People v. Briggins

• Decision Date: 06 May 1980
• Citation: 406 N.E.2d 766,50 N.Y.2d 302,428 N.Y.S.2d 909
• Parties: , 406 N.E.2d 766 The PEOPLE of the State of New York, Respondent, v. Charles James BRIGGINS, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 909

428 N.Y.S.2d 909

50 N.Y.2d 302, 406 N.E.2d 766

The PEOPLE of the State of New York, Respondent, v.Charles James BRIGGINS, Appellant.

Court of Appeals of New York.

May 6, 1980.

Carmine J. Perrotta, New York City, for appellant.

Patrick Henry, Dist. Atty. (Vincent A. Malito, Asst. Dist. Atty., of counsel), for respondent.

OPINION OF THE COURT

FUCHSBERG, Judge.

This criminal case treats with the law of forgery in circumstances involving the use of an assumed name.It comes to us on an appeal from an order of the Appellate Division, which affirmed a judgment entered upon a verdict convicting the defendant, Charles Briggins, on two counts of criminal possession of a forged instrument in the second degree (Penal Law, § 170.25).The acts on which these were based involved his use of the name Garry Morris, both to secure a temporary motor vehicle operator's permit and to apply for a permanent license.For the reasons which follow, we believe that under the circumstances these documents were not the products of forgery within the contemplation of the statute and that, since a finding that they were was essential to the vitality of the charges on which defendant was found guilty, the convictions must fall.

Some factual recitation will aid our exposition.According to the uncontradicted testimony, Briggins, a Long Island resident whose regular occupation was that of New York City police detective, for reasons best known to himself was intent on keeping his supplemental earnings as a part-time clothing salesman from his wife.As he informed the jury, it was to that end that he adopted the additional name Garry Morris and associated with it the address of a co-operating friend.Among other things, he opened a checking account at the Long Island Trust Company under this identity.And, as it happened, it was three checks totaling $261.91 which he drew on that account, each to the order of a different storekeeper in payment for purchases he made at a Suffolk County shopping center, that eventuated in the prosecution and conviction now before us.

For, as defendant was leaving with the merchandise he had bought, he was accosted by a Suffolk County police officer, who, in his own off-duty employment, worked for the center as a security guard.This interception appears to have been precipitated by a complaint from one of the merchants who became suspicious of the defendant when, on further scrutiny of the check he had accepted, mistakenly as it turned out, thought that the blank on which it was made was a photostat rather than an original.In any event, the ensuing confrontation between the two officers, in the course of which the defendant questioned the guard's authority and resisted a demand that he surrender his purchases, turned out to be anything but peaceful.In short order, a scuffle had taken place, defendant was arrested, it was disclosed that his family name was Briggins rather than Morris, the driver's permit and application were seized and, in due course, a multicount indictment on a host of theories was returned against him.¹All but the two with which we are here concerned having long since gone by the board, we now examine the scope of the term "forged instrument" as it is found in article 170 of the Penal Law.²

On that score, we first note that the statutes define the felony of criminal possession of a forged instrument in the second degree to include the utterance or possession of a written instrument issued by or filed with a public office, public servant or government agency "with knowledge that it is forged and with intent to defraud, deceive or injure another"(Penal Law § 170.10, subds. 2, 3;§ 170.25).

In breaking down this definition into its components, we read the phrase "written instrument" clearly to embrace the temporary permit and license application defendant procured and possessed.For the statute leaves no room for conjecture, expressly including "any * * * written or printed matter * * * 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"(Penal Law, § 170.00, subd. 1).It can hardly be denied that the license is a "symbol" of the holder's "right" to drive, that the application records the information needed by the motor vehicle authorities to issue a license and that each is issued by or filed with a public office.(AccordPeople v. Campisi, 82 Misc.2d 254, 369 N.Y.S.2d 322.)³

So narrowed, the question then becomes whether the instruments were forgeries.The search for the answer to that query well may start with section 170.00 of the Penal Law, under which the concept of a forged instrument includes one that is "falsely made", words which the section informs us are intended to cover a paper "which purports to be an authentic creation of its ostensible maker or drawer, but which is not such either because the ostensible maker or drawer is fictitious or because, if real, he did not authorize the making or drawing thereof"(subds. 4, 7).On its face this language appears to fit the garden variety of forgery, as when, for instance, the signature of the drawer of a check or the grantor of a deed has been counterfeited.

In signing the name Garry Morris, however, the defendant did not simulate, alter, erase or obliterate someone else's signature.Instead, in handwriting that was undisguised, he merely used his adopted name, as a Samuel Clemens may have used the name Mark Twain or a Mary Ann Evans that of George Eliot.Nor did he do anything directly or indirectly to suggest that anyone but he was the "ostensible" signer and applicant or, for that matter, that the name Garry Morris was other than his own.In short, he did nothing that would cause one who relied on the instruments to believe that Garry Morris was the name of someone else, real or "fictitious".Rather, he was unswerving in painting himself as the "ostensible maker or drawer".Nevertheless, the People, insisting that the name Garry Morris must be regarded as "fictitious" within the intendment of the statute, would have us hold that defendant's position is indistinguishable from that of one who has counterfeited a signature.Neither the history of the common law of forgery nor the logic of its present statutory formulation supports this argument.

The forged character of a document does not depend so much on whether it contains a falsehood, but on whether, on its face, it misrepresents its authenticity.To illustrate, suppose one other than the owner of real property unauthorizedly affixes the latter's signature to a conveyance of title.The false signature then constitutes the deed a forgery since it, at least impliedly, represents that the instrument is genuine.But suppose the deed, though in fact signed by the grantor, materially misdescribes the parcel's metes and bounds or mendaciously denies the existence of encumbrances.Then, whatever support the misrepresentation may give to a claim of fraud, a prosecution for forgery would not lie.(See, generally, Williams, Forgery and Falsity, 1974 Crim.L.Rev. 71;Perkins, Criminal Law (2d ed., 1969), pp. 342-346;cf.People v. Levitan, 49 N.Y.2d 87, 424 N.Y.S.2d 179, 399 N.E.2d 1199).

That is not to say that the signing of one's own name to an instrument cannot be a forgery.While generally it is not illegal per se to adopt an alias or a nom de plume, freedom to do so reaches its limits when the practice is accompanied by a fraudulent design (seeAnn., 49 A.L.R.2d 852;2 Wharton, Criminal Law (Anderson ed., 1957), § 630).

Let us take the case of a check drawn in the maker's assumed name and indorsed, as payee, in his original name.This item is "falsely made" because any person to whom it is negotiated would assume that the maker is a party distinct from the payee.The reason it is punished as forgery is that others might expect that this third party existed and that his credit would stand behind the instrument along with that of the payee (seeHubsch v. United States, 256 F.2d 820, 823;Comment, 37 N.C.L.Rev. 200, 204).The facts being to the contrary, i. e., the existence of an additional person being a "fiction", the result is that " 'the instrument * * * must be a false instrument in itself' "(Dunn's Case, 1 Leach CC 59, quoted by Lehman, J., in International Union Bank v. National Sur. Co., 245 N.Y. 368, 374, 157 N.E. 269, 271(forgery committed through fraudulent use of assumed names as drawers of checks and original name as their payee)).⁴

It is readily apparent that section 170.00, in deeming an instrument not "an authentic creation of its ostensible maker" when that maker is "fictitious"(subd. 4), continues to reflect the thinking that...