The New York State Department of Motor Vehicles (DMV) has facial recognition technology that is both sophisticated and widely utilized. DMV Investigators, somewhat similar to an NYPD Detective, use face recognition technology in conjunction with old fashion investigatory skills to review applications for New York State Drivers Licenses to determine whether an applicant has previously applied for and received a drivers license under a fake name or alias. Further, the DMV investigators look to see whether an applicant has old and outstanding summonses or suspensions on his or her license. So, what is it that you expose yourself to when making certain misrepresentations at the DMV? What felony and misdemeanor crimes are you exposed to and what should you discuss with your criminal defense attorney to navigate an arrest should it occur?
Advocating effectively is not as easy as it seems. Understanding the criminal justice system in a practical sense takes experience. Doing your homework on your client’s criminal case to put him or her in the best position to resolve that case favorably takes diligence. The end result, however, can be well worth all the work for both the accused and the criminal defense attorney who secured justice. In fact, for a few recent Crotty Saland PC clients, what were originally nightmarish experiences ended in closed cases, non-criminal dispositions and outright dismissals.
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.
A somewhat infrequently used section of the New York Penal Law, First Degree Falsifying Business Records is nonetheless not only a serious crime, but on where an arrest can land you in prison and with a felony record. Is Falsifying Business Records in the First Degree as serious as Second Degree Grand Larceny or, for that matter, Second Degree Criminal Possession of a Forged Instrument? The short answer is no. These two crimes, PL 155.40 and PL 170.25, are class “C” and “D” felonies respectively while PL 175.10 is a class “E” felony? What does this all mean you ask? Grand Larceny in the Second Degree is punishable by as much as fifteen years in prison, Criminal Possession of a Forged Instrument in the Second Degree is punishable by as much as seven years in prison and First Degree Falsifying Business Records is “merely” punishable by up to four years in prison. That said, unlike the aforementioned crimes, PL 175.10 is often associated with more significant crimes and each time there is a falsification a new criminally chargeable offense has occurred.
With your general grasp on the significance and severity of Falsifying Business Records in the First Degree, this blog entry will further address this crime while also addressing the elements of PL 175.10.
Whether prosecuted as a felony or misdemeanor, the crimes of Forgery and Criminal Possession of a Forged instrument are offenses in the New York Penal Law that carry significant terms of jail and imprisonment ranging from one year in jail to fifteen years in prison. Sometimes defenses to a Forged Instrument or Forgery arrest are fairly straight forward for your criminal lawyer or fraud defense attorney while other times articulating a defense is quite difficult. At bottom, irrespective of whether you are charged with the misdemeanor crimes of New York Penal Law 170.05 (Forgery in the Third Degree) or 170.20 (Criminal Possession of a Forged Instrument in the Third Degree), or you indicted for the felony crimes of 170.10 (Forgery in the Second Degree) or 170.25 (Criminal Possession of a Forged Instrument in the Second Degree), prosecutors must prove beyond a reasonable doubt that you had the intend to defraud.
The Martin Act, New York General Business Law 352 and related subsections, is the hammer in a prosecutor’s toolbox to investigate and prosecute securities fraud in New York State. The New York State Legislature passed this “blue sky law” to regulate fraudulent securities transactions and to provide the New York Attorney General (a prosecutor with jurisdiction anywhere in the State of New York), with grounds to bring a civil law suit against perpetrators of financial fraud. In 1932 the act was expanded to allow the Attorney General to bring criminal charges, and request criminal sanctions, against perpetrators of financial fraud.
Recently, we discussed the history of the Medicare Fraud strike forces set up by the U.S. Department of Justice, Fraud Section, in an effort to combat what was perceived as rampant fraud in the healthcare system. Recently, local U.S. Attorneys across the country have copied the structure and format of the strike forces within their own offices.
Take for example David Hickton, the U.S. Attorney for the Western District of Pennsylvania, in Pittsburgh, who created his own “mini-strike force.” He has enlisted four assistant U.S. attorneys from his office to focus exclusively on health care fraud investigations and prosecutions. He has support from the Pittsburgh Division of the FBI, which is one of the two federal law enforcement agencies charged with investigating health care fraud. He has also reached out to the HHS-OIG, the Department of Health and Human Services, Office of the Inspector General, the other federal agency investigating the medical industry, asking them to dedicate special agents to the Pittsburgh area.
The idea is to focus manpower on one of the largest and most complex industries in the country in an effort to gain expertise while eradicating millions, if not billions of dollars of fraud, waste and abuse in the healthcare industry. Continue reading
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.
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:
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.