The pertinent part of New York Penal Law sections 170.05 & 170.10, Forgery in the Third and Second Degree, plainly states that one is guilty of Forgery when with intent to defraud, deceive or injure another, a person falsely makes, completes or alters a written instrument.
Depending on what a person forges, the level or degree of the offense may be elevated from a misdemeanor to a “D” or even a “C” felony. For example, if the item forged is deed, will or instrument created by the government, the crime can go from an “A” misdemeanor punishable by up to one year in county jail (Rikers) to a “D” felony punishable by up to seven years in state prison. Moreover, if one counterfeits United States currency, the crime can be bumped up further to a “C” felony pursuant to New York Penal Law 170.15 and is punishable by up to 15 years prison. Well, what about knock off handbags, clothing or other items? Assuming the buyer is not knowingly buying a fake handbag (so, forget the shoppers seeking out “deals” on Canal Street) and the person selling the handbag or other property is presenting it as the authentic product with the intent to defraud the buyer, can the seller be charged with Forgery for making the knockoff handbag or Criminal Possession of a Forged Instrument for possessing the same?
The answer is clear. These crimes would not be applicable. According to a Manhattan Criminal Court Judge in People v. Vu, 161 Misc.2d 692 (NY Cty Crim. Ct. 1994):
“Although it may not be impossible to squeeze the counterfeit handbag…into this definition by means of enterprising, if tortuous, parsing, it seems clear that these statutes were never intended to cover activity so far afield from the counterfeiting of written instruments, such as contracts and wills, and so manifestly within the ambit of those frauds which the trademark counterfeiting statutes (Penal Law 165.70 et seq.) were later enacted to encompass. However broad the language of the clause concluding subdivision one of section 170.10 of the Penal Law, the terms and examples which precede it logically limit its sense and scope to prohibit only the alteration of documents of like type under the principle of ejusdem generis (of the same kind).”
Although not a Court of Appeals (NYS highest court) holding and decision, it is safe to say that items beyond the scope of a “written instrument” do not fall within the territory of Forgery. Certainly, other crimes may be applicable that are as serious or more significant, but Forgery will not be established unless the elements and language of the statute is satisfied. If the law permitted prosecutors to squeeze fake handbags into this definition (it was obviously tried!), who knows what new “forgeries” would be prosecuted in the future.
Crotty Saland PC is a New York based criminal defense firm. Founded by two former Manhattan prosecutors, Crotty Saland PC represents clients throughout the New York City region.