Forgery in the Second Degree & Criminal Possession of a Forgery Device: NY Court Limits Scope of Crime

Forgery in the Second Degree, New York Penal Law 170.10, contains specific statutory language. In substance, some of the critical elements are that the accused must have the “intent to defraud” and “falsely make[], create[] or alter[] a written instrument.” Moreover, in doing so, a defendant must also have “create[d], transfer[ed], terminate[d] or otherwise affect[ed] a legal right.” While the statute also sets forth some specific types of instruments such as wills, a relatively recent appellate court decision (the second highest level court in New York State) refused to elaborate or extend Forgery crimes into other areas. While the decision doesn’t necessary preclude Forgery crimes in New York from extending beyond the specific instruments in the statute, it does help set the parameters of how far assistant district attorneys can go when prosecuting Forgery offenses.

In People v. Carmack, 34 A.D.3d 1299 (4th Dept. 2006), the Appellate Division Fourth Department reversed a conviction at trial where the defendant was alleged to have perpetrated Forgery in the Second Degree. There, the accused was alleged to have spoofed email address and sent out solicitations to other email users. In other words, solicitation emails would arrive in one’s inbox and appear as if it came from another person or friend as opposed to a general “spam” email. Although the emails were sent from the defendant’s computer, a program made it appear as if other entities or people had sent the email when in fact they had not. Finding that emails for a dietary supplement, for example, were not the type of instrument set forth in the statute, the appellate level court reversed the conviction.

Not only did prosecutors overreach in their attempt to stop what they believed was a criminal act in the arena of Forgery, but the judges also reversed the charge of Criminal Possession of a Forgery Device within the meaning of Penal Law 170.40. There, the court noted that an essential element of this crime is that the particular device must be “specifically designed for use in counterfeiting or otherwise forging written instruments.” However, the prosecution’s own expert witness testified that the program utilized by the defendant could in fact be used for legitimate purposes.

While this case may or may not be a useful tool in the arsenal of a criminal defense attorney when representing his or her client in a matter involving Forgery or Criminal Possession of a Forgery Device, the concept of the case is an important one. That is, prosecutors, despite their infinite means to investigate and prosecute crimes, must remain within the confines and structures set forth in the statutes they have sworn to uphold.

For a wealth of information, statutes and articles regarding Forgery and related fraud crimes in New York City as well as the State of New York, please review the applicable sections of the Saland Law PC website ( and the New York Criminal Lawyer Blog (NewYorkCriminalLawyerBlog.Com).

Saland Law PC is a white collar criminal defense firm located in Manhattan. Prior to starting the firm, both founding partners served as prosecutors in the New York County District Attorney’s Office under Robert Morgenthau.

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