People v. Kadin

• Decision Date: 12 December 1963
• Citation: 245 N.Y.S.2d 698,41 Misc.2d 424
• Parties: The PEOPLE of the State of New York v. Bernard KADIN, Defendant.
• Court: New York Supreme Court

Page 698

245 N.Y.S.2d 698

41 Misc.2d 424

The PEOPLE of the State of New York v. Bernard KADIN, Defendant.

Supreme Court, criminal Term, Queens County, Part II.

Dec. 12, 1963.

Anthony F. Marra, New York City, for defendant for the motion, by Bob M. Finkin, Kew Gardens, of counsel.

Frank D. O'Connor, Dist. Atty., Queens County (Eileen M. Thornton, Asst. Dist. Atty.), of counsel, opposed.

J. IRWIN SHAPIRO, Justice.

The defendant contends that he was improperly sentenced as a second felony offender on his conviction of Grand Larceny in the Second Degree on June 19, 1956, and he therefore makes this motion to be resentenced as a first felony offender.

The predicate for the defendant's adjudication as a second felony offender was a conviction of the defendant by a General Court Martial for violating the 93rd Article of War. ¹ The specifications under the 93rd Article of War of which the defendant was convicted, dealt with forgery. The specification charging the defendant with a violation of the 93rd Article of War reads as follows:

'Charge III: Violation of the 93d Article of War

'Specification I: 'In that Private BERNARD J. KADIN, Company R, 1st Regiment, 9301 Technical Service Unit, Detachment No. 3, Army Service Forces Training Center (Ordnance), Aberdeen Proving Ground, Maryland, with intent to defraud The Western Union Telegraph Company at Aberdeen Proving Ground, maryland, did, at Aberdeen Proving Ground, Maryland, on or about 17 December 1945 forge the signature of Private Norman Fountain upon a Western Union Money Order'.' (Copy of Money Order on original of Army papers.)

The 93d Article of War reads: 'Any person subject to military law who commits manslaughter, mayhem, arson, burglary, housebreaking, robbery, larceny, embezzlement, perjury, forgery, sodomy, assault with intent to commit any felony, assault with intent to do bodily harm with a dangerous weapon, an instrument, or other thing, or assault with intent to do bodily harm, shall be punished as a court-martial may direct.'

Forgery is defined in the Court-Martial Manual, U. S. Army, 1928, paragraph 149, as: 'the false and fraudulent making or altering of an instrument which would, if genuine, apparently impose a legal liability on another or change his legal liability to his prejudice.'

Section 880 of the New York Penal Law defines the terms 'forge, forged and forging' as follows: 'The expressions 'forge', 'forged' and 'forging' as used in this article, include false making, counterfeiting and the alteration, erasure, or obliteration of a genuine instrument, in whole or in part, the false making or counterfeiting of the signature, of a party or witness, and the placing or connecting together with intent to defraud different parts of several genuine instruments.' (Emphasis supplied.)

'Section 884. Forgery in the first degree: A person is guilty of forgery in the first degree who with intent to defraud, forges:

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'5. A * * * or other obligation of evidence of debt, issued or purporting to be issued by any bank, banking association or body corporate existing under the laws of this state, or of the United States, or of any other state, government, or country, declaring or purporting to declare any right, title or interest of any person in any portion of the capital stock, or property of such a body corporate, or promising or purporting to promise or agree to the payment of money, or the performance of any act, duty or obligation'.

'Section 887. Forgery in the second degree: A person is guilty of forgery in the second degree who, with intent to defraud:

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'4. Makes, executes, alters, counterfeits, or forges, or causes or procures to be made, executed, altered, counterfeited, or forged or willingly aids or assists in making, executing, altering, counterfeiting, or forging, by any way,...