People v. Kirk

• Decision Date: 30 December 1985
• Citation: 497 N.Y.S.2d 139,115 A.D.2d 758
• Parties: The PEOPLE, etc., Appellant, v. Theresa KIRK, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 139

497 N.Y.S.2d 139

115 A.D.2d 758

The PEOPLE, etc., Appellant, v. Theresa KIRK, Respondent.

Supreme Court, Appellate Division Second Department.

Dec. 30, 1985.

Patrick Henry, Dist. Atty., Riverhead (Michael J. Miller, of counsel), for appellant.

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

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

MEMORANDUM BY THE COURT.

Appeal by the People from an order of the County Court, Suffolk County (Sherman, J.), dated January 23, 1985, which granted the defendant's motion to dismiss the indictment against her for forgery in the second degree.

Order reversed, on the law, indictment reinstated, and matter remitted to the County Court, Suffolk County.

Defendant was charged with one count of forgery in the second degree (Penal Law § 170.10) by the Suffolk County Grand Jury. The indictment alleged that on May 24, 1984, defendant "falsely completed" a fingerprint card by signing it with a name other than her own, to wit, her sister's name. Thereafter, on December 13, 1984, she moved to dismiss said indictment on the ground that signing a fingerprint card with a false name does not constitute the crime of forgery in the second degree. The County Court agreed and dismissed the indictment, concluding that the card was not a "written instrument" within the purview of the forgery statute because the use of a fingerprint card signed with a third person's name "does not work to the advantage or disadvantage of anyone". We now reverse.

For the purpose of prosecution pursuant to New York's forgery statutes, the term "written instrument" is defined by Penal Law § 170.00(1) 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."

The definition has been recognized as a very broad one (see, People v. Gottlieb, 36 N.Y.2d 629, 632, 370 N.Y.S.2d 884, 331 N.E.2d 670), and thus the crime of forgery has been held to encompass both falsified mail-order subscriptions (People v. Hacken, 56 Misc.2d 950, 289 N.Y.S.2d 893) and a bogus driver's license (People v. Campisi, 82 Misc.2d 254, 369 N.Y.S.2d 322, affd. 51 A.D.2d 595, 379 N.Y.S.2d 377). A fingerprint card, signed with another person's name, also comes within the purview of a "written instrument" for forgery purposes because it can be used to the advantage or disadvantage of someone. Indeed, contrary to defendant's contentions, a criminal suspect gains a very real advantage when he signs the name of another to such a card, because he is thereby able to at least temporarily hide from the authorities his prior criminal history and his true identity. As other courts have noted, a false signature could reasonably lead the authorities to conclude that a suspect has no past criminal record and, as a consequence, he might be released on his own recognizance or upon very low bail (see, 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). Moreover, a suspect with no criminal history who falsely signs a fingerprint card might gain the advantage of having his prints recorded in the name of the other person, thus hampering his identification by the police in future investigations based solely upon the presence of his fingerprints at the scene of the crime (see, People v. St. Pierre, supra). We therefore find that the County Court erred in dismissing the indictment.

Finally, we note that the sole issue considered by the County Court in dismissing the indictment, and the sole issue addressed by the parties on this appeal, is whether a fingerprint card constitutes a "written instrument" within the meaning of Penal Law § 170.00(1). Thus, the further issue addressed by our dissenting colleague, i.e., whether the fingerprint card was falsely made or falsely completed so as to constitute a forgery (see, Penal Law § 170.00[4], [5]; see also, People v. Briggins, 50 N.Y.2d 302, 428 N.Y.S.2d 909, 406 N.E.2d 766), is beyond the proper scope of this appeal.

LAZER, J.P., and BRACKEN and O'CONNOR, JJ., concur.

BROWN, Justice, dissents and votes to affirm the order dismissing the indictment, with the following memorandum.

The principal issue presented on this appeal (and in People v. Bigus, App.Div., 497 N.Y.S.2d 145 [decided herewith] ) is whether one who signs a fingerprint card using a name other than his or her own may be convicted of the crime of forgery in the second degree. Specifically, in the instant case the defendant was charged with the crime of forgery in the second degree (Penal Law § 170.10[2] ) based upon her having signed a name other than her own--to wit, her sister's name--to a fingerprint card while being processed after her arrest on other charges.

The crime of forgery in the second degree (Penal Law § 170.10) to the extent relevant herein is defined as follows:

"A person is guilty of forgery in the second degree when, with intent to defraud, deceive or injure another, he falsely makes, completes or alters a written instrument which is or purports to be, or which is calculated to become or to represent if completed

* * *

* * * "2. A public record, or an instrument filed or required or authorized by law to be filed in or with a public office or public servant".

The County Court concluded--in my view, correctly--that a fingerprint card is not a "written instrument" within the meaning of Penal Law § 170.00. Said section defines that terms as follows:

"1. 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".

As the County Court pointed out, "the fingerprint card is used for the classification and identification of the fingerprints imprinted thereon * * * [and] the value of the fingerprint card depends, not upon a name, whether real or fictitious, but upon an analysis of the fingerprint itself". The use of a fictitious name on the fingerprint card does not in any manner prevent the classification of those fingerprints according to type and shape, and does not prevent the police from matching those fingerprints with their files to determine the identity and past history of the person to whom they belong. A person's fingerprints are unique, and that is the significant information on the fingerprint card, not the name which the person has chosen to proffer at the moment. The fundamental information on the fingerprint card, the fingerprint itself, was true and accurate. In placing her fingerprints on the card an arrestee cannot falsify that significant information so as to portray the fingerprints of another individual and thereby gain an advantage in concealing her identity (see, People v. Brown, 84 Misc.2d 267, 375 N.Y.S.2d 992). While an arrestee's lack of cooperation by providing a fictitious name may prove inconvenient to the police, I am not prepared to conclude that such act constitutes criminal conduct (People v. Brown, supra; People v. Ketter, 76 Misc.2d 698, 351 N.Y.S.2d 579; People v. Gaissert, 75 Misc.2d 478, 348 N.Y.S.2d 82). The conduct of the defendant here and in People v. Bigus (supra), while no doubt devious, is not the type of activity which is generally punishable under traditional concepts of forgery (see, People v. Sansanese, 17 N.Y.2d 302, 270 N.Y.S.2d 607, 617 N.E.2d 660), nor does it fall within the fair import of the forgery statute. Penal responsibility should not be extended beyond the statutory mandate (People v. Wood, 8 N.Y.2d 48, 201 N.Y.S.2d 328, 167 N.E.2d 736) and I conclude that the Legislature never intended that the penal sanctions for forgery in the second degree should extend to this type of conduct. Therefore, I would agree with the County Court that a fingerprint card is not a written instrument within the meaning of Penal Law § 170.00.

Moreover, aside from any question as to whether a fingerpri card constitutes a written instrument under the statute, there is in my mind an issue as to whether defendant Kirk falsely completed that instrument as the indictment herein charges. The term "falsely complete" means that a person "by adding, inserting or changing matter * * * transforms an incomplete written instrument into a complete one, without the authority of anyone entitled to grant it, so that such complete instrument appears or purports to be in all respects an authentic creation of or fully authorized by its ostensible maker or drawer" (Penal Law § 170.00[5], emphasis added). It is clear in this case that defendant did not complete the fingerprint card without authority. Indeed, defendant who had placed her fingerprints upon the card was not only authorized to complete the fingerprint card but, apparently, was directed to do so by the police. Nor does the evidence support a finding that the card was completed such that it appeared or purported to be in all respects an authentic creation of or fully authorized by its ostensible maker. The defendant was the ostensible maker and it was her authorized authentic creation. As has been noted, "when a individual signs a name to an instrument and acknowledges it as his own, that person is the 'ostensible maker' " (People v. Briggins, 50 N.Y.2d 302, 307, 428 N.Y.S.2d 909, 406 N.E.2d 766; see also, People v. Levitan, 49 N.Y.2d 87, 91, 424 N.Y.S.2d 179, 399 N.E.2d 1199).

Similarly, I find that the facts at bar do not support a finding that defendant is guilty of falsely making the instrument. The term "falsely make" is defined by...