People v. Levitan

• Decision Date: 08 January 1980
• Citation: 49 N.Y.2d 87,424 N.Y.S.2d 179,399 N.E.2d 1199
• Parties: , 399 N.E.2d 1199 The PEOPLE of the State of New York, Respondent, v. Molly LEVITAN, Elsie Rutkowski, Also Known as Elsie Rutkowsky, and David Rutkowski, Also Known as David Rutkowsky, Appellants. The PEOPLE of the State of New York, Respondent, v. Molly LEVITAN, David Rutkowski, Also Known as David Rutkowsky, and Laurell Associates, Inc., Appellants.
• Court: New York Court of Appeals Court of Appeals

Page 179

424 N.Y.S.2d 179

49 N.Y.2d 87, 399 N.E.2d 1199

The PEOPLE of the State of New York, Respondent, v.Molly LEVITAN, Elsie Rutkowski, Also Known as Elsie

Rutkowsky, and David Rutkowski, Also Known as

David Rutkowsky, Appellants.

The PEOPLE of the State of New York, Respondent, v.Molly LEVITAN, David Rutkowski, Also Known as David

Rutkowsky, and Laurell Associates, Inc., Appellants.

Court of Appeals of New York.

Jan. 8, 1980.

Carl Spitznagel, Jr., Commack, for appellants.

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

OPINION OF THE COURT

GABRIELLI, Judge.

Defendants appeal from an order of the Appellate Division which affirmed their convictions of several counts of forgery in the second degree.The issue presented on this appeal is whether the actions described below, which defendants admittedly engaged in, comprise the crime of forgery in the second degree.We hold that they do not.

DefendantMolly Levitan signed three documents purporting to be deeds transferring title of certain real property in Suffolk County to entities controlled by her codefendants.She signed her own name to each of the deeds, and no pretense was ever made that the signatory was anyone other than defendantMolly Levitan.She signed one of the deeds as an individual grantor and the other two as an officer of the corporate grantors.No claim is made that she was not authorized to do so by the corporate grantors.Unfortunately, neither Molly Levitan nor the corporate grantors held title to the realty purportedly transferred by the deeds.The true owners of the property were and remain unknown, and the land was not on the tax assessment rolls of the town in which it is located.The defendants intended to and did record the deeds and thereby have the land placed upon the assessment rolls under the record ownership of entities controlled by them.It was defendants' intent to cause these entities to then default in payment of taxes on the land, so that defendants could purchase the land at a tax sale.The question on this appeal is whether Molly Levitan"forged" the three deeds.For the reasons discussed below, we conclude that she did not.Although defendants may well have committed other crimes, their convictions for forgery in the second degree may not stand.

The crime of forgery in the second degree is defined in section 170.10 of the Penal Law which, insofar as is pertinent, provides 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 * * * (a) deed * * * or an instrument * * * filed in * * * a public office".Assuming that all other elements of the crime of forgery in the second degree are present in this case, defendants' convictions may not stand for the simple reason that Molly Levitan did not falsely make, complete, or alter a written instrument, as those terms are defined for purposes of delineating the crime of forgery.Under our present Penal Law, as under prior statutes and the common law, a distinction must be drawn between an instrument which is falsely made, altered or completed, and an instrument which contains misrepresentations not relevant to the identity of the maker or drawer of the instrument (seePeople v. Cannarozzo, 48 N.Y.2d 687, 421 N.Y.S.2d 882, 397 N.E.2d 393, affg. for reasons stated at 62 A.D.2d 503, 405 N.Y.S.2d 528;People v. Underhill, 142 N.Y. 38, 36 N.E. 1049;People v. Sangiovanni, 52 A.D.2d 930, 383 N.Y.S.2d 412).

In essence, the crime of forgery involves the making, altering, or completing of an instrument by someone other than the ostensible maker or drawer or an agent of the ostensible maker or drawer.While it is true that in certain rare instances one may commit a forgery by signing one's own name, this is so only where the signing is done in such a way as to deceive others into believing that the signer is in fact some third party(seePeople's Trust Co. v. Smith, 215 N.Y. 488, 109 N.E. 561;International Union Bank v. National Sur. Co., 245 N.Y. 368, 157 N.E. 269).This was the rule under prior law, and it remains the law today.While the Legislature certainly could change this rule, since it may define a crime however it wishes absent some constitutional infirmity, examination of the present statutes indicates quite persuasively that the Legislature has not chosen to modify this particular aspect of the traditional definition of forgery.

As noted above, forgery...