While felony arrests and investigations involving Second Degree Forgery (New York Penal Law 170.15) and Second Degree Criminal Possession of Forged Instrument (New York Penal Law 170.25) are two of the more common fraud crimes in New York City and New York State, there are certainly many more crimes involving deceit and fraud that are prosecuted by Assistant District Attorneys and defended against by New York criminal lawyers. One of these crimes, Falsifying Business Records in the First Degree (New York Penal Law 175.10), may not be as serious as the felony Forgery and Forged Instrument crimes, but an arrest for this felony is one that can land a first time offender with no criminal history behind bars for an extended period of time. In fact, the punishment and sentence for this “E” felony of First Degree Falsifying Business Records is as much as four years in prison. This blog entry will specifically address subsection one of First Degree Falsifying Business Records (NY PL 175.10(1)) and how indirect actions or secondary results can still be criminal.
Generally, a person is guilty of PL 175.10 when he or she has an intent to defraud that involves the commission or intent to commit another crime or the concealment of another crime and when he or she makes or causes a false entry to be made in the business record of an enterprise. Wordy? Maybe, but at its core and in non legal terms, if you are trying to hide a theft or commit a larceny and in the course of this crime you intentionally make false entries in the records of a business, you would be guilty of felony Falsifying Business Records (this is merely an example and would need further vetting to see if the crime was actually committed and each element satisfied).
Unfortunately, law is not math. Ask any experienced New York criminal defense attorney. Unlike math where two plus two always equals four (at least when I checked last), criminal law in New York is often changed by the legislature and interpreted and reinterpreted by the courts. What is relevant specifically in this statute is not so much how to interpret the language, but that one need not affirmatively or personally make a change to or alter the records of an enterprise. It is sufficient if one’s actions cause a change to be made. The following recent legal decision helps illustrate this point.
In People v. Ramirez, 99 AD 3d 1241 (4th Dept. 2012), an appellate court grappled (there wasn’t too much grappling in actuality as the Court was clear and concise in its analysis), a defendant appealed from a conviction for Falsifying Business Records in the First Degree. The evidence at trial established that Ramirez knowingly returned merchandise to Lord & Taylor store in exchange for store credit. However, the defendant never purchased the merchandise he returned. Once he obtained the store credit, he then made purchases with the monies from the fraudulent return. Despite the defendant’s contention that prosecutors failed to establish a violation of Falsifying Business Records in the First Degree, the Court stated that:
“[T]he People established that defendant ’cause[d] a false entry in the business records of an enterprise’ ( 175.05 ), i.e., that she returned merchandise that she had not in fact purchased, and that she thereby ‘inten[ded] … to aid or conceal [her] commission’ of the crime of petit larceny ( 175.10; see People v Weaver, 89 AD3d 1477, 1478 ; People v Hopkins, 28 AD3d 1244, 1244 , lv denied 7 NY3d 790 ).”
Simply, this case did not hinge on whether the defendant made an actual false entry as if he or she was an employee of the store, but that as a result of his initial fraudulent return of merchandise, a change or entry was made in the records of the business reflecting the return or transaction. Even more simple, it is imperative to recognize that the action of a third party who makes these changes can be the basis of your criminal conduct assuming all other elements of Falsifying Business Records is satisfied.
To learn more about the misdemeanor and felony crimes of Falsifying Business Records and other New York fraud crimes, a review of the links above or the CrottySaland.Com website and New YorkCriminalLawyerBlog.Com blog listed below are great places to begin the process. Founded by two former Manhattan Assistant District Attorneys, the New York criminal lawyers at Crotty Saland PC represent clients accused of and arrested for New York fraud crimes from Grand Larceny and Criminal Possession of Stolen Property to Offering a False Instrument for Filing and Falsifying Business Records.