People v. Campisi

• Decision Date: 03 June 1975
• Citation: 82 Misc.2d 254,369 N.Y.S.2d 322
• Parties: PEOPLE of the State of New York v. Jack CAMPISI, Defendant.
• Court: New York Supreme Court

Page 322

369 N.Y.S.2d 322

82 Misc.2d 254

PEOPLE of the State of New York v.Jack CAMPISI, Defendant.

Supreme Court, Criminal Term, Richmond County.

June 3, 1975.

Edward A. Vielkind, Dist. Atty. (George McVay, Staten Island, of counsel), for People.

Frank T. Geoly, Brooklyn For defendant.

MEMORANDUM

VITO J. TITONE, Justice.

In this criminal action, defendant moves for an order setting aside the verdict of this Court, rendered February 14, 1975, finding him guilty, Inter alia, after a non-jury trial, of the crime of Criminal Possession of a Forged Instrument in the second degree (Penal Law, § 170.25).The instrument in question was a purported New York State operator's license.

The principal argument raised by defense counsel is that assuming the District Attorney had proved that the subject license was forged, the Court should have found his client guilty, not of the general crime of possession of a forged instrument as a felony (Penal Law, § 170.25), which it did, but rather guilty of the specific violation of possession of a forged, fictitious or illegally obtained license, under Section 509, subdivision 6 of the Vehicle and Traffic Law, which is a traffic infraction.

The Court acknowledges that initially it tended to agree with the defense counsel's position on the theory that a specific statute takes precedence over a general statute dealing with the same subject matter (LoBello v. McLaughlin, 39 A.D.2d 404, 334 N.Y.S.2d 692, app. dism., 31 N.Y.2d 782, 339 N.Y.S.2d 108, 291 N.E.2d 388, aff'd, 33 N.Y.2d 755, 350 N.Y.S.2d 406, 305 N.E.2d 487).

However, after further research, the Court concludes that the verdict herein finding defendant guilty under the general penal statute relating to possession of a forged instrument should not be set aside, even though defendant could have been found guilty of the specific traffic infraction or violation dealing with possession of a forged operator's license, under the Vehicle and Traffic Law.Simply because the Vehicle and Traffic Law specifically deals with a type of conduct, does not mean that its application is exclusive as to all other statutes penal in nature (People v. Sansanese, 17 N.Y.2d 302, 305, 270 N.Y.S.2d 607, 609, 217 N.E.2d 660, 661).There is no reason, constitutional or otherwise precluding prosecution under a more general penal provision, so long as it is applicable to the situation and contains no legislative limitation (People v. Sansanese, supra, at page 305, 270 N.Y.S.2d at page 609, 217 N.E.2d at page 661;People v. Bord, 243 N.Y. 595, 154 N.E. 620;People v. Hines, 284 N.Y. 93, 105, 29 N.E.2d 483, 489;People v. Coppo, 16 Misc.2d 879, 183 N.Y.S.2d 313, aff'd, 11 A.D.2d 722, 205 N.Y.S.2d 879).The State may proceed under the general penal statute even though a more specific statute is available (People v. Hines, supra, 284 N.Y. at page 105, 29 N.E.2d at page 489).

The Court notes that in People v. Sansanese, supra, the Court of Appeals reversed and dismissed an indictment charging a defendant with offering a false or forged instrument to be filed as a felony, pursuant to Section 2051 of the former Penal Law.The instrument in question was a forged application for an operator's license.It was the State's highest Court's opinion that such writing was not an 'instrument' as...