People v. Gerber
| Decision Date | 10 August 1982 |
| Citation | 115 Misc.2d 222,453 N.Y.S.2d 998 |
| Parties | The PEOPLE of the State of New York v. Charles GERBER, Defendant. |
| Court | New York City Court |
Rosenbluth, Rosenbluth & Rodney, New York City, for defendant; Leonard Rodney, New York City, of counsel.
Robert M. Morgenthau, Dist. Atty., for the People; Joann Naiman, New York City, of counsel.
The defendant is charged with violating Penal Law section 190.05, issuing bad checks a class B misdemeanor. Claiming that the checks in question were all postdated and that postdated checks could not give rise to criminal liability, the defendant moved pursuant to C.P.L. 170.30 for a dismissal as a matter of law on the grounds of legal insufficiency. This motion raised the issue of what elements New York courts use to define a postdated check which is a question of first impression.
From the motion papers the undisputed facts appear to be as follows. The complaining witness did some production work for the defendant. The defendant agreed to pay the complaining witness $9,000.00. On February 24, 1982 the defendant wrote three checks, each in the amount of $3,000.00. The checks were dated March 1, March 8 and March 15, 1982.
On that day (February 24, 1982) the defendant gave the three checks to his attorney, Mr. J. Wm. Rosenbluth of Rosenbluth, Rosenbluth & Rodney. Mr. Rosenbluth then caused the checks to be delivered to the complaining witness on the date of each respective check. That is the complaining witness received the check dated March 1, 1982 on March 1, 1982 and the other two checks on their respective dates. The checks were deposited and returned for insufficient funds.
On March 23, 1982 the complaining witness swore out the complaint in this matter. The papers before us fail to give sufficient facts to resolve the potentially crucial agency issue.
In the facts described above the complaining witness apparently had no notice that the checks were written prior to the dates on their face. This court must now determine the issue of whether New York defined a postdated check simply as a check written prior to the date on the instrument or whether New York requires an additional element, that additional element being that the person receiving the check must have express or implied notice that the check was written prior to the date on its face.
If a check, delivered to the payee without express or implied notice that the check was written prior to the date on the instrument, is a postdated check within the meaning of the Penal Law then, as a matter of law, this court must grant the defendant's motion to dismiss. On the other hand, if New York The facts in this case established that the checks in question were written prior to the date on the instruments, but failed to establish that the complaining witness had any notice of this established fact. We must now look to the statutes and case law to see if any form of notice is required before the defendant can be excused from criminal liability. The fact that it is possible to avoid criminal liability under the Penal Law by writing a postdated check does not resolve the defendant's potential civil liability on the checks.
statutes and common law require that the person who received a check to have had notice that the check was written prior to the date on its face to be considered a postdated check, then this court could not say as a matter of law that the checks involved here were postdated. The motion would have to be denied and the matter set down for trial.
Penal Law section 190.00(1) defines a check as "any check, draft or similar sight order for the payment of money which is not postdated with respect to the time of utterance." The Penal Law does not specifically give a definition of postdated checks. However, since the Penal Law only excludes those checks which are postdated with respect to the "time of utterance" from being considered bad checks under Penal Law section 190.05, it is possible to examine how Penal Law section 190.00(4) defines the verb "utter" and then extrapolate a rule.
Penal Law section 190.00(4) states that
Under the extrapolated rule a person receiving a check prior to the date on the instrument is only entitled to the implied notice which comes from the fact that the date on the check is a future date. By applying this rule to the facts stated above we must conclude that the complaining witness was not able to get even this limited notice and hold that on the information before us the checks were not postdated. Unfortunately the result of this extrapolation is unsatisfactory as the heart of the definition of the term "utter" requires one to deliver or cause a check to be delivered without consideration of when the check is received.
The Practice Commentaries in McKinney's explain that the purpose of the definition of the term "utter" was intended to contrast the term "utter" from the term "pass" rather than to further define a postdated check. Nor does the Uniform Commercial Code provide a clear definition of a postdated check except that UCC 3-114 says that the negotiability of an instrument is not affected by the fact that it is post-dated.
Since the statutes fail to give us a clear definition of a postdated check it seems more appropriate to look to the case law rather than to stretch statutory language to the breaking point.
The courts of this state have a long standing policy of encouraging the use of post-dated checks in the commercial world. In 1834 it was said that "The drawing of post-dated checks is an everyday's occurrence in our commercial cities" Mohawk Bank v. Broderick, 13 Wend. 133 at 134-135. "Post-dated checks are instruments often used, and their nature and character are well understood by bankers and the trading community." Clarke National Bank v. Bank of Albion, 52 Barb. 592 at 600 (1868); Bowen v. Newell, 8 N.Y. 190 (1853).
In every New York case in which the defendant escaped criminal liability under the bad check statute by use of a postdated check, the person who received the check had express or implied notice that the check had been drawn prior to the date on the face of the instrument. In virtually all the cases cited by the defendant in support of In People v. Mazeloff, 229 A.D. 451, 242 N.Y.S. 623 (1930) the defendant gave the complainant a check bearing the date October 30, 1929. The check was made and delivered on October 3, 1929. Here the paper itself gave notice of postdating. The court explained that no criminal liability attaches to a postdated check as, "Fraud can not be predicated upon non-performance of a future promise, and a postdated check is a mere promise to discharge a present obligation at a future date." People v. Mazeloff, supra, at 452, 242 N.Y.S. 623. "implication of giving a postdated check is that the maker has not presently funds on deposit rather than that he has." People v. Mazeloff, supra, at 453, 242 N.Y.S. 623. This follows the reasoning of an earlier case where it was held that "the drawer is not in funds at the bank on which he draws his check, when he makes and delivers the same, and does not expect to be until the arrival of the date inserted in the check." Clarke National Bank v. Bank of Albion, supra, at 600.
his motion and all the cases found by this court the check in question was delivered prior to the date on its face thereby giving notice of postdating.
In Azzarello v. Richards, 198 Misc. 723, 99 N.Y.S.2d 597 (1950), the drawer signed and delivered a check on July 6, 1949. The check was dated July 8, 1949. Here the instrument itself gave notice that it was postdated. The court found that Azzarello v. Richards, supra, at 724, 99 N.Y.S.2d 597.
In Alpha Aromatics, Inc. v. Anthony Frisone, 50 Misc.2d 341, 270 N.Y.S.2d 493 (1966), a check dated July 30, 1963 was delivered on July 26, 1963. The instrument gave sufficient notice of postdating to prevent the issuing corporate officer from being found guilty of fraud.
In People v. Kubitz, 37 Misc.2d 453, 235 N.Y.S.2d 971 (1963), a check dated October 10, 1962 but delivered on October 9, 1962 was found to be postdated and the defendant was found not guilty of issuing a bad check.
In most of the cases cited above the requirement that the payee of the check must have at least implied notice of the fact that the check is dated later than the date of delivery is taken from the facts and not explicitly mentioned by the court. There are two New York cases in which the notice element of postdating is more clearly if briefly discussed by the court.
In Clarke National Bank v. Bank of Albion, supra, at 600, the court, although not speaking of a payee of a check, did say that "The plaintiff's bank did not receive from the face of the paper, the same full and complete notice ..."
In People v. Kapitofsky, 144 Misc. 543, 258 N.Y.S. 861 (1932) the defendant gave a check to the complainant's sales representative with an agreement that the check would be held for 10 days. The check was deposited after 5 days and...
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