Matter of DU

• Decision Date: 09 September 2002
• Citation: 747 N.Y.S.2d 730,192 Misc.2d 601
• Parties: In the Matter of D.U., a Person Alleged to be a Juvenile Delinquent, Respondent.
• Court: New York Family Court

192 Misc.2d 601

747 N.Y.S.2d 730

In the Matter of D.U., a Person Alleged to be a Juvenile Delinquent, Respondent.

September 9, 2002.

Legal Aid Society(Monica Drinane and Ivan Perez of counsel), Law Guardian.

Michael A. Cardozo, CorporationCounsel(Jodi H. Lev of counsel), for presentment agency.

OPINION OF THE COURT

FRAN L. LUBOW, J.

Respondent moves for discovery, suppression of statements and dismissal of the instant petition charging the respondent with acts which if committed by an adult would constitute crimes of forgery and criminal possession of forged instruments as set forth in article 170 of the Penal Law on the grounds that the petition is facially insufficient.The presentment agency opposes respondent's motion indicating that discovery has been provided, that the statements sought to be introduced at trial were properly obtained and that the petition is facially sufficient.

In deciding a motion to dismiss a petition for facial insufficiency, the court must determine whether the nonhearsay allegations contained in the petition, when viewed in the light most favorable to the presentment agency, if true, support each and every element of the crime charged (Matter of Jahron S.,79 NY2d 632).It is not necessary that all of the presentment agency's proof be set forth in the petition and supporting depositions and a respondent's criminal intent may be inferred from the surrounding conduct in which the respondent allegedly engaged.(SeeMatter of Dirhim A.,178 AD2d 339.)A respondent's admission which is set forth in the deposition of the witness who heard him state the admission constitutes admissible hearsay and may properly support the charges of the petition as well.(Matter of Rey R.,188 AD2d 473.)

The supporting deposition filed in support of the petition contains the sworn statement of Police Officer Jonathan Dubroff.The deposition states in sum and substance that the respondent was observed holding and making numerous bending motions with a metrocard.It further states that the respondent was also observed swiping the metrocard through the turnstile several times.Police Officer Dubroff further states that he observed an individual who was with the respondent go through the turnstile thereafter.Police Officer Dubroff also states that based on his experience as a member of the New York City Transit Bureau Vandal Squad, he knew that the metrocard was altered in that he(the respondent) bent the metrocard in such a way as to permit an additional fare.It is further alleged in Police Officer Dubroff's deposition that the respondent stated that he had bent the metrocard for the purpose of getting his friend through the turnstile because he did not want to leave his friend in the station alone.See the supporting deposition of Police Officer Dubroff filed with the instant petition.

The issue to be decided by this court in determining the facial sufficiency of the petition is whether a "metrocard" constitutes a "written instrument" within the meaning of the law.Penal Law § 170.00 (1) defines the term "written instrument" as:

"[A]ny instrument or article, including computer data or a computer program, containing written or printed matter or the equivalent thereof, used for the purpose of reciting, embodying, conveying or recording information, or constituting a symbol or evidence of value, right, privilege or identification, which is capable of being used to the advantage or disadvantage of some person."(Emphasis added.)

The term is broadly defined in order to cover "every kind of document and other item deemed susceptible of deceitful use in a `forgery' sense, the main requirement being only that it be `capable of being used to the advantage or disadvantage of some person.'"(SeeDonnino, Practice Commentary, McKinney's Cons Laws of NY, Book 39, Penal Law art170, at 6, quoting Staff Notes of Commn on Revision of Penal Law, reprinted in McKinney's Cons Laws of NY, 1964Spec Pamph, at 360.)

Although this court is not aware of any prior judicial ruling on the issue of whether a metrocard is a written instrument for the purpose of Penal Law article 170, an examination of the various items that have been determined to be written instruments under this article is instructive.The courts have held various types of documentary writings such as mail order subscriptions (People v Hacken,56 Misc 2d 950); credit card receipts (People v Le Grand,81 AD2d 945); and fingerprint cards (People v Kirk,115 AD2d 758) constitute...