New York Forgery & Forged Instrument Crimes: Is Creating Your Own Fake Check a Crime

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.

In People v. Zeller, 2014 NY Slip Op 8068 – NY: Appellate Div., 3rd Dept. 2014, prosecutors secured an arrest, indictment and conviction against the defendant for violating numerous felonies including Grand Larceny in the Second Degree (New York Penal Law 155.40) and Criminal Possession of a Forged Instrument in the Second Degree (New York Penal Law 170.25). These respective Class C and Class D felonies carried the potential of up to fifteen and seven years in prison.

At issue before the appellate court was whether or not prosecutors established with legally sufficient evidence before the Grand Jury that the fake checks created by the defendant constituted forged instruments in the eyes of the law. The relevant part of the New York criminal code that relates to these and other alleged forged items is that “[a] person is guilty of [C]riminal [P]ossession of a [F]orged [I]nstrument in the [S]econd [D]egree when, with knowledge that it is forged and with intent to defraud, deceive or injure another, he [or she] utters or possesses any forged instrument of a kind” set forth under PL 170.10 (it is a fairly broad and extensive list that you can explore in depth with your Forgery attorney or Forged Instrument lawyer). Of great significance, and as noted by the appellate court, “[d]etermining whether a document is forged ‘does not depend so much on whether it contains a falsehood, but on whether, on its face, it misrepresents its authenticity’” (People v Briggins, 50 NY2d 302, 306 [1980]). Further, the appellate court acknowledge that a person “`falsely makes’ a written instrument when he [or she] makes … [an] instrument, which purports to be an authentic creation of its ostensible maker …, but which is not such either because the ostensible maker … is fictitious or because, if real, he [or she] did not authorize the making … thereof’” (People v Asai, 66 AD3d 1138, 1139 [2009], quoting Penal Law § 170.00 [4]).

Turning to the instant case, the defendant created fake checks bearing her own name and gave them to a third party in a fraudulent payment scheme. Not altered checks of another person or purporting to be a check belonging to another person, these fake checks were not an attempt by the defendant to portray herself as another person. As such, these checks were not falsely made. There was no authorized party to make or issue checks that were completely fake as opposed to those containing the account or name of a rightful owner or authorized signatory. Ultimately, the ostensible maker and the actual maker of the written instrument are the same person. As such, the appellate court affirmed the lower court’s decision in dismissing the charges of Second Degree Criminal Possession of a Forged Instrument.

The Zeller case is certainly an interesting and valuable read. Is it applicable to all cases involving Forgery and Criminal Possession of a Forged Instrument related crimes in New York? Absolutely not. If you are accused of falsifying a signature of an account holder on their checks or copying what appear to be their checks, will this case point you towards a dismissal? No. However, where you are accused of a New York Penal Law Article 170 crime and you fabricated your own instrument (here it was a check) from “soup to nuts,” you are the ostensible maker, and there is no apparent authorized person, Zeller may be central to your defense. While reading this may make you smile broadly if you are accused in the manner addressed above, keep in mind that, like Zeller, you still may face equal or greater criminal charges.

To develop a greater understanding of Forgery, Criminal Possession of a Forged Instrument and other New York Penal Law Article 170 crimes, go directly to, review this blog or simply follow the links found in the blog entry. The wealth of information contained in these resources can potentially assist you in working with your New York criminal defense attorney in implementing the best defense to your legal predicament.

A New York law firm dedicated to criminal defense in the New York City and greater region, Saland Law PC was founded by former Manhattan prosecutors.

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