Just as different facts and evidence can result in different arrests, charges and outcomes, different courts can analyze similarly charged cases and reach different conclusions as to legal sufficiency. In the realm of fake identification cases in New York, this could not be more accurate. Very briefly, you are guilty of Criminal Possession of a Forged Instrument in the Third Degree, New York Penal Law 170.20, if you know that the instrument you possess is fake and fraudulent, it is fake and fraudulent and that you possess it with the intent to deceive another (review PL 170.20 for the actually legal language). The lowest of the Criminal Possession of a Forged Instrument crimes, PL 170.20 is nonetheless a misdemeanor that is both punishable by as much as one year in jail and is not expunged from your criminal record upon conviction. That is correct. Having a fake ID or drivers license whether its to buy beer or something much more serious such as possessing a fraudulent passport, the crime is at minimum a misdemeanor and can be prosecuted as a felony Second Degree Criminal Possession of a Forged Instrument.
An issue that often pops up in arrests for fake IDs, drivers licenses and passports, is how the prosecution can prove each of these elements beyond a reasonable doubt from the knowledge to the intent to deceive another person where the acts or statements by themselves do not reflect this knowledge or intent. In a recent blog entry I addressed People v. Hightower where the court concluded that by the nature of the particular fake military ID that had the defendant’s picture and depicted a computer chip instead of an actual one, the People satisfied their burden in establishing the defendant’s knowledge and intent to deceive another. Why else would one have such an identification? Fortunately, however, not all “hope” is lost. A similar case and decision ended up on the other side of the issue in finding that a fake international drivers license by itself did not satisfy the legally sufficient threshold.
In People v. Mbaye, 2016 NY Slip Op 50651 (1st Dept. 2016), the defendant possessed an “International Driver’s License.” According to the criminal court complaint, the arresting police officer knew that that identification was fake because based on his training and experience there is no such thing as an “International Driver’s License.” Instead, there is an “International Driver’s Permit”. Moreover, the document or instrument is not a laminated flat card but a paper pamphlet.
Unlike Hightower, the Court reached a different conclusion and found the criminal defense attorney’s legal argument correct. That is, the People did not satisfy their burden the and accusatory instrument was not legally sufficient. The Court stated:
“[E]ven when taken together with all reasonable inferences which can be drawn from those facts (see People v Jackson, 18 NY3d 738, 747 ), [it does] not give rise to the inference that defendant possessed the “forged” license with the knowledge and intent required by the Penal Law 170.20. It need be emphasized that nowhere in the accusatory instrument does the deponent police officer set forth any underlying “conduct and events” from which defendant’s knowledge of the forged nature of the license can be inferred, such as “how or where the [license] came into defendant’s possession” (People v Johnson, 65 NY2d 556, 561-562 ), or whether the license was in defendant’s name or contains his photograph (see People v Fletcher, 29 AD2d 838 ; cf. People v Rodriguez, 17 NY3d 486 ). Nor does the pleading set forth any conduct of defendant or surrounding circumstances from which his intent to defraud, deceive or injure another can be inferred (see People v Rodriguez, 17 NY3d 486, 489 ). On the facts alleged, defendant’s knowledge and intent may not be imputed solely by his mere possession of the forged document (see People v Rodriguez, 17 NY3d at 489; People v Bailey, 13 NY3d 67, 71-72 ).
Based on Mbaye, the District Attorney cannot merely rest on the face of the fake license or identification. Without a statement, further information or knowledge and actions attributed to the defendant, does not exist and a case of this nature should be dismissed. Is this case worthy of review by you and your criminal lawyer? Yes. Will your criminal defense attorney potentially be required to differentiate this decision from Hightower? Yes, again.
To help identify your best defense and fully understand how the legal decisions impact your arrest for PL 170.20, Third Degree Criminal Possession of a Forged Instrument or PL 170.25, Second Degree Criminal Possession of a Forged Instrument, take the time to educate yourself. Read through the links found here and examine both the New-York-Lawyers.org website, the Criminal Possession of a Forged Instrument Information Page and NewYorkCriminalLawyerBlog.Com where you will find legal defenses, case decisions and statutory analysis of all degrees of Criminal Possession of a Forged Instrument.
Established by two former Manhattan Assistant District Attorney’s, Saland Law PC represents clients in New York City and the neighboring municipalities.