numbers, but then go to the restaurant and complete the purchase. When the defendant signed the receipts for the pizzas, he would write a relatively illegible name or “Mike.” Neither of the credit card holders, a husband and wife, were named Mike.

The defendant appealed his Forgery conviction on numerous grounds. First, the defendant argued that there was insufficient evidence to establish he lacked or did not have permission to use the credit cards or the credit card numbers. Evidence before the court as to permission and authority was from one of the cardholders and the credit card company. Coupled with the suspicious way the pizzas were ordered and ultimately purchase along with the testimony from the credit card company representative and one of the holders, the court determined that the evidence was sufficient. Despite the defendant’s contention that both card holders should have testified about permission and authority (the argument being how can on holder establish that the other holder, who did not testify, didn’t give the defendant permission), the court found that the second  cardholder’s testimony would have been cumulative.

After failing to persuade the appellate court on his first argument, the defendant then claimed that because he put a bogus name (“Mike”) on the receipts, he could not be convicted of Forgery. In response, the court stated:

“[W]e [] find that defendant was properly convicted of [F]orgery because his use of a fictitious name was for the purpose of misrepresentation and was ‘accompanied by a fraudulent design’ (People v.Briggins, 50 NY2d 302, 307 [1980]). The evidence supports the inference that by scribbling an illegible signature, defendant was not simply signing an assumed name, but was attempting to create the impression that an actual cardholder had signed the documents (see People v. Pettus, 20 AD3d 369 [2005], lv denied 5 NY2d 855 [2005]).”

While the defendant certainly got an A+ for creativity, the court wasted no time in denying his appeal. Writing an illegible name on a receipt does not insulate a defendant from an “intent to defraud” or creating a written instrument.

To find out more about New York Forgery and Criminal Possession of a Forged Instrument crimes, including the analysis of legal decisions and statutes, review any of the links found on this entry or on the NewYorkCriminalLawyerBlog.Com and the Saland Law PC website linked below.

The New York criminal lawyers at Saland Law PC represent clients accused of and arrested for Forgery and Criminal Possession of a Forged Instrument misdemeanors and felonies throughout the New York City region. Prior to establishing the law practice, the founding New York criminal defense attorneys served as prosecutors in the Manhattan District Attorney’s Office.


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