People v. Bigus

• Decision Date: 30 December 1985
• Citation: 497 N.Y.S.2d 145,115 A.D.2d 751
• Parties: The PEOPLE, etc., Respondent, v. Ronald J. BIGUS, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 145

497 N.Y.S.2d 145

115 A.D.2d 751

The PEOPLE, etc., Respondent, v.Ronald J. BIGUS, Appellant.

Supreme Court, Appellate Division Second Department.

Dec. 30, 1985.

John F. Middlemiss, Jr., Ronkonkoma (Alfred J. Cicale, of counsel), for appellant.

Patrick Henry, Dist. Atty., Riverhead (Michael J. Miller and James J. Leyden, Jr., of counsel), for respondent.

Before LAZER, J.P., and BRACKEN, BROWN and O'CONNOR, JJ.

MEMORANDUM BY THE COURT.

Appeal by defendant from a judgment of the County Court, Suffolk County(Snellenburg, J.), rendered November 5, 1982, convicting him of forgery in the second degree, after a nonjury trial, and imposing sentence.

Judgment affirmed.

Defendant freely admits that, upon his arrest on an unrelated charge, he signed a police fingerprint card in his brother's name instead of his own.Nonetheless, he argued throughout the trial and on this appeal that a fingerprint card does not constitute a "written instrument" for purposes of the forgery statute.We do not agree.Penal Law § 170.00(1) defines the term "written instrument" as follows:

" 'Written instrument' means any instrument or article 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".

Defendant maintains that a fingerprint card, even if signed in another's name, is not "capable of being used to the advantage or disadvantage of some person".This contention is without merit, for it ignores the very real advantage gained by a criminal suspect who, in signing a name other than his own, is thereby able to conceal from the authorities, at least temporarily, his true identity and any criminal history which he might have.As other courts have observed, such an intentional deception could lead the authorities to reasonably (albeit incorrectly) conclude that the suspect has no criminal record, and there might be a release on the suspect's own recognizance or upon greatly reduced bail (People v. Pergolizzi, 92 Misc.2d 528, 400 N.Y.S.2d 1005;People v. St. Pierre, 91 Misc.2d 783, 398 N.Y.S.2d 622).

Defendant further argues that the introduction of the fingerprint card signature into evidence violated his Fifth Amendment privilege against self-incrimination.We note at the outset that this issue is raised for the first time on appeal, and therefore, has not been properly preserved for review (see, People v. Booker, 49 N.Y.2d 989, 429 N.Y.S.2d 168, 406 N.E.2d 1062;People v. Tutt, 38 N.Y.2d 1011, 384 N.Y.S.2d 444, 348 N.E.2d 920).In any event, this contention is unpersuasive, for there is no evidence in the present case that defendant was compelled to do anything.Moreover, it has been held repeatedly that the taking of a suspect's fingerprints or writing sample for identification purposes is not barred by the Fifth Amendment privilege against self-incrimination (see, United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149;Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908.As the Court of Appeals has stated, "The police are certainly entitled to make a reasonable inquiry as to the identity of the person they have taken into...