New York Criminal Possession of a Forged Instrument: Establishing Knowledge & Intent to Defraud in a Fake ID Arrest

A fake identification is grounds for arrest whether you’re a college student at Columbia or NYU, a high school kid visiting New York City or you are a foreign national in need of some form of ID to work. Simply, there is nothing found in New York Penal Law 170.20 or New York Penal Law 170.25 that mandates an evil intent to perpetrate a terroristic or immigration fraud crime. While prosecutors in a respective District Attorney’s Office and the NYPD or local police department may pursue a criminal case however they deem fit, as a preliminary matter whenever you have a fake passport or drivers license the crime technically is a class D felony pursuant to PL 170.25. As such, a conviction not only allows for up to two and one third to seven years in prison, but a felony conviction is life altering. Fortunately (relatively speaking), in the scenario of a young man or woman who may have that ID for the purpose of going to a club or bar, as opposed to some other nefarious reason, the crime is often prosecuted through a Desk Appearance Ticket in New York City whereby the accused must return at a later date to face arraignment with their criminal lawyer on the charge of PL 170.20, a misdemeanor.

Putting aside whether a Criminal Possession of a Forged Instrument arrest is prosecuted as a felony for a second degree crime or as a misdemeanor for a third degree offense, what are the elements that must first be established with probable cause and ultimately beyond a reasonable doubt? Following the language of the misdemeanor PL 170.20 that is the baseline of these crimes prior to any felony enhancements, the language is as follows: You are guilty of Third Degree Criminal Possession of a Forged Instrument when you have knowledge that it is forged and you have the intent to defraud, deceive or injury another person, you possess or utter that particular forged instrument.

This blog entry will further analyze the crime of PL 170.20 in the context of a fake identification and the thresholds that much be reached by the District Attorney’s Office to secure a conviction.

In People v. Hightower, 2016 NY Slip Op 50414 (1st Dept. 2016), the defendant had a fake and fraudulent military identification. As set forth in the accusatory instrument and as challenged by the defendant in terms of legal sufficiency, the complaint alleged that the arresting police officer knew the military ID was fake because the back side of the card was blank and legitimate identification cards have bar codes and other information. Further, actual military IDs have computer chips in them while this particular identification merely had a picture depicting such a chip. On its face, there is little dispute, if any, that the identification was fraudulent. After all, many of the hallmark characteristics of a real identification were absent including a computer chip. However, as you will recall from reviewing the legal language of Penal Law 170.20, possessing a forged instrument is not sufficient to sustain this charge. You must also have knowledge that it is not real and have the intent to defraud.

Addressing the knowledge and intent elements, even though the complaint did not set forth direct evidence of these mandatory requirements, the court fairly concluded they existed. Simply, knowledge clearly existed where a defendant possessed a fake identification and that defendant’s name and picture were reflected on that identification. Beyond the knowledge piece, the court further stated that “‘there was no reason for defendant to knowingly possess [such] false identity document[] unless he intended to present [it] as real, i.e., to defraud or deceive another'” (People v Rodriguez, 71 AD3d 450, 453 [2010], affd 17 NY3d 486 [2011]).

Hightower is one of those cases that both you and your criminal lawyer should be cognizant of and understand its application to cases where there may not be an admission of guilt or a defendant is not caught in the act of attempting or actually deceiving another person. Sometimes on the face of the fraudulent instrument the elements of PL 170.20 are clear by its very nature. At the same time, however, the application of this decisions to a Criminal Possession of a Forged Instrument arrest involving currency, tickets to sporting events, and arguably even a credit card may differ widely. At bottom, a case by case analysis and application of relevant case law is critical.

For further materials on New York Forgery and Criminal Possession of a Forged Instrument crimes whether they encompass misdemeanors or felonies, take a moment to follow these links as well as to review the materials from this blog and the websites listed below. Not only “readable”, the materials contained there are both informative and practical to give you a starting point on these and related criminal matters as well as how they are established and potential defenses.

Saland Law PC is a New York criminal defense firm located in Manhattan and servicing New York City and the greater area. Both founding New York criminal defense attorneys at Saland Law PC served as prosecutors in Robert Morgenthau’s Manhattan District Attorney’s Office.


Contact Information