People v. Miller

• Decision Date: 14 January 1988
• Citation: 138 Misc.2d 639,524 N.Y.S.2d 622
• Parties: The PEOPLE of the State of New York v. Sidney MILLER, Defendant.
• Court: New York Supreme Court

Page 622

524 N.Y.S.2d 622

138 Misc.2d 639

The PEOPLE of the State of New York v. Sidney MILLER, Defendant.

Supreme Court, Criminal Term,

New York County, Part 41.

Jan. 14, 1988.

Robert M. Morgenthau, Dist. Atty. of New York County by Robert E. Richardson, Asst. Dist. Atty., for the People.

Stuart Holtzman, Ullman & Holtzman, New York City, for Defendant.

MARTIN H. RETTINGER, Justice.

On October 27, 1987, the court rendered an oral decision upon the defendant's motions. The following constitutes an elaboration of the basis for the rulings by the court.

An indictment has been filed against the defendant and two others alleging fraudulent behavior by them in regard to nominating petitions they signed as subscribing witnesses. In regard to this defendant the indictment charges he committed 42 counts of criminal possession of a forged instrument in the second degree (Penal Law § 170.25); three counts of perjury in the second degree (Penal Law § 210.10); three counts of making a punishable false written statement (Penal Law § 210.45); and three counts of misconduct in relation to petitions (Election Law § 17-122, subd. 7).

The defendant has made a pretrial motion requesting several forms of relief. I shall address each of these items in turn.

I. THE CLAYTON MOTION

The defendant has moved pursuant to CPL 210.20(1)(i) and 210.40 for a dismissal of the entire indictment in the interests of justice. Using the CPL 210.40 statutory criteria as a guide, I have carefully examined the grounds provided by the defendant in support of the motion. I have determined that the defendant has failed to establish a compelling factor, consideration or circumstance clearly demonstrating that conviction or prosecution of him upon the indictment (aside from those counts I have determined must be dismissed for legal insufficiency) would constitute or result in injustice.

The motion to dismiss the indictment in the interests of justice is accordingly denied.

II. THE MOTION TO DISMISS ALL BUT 3 OF THE 42 COUNTS OF CRIMINAL POSSESSION OF A FORGED INSTRUMENT IN THE SECOND DEGREE AS MULTIPLICIOUS

The indictment charges the defendant with 42 counts of criminal possession of a forged instrument in the second degree. The gravamen of these counts is the alleged possession by the defendant of three Democratic Party nominating petitions in support of the candidacy of Pat Wagner for a seat upon the New York City Council. Each of these three standard form designating petitions has lines to accommodate as many as 15 separate voter signatures endorsing the designation of the candidate for the purpose of having her name placed upon the voter ballot in a primary election. The relevant portions of the petition for purposes of decision of the present motion are reproduced here as follows:

DEMOCRATIC PARTY

DESIGNATING PETITION

"To the Board of Elections in the City of New York:

"I, the undersigned, do hereby state that I am a duly enrolled voter of the Democratic Party and entitled to vote at the next primary election of such party, to be held on September 10, 1985; that my place of residence is truly stated opposite my signature hereto, and I do hereby designate the following named person (or persons) as a candidate (or candidates) for the nomination of such party for public office(s) or for election to party position(s) of such party."

* * *

* * *

"In witness whereof, I have hereunto set my hand, the day and year placed opposite my signature."

Directly beneath this endorsement language are the aforementioned 15 voter signature lines. The voter's signature is accompanied on the same line by the required additional information as to the date of the signing, the voter's residence, his assembly and election districts.

Beneath the 15 lines containing the nominating voter signatures is the following attestation purportedly made by the defendant:

STATEMENT OF WITNESS

"I SIDNEY A. MILLER state: I am a duly qualified voter of the State of New York and am an enrolled voter of the Democratic Party. I now reside at 164 WEST 79 TH STREET which is in the 72 Election District of the 67 Assembly District in the City of New York, in the County of New York.

"Each of the individuals whose names are subscribed to this petition sheet containing ------- signatures, subscribed the same in my presence on the dates above indicated and identified himself to be the individual who signed this sheet. I understand that this statement will be accepted for all purposes as the equivalent of an affidavit and, if it contains a material false statement, shall subject me to the same penalties as if I had been duly sworn."

Dated: June 29, 1987

(Defendant's Signature)

Signature of Witness

The blank space in the above paragraph was filled in with the numbers 12, 15 and 15, respectively, corresponding to the number of voter signatures appearing on each of the three nominating petitions.

The defendant has brought a motion seeking the reformation of the indictment to reduce the number of counts alleging a violation of criminal possession of a forged instrument in the second degree from forty-two to three. The defense contends that the appropriate unit of prosecution is each nominating petition, which has the defendant's attesting declaration and signature affixed at the bottom thereof, rather than each of the purportedly forged voter signatures appearing on the petitions.

The defense proffers the following analysis of the forgery statutes in support of the motion. Penal Law § 170.25 in relevant part states that:

"A person is guilty of criminal possession of a forged instrument in the second degree when, with knowledge that it is forged and with intent to defraud, deceive or injure another, he utters or possesses any forged instrument of a kind specified in section 170.10."

Referring back to Penal Law § 170.10 we find a list of various types of written instruments that can be the subject of a forgery in the second degree prosecution. The defense urges that among these written instruments the type that is relevant to the facts of this case is found in subdivision 2, which provides as follows:

"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 defense points to Election Law § 6-144 which provides that designating petitions are required to be filed in the office of the Board of Elections of the City of New York. A logical conclusion reached by the defense by synthesizing these statutes is that the appropriate unit of prosecution in this case is each nominating petition, rather than each allegedly forged voter signature appearing thereon.

The defense further argues that the indictment as presently constituted in regard to these 42 counts violates the prohibition against multiplicious pleading. An indictment is guilty of "multiplicity" when it charges in several counts an offense that under the circumstances has only been committed once and should properly be pleaded in a single count.

The People counter that the indictment is not void for multiplicity and that to accept the defendant's pleading theory would result in the commission of the equally egregious pleading offense of "duplicity", which occurs when two or more separate and distinct offenses are joined in a single count.

The following illuminating discussion of these terms appears in 1 Wright, Federal Practice and Procedure, § 142, at 470 (2d ed. 1982) [footnotes omitted]:

"is apparent that the presence of duplicity or multiplicity is dependent on whether a single offense or distinct and separate offenses are involved. Two examples will illustrate. If two or more women are transported in interstate commerce for immoral purposes in the same trip and the same vehicle, only one offense has been committed under the Mann Act, since it is the use of the facility of interstate commerce that is the essence of that statute. But if two or more aliens are smuggled into the United States in a single trip, a separate offense has been committed with regard to each alien, since the statute imposes a separate mandatory punishment as to each alien involved. In the Mann Act case, then, since there is a single offense, the charge can and should be made in a single count, since separate counts for each woman involved would be multiplicious. In the case of the aliens, on the other hand, since separate offenses are involved, a separate count should be used for each alien, and a single count referring to more than one alien would be duplicitous."

Before further examining the antagonistic claims of multiplicity and duplicity being made, the People's position concerning the propriety of the pleading of the forty-two counts in issue must be explored. The People begin by focusing on the term "falsely make" which is found in the introductory paragraph of Penal Law § 170.10 (forgery in the second degree), which is incorporated by reference in Penal Law § 170.25 (criminal possession of a forged instrument in the second degree). This paragraph 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 ..."

The term "falsely makes" is defined in Penal Law § 170.00, subd. 4 as follows:

"A person 'falsely makes' a written instrument when he makes or draws a complete written instrument in its entirety, or an incomplete written instrument, which purports to be an authentic creation of its ostensible maker or drawer, but which is not such either because the ostensible maker or drawer is fictitious or because, if real, he did not authorize the making or drawing thereof."

The prosecutor urges that under this definition of forgery the focus is on the "ostensible maker or drawer" of the written instrument. He further reasons that if one written instrument has more than one ostensible maker or drawer, i.e., more than one unauthorized...