People v. Pergolizzi

• Decision Date: 16 December 1977
• Citation: 400 N.Y.S.2d 1005,92 Misc.2d 528
• Court: New York Supreme Court
• Parties: The PEOPLE of the State of New York v. Joseph PERGOLIZZI, Defendant.

Page 1005

400 N.Y.S.2d 1005

92 Misc.2d 528

The PEOPLE of the State of New York v.Joseph PERGOLIZZI, Defendant.

Supreme Court, Criminal Term, Queens County, Part 2.

Dec. 16, 1977.

Martin Erdmann, New York City, for the motion.

Michael T. Ridge, Richmond Hill, opposed.

PHILIP CHETTA, Justice.

The first branch of the defendant's motion requesting the inspection and transcription of the Grand Jury minutes and dismissal of the indictment is granted to the extent that the Court will examine the Grand Jury minutes.

The defendant, Joseph Pergolizzi, has been indicted for forgery in the second degree, (Penal Law § 170.10(2)): Obstructing governmental administration ( § 195.05) and criminal impersonation ( § 190.25) based on the following facts:

On July 15, 1977, the defendant was arrested for the crime of Petit Larceny.The defendant gave his name to the police processing his arrest, as Joseph Simonetti.The defendant also signed the name Joseph Simonetti on a fingerprint identificati card.Pursuant to procedure, a check under that name was conducted, and failed to reveal any prior criminal record or outstanding warrants.No record based on the defendant's fingerprints had been secured at this time.¹In reality, the defendant had a prior criminal record and an outstanding Nassau County bench warrant.When the check under the name of Joseph Simonetti indicated no prior record, he was issued an appearance ticket pursuant to § 150.20 of the Criminal Procedure Law, which he also signed under the name of Joseph Simonetti.The defendant was told to appear on August 18, 1977, for arraignment.The defendant appeared for arraignment but failed to appear on the next adjourned date.(The absence being attributable to the defendant being incorrectly informed by his counsel as to the proper adjournment date).Upon the defendant's failure to appear in court, an inquiry made by the arresting officer resulted in the ascertainment of the defendant's true name as Joseph Pergolizzi.The inquiry further revealed the outstanding Nassau County bench warrant.

Following the discovery of the defendant's true name, he was indicted for the above enumerated crimes, based upon his signing of the fingerprint identification card and the desk appearance ticket in the name of Joseph Simonetti.

The defendant contends that he cannot be prosecuted for forgery under the applicable statute since a fingerprint identification card and desk appearance ticket are not written instruments as defined under the Penal Law.

"Section 170.10(2) states that 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 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 officer or public servant."

Section 170.00(1) defines written instruments as (A)ny 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 statutory definition of written instrument includes a broad range of material both written or printed.(See Practice Commentaries following § 170.00.)

The issue in this case revolves around whether the material in question, the fingerprint identification card and the desk appearance ticket, are capable of being used to the advantage or disadvantage of some person.The defendant, relying on People v. Brown84 Misc.2d 267, 375 N.Y.S.2d 992(Nassau CountyNovember, 1975), contends that a fingerprint identification card does not meet the statutory definition of a written instrument.In Brown, the defendant signed a fingerprint card in the name of Eddie Freeman.Upon comparison with known fingerprints on record, it was learned that the defendant's real name was Lawrence Brown.The court's decision in Brown, holding that the fingerprint identification card is not capable of being used to the advantage or disadvantage of some person results from the court's belief

". . . that the value of such a fingerprint card depends not upon a name be it real or fictitious but rather upon an analysis of the fingerprint itself.Consequently, the defendant herein, never possessed the capability of using such fingerprint card, signed with a fictitious name either to his own advantage or to the disadvantage of the Police Department."Brown, supra 269, 375 N.Y.S.2d 994.

The People contend that the fingerprint identification card does fall within the statutory definition of a written instrument, and cite People v. St. Pierre, Misc., 398 N.Y.S.2d 622(Rensselaer County Court, Special Term September, 1977), to support this proposition.

In St. Pierre, the defendant, following his arrest, signed a fingerprint identification card in the name of Kenneth Riley.Following his release from custody, the defendant's true identity was learned and he was indicted for the crime of forgery in the second degree.The court in finding that the fingerprint identification card fell within the statutory definition of a written instrument, determined that the card could be used to the advantage or disadvantage of some person.

"Where, as it is alleged herein, the defendant is arrested and gives a fictitious name, by signing the fingerprint card with the same name, he uses the card to his advantage to continue to perpetrate his scheme to conceal his true identity and possibly, to hide a criminal record.The defendant's actions, in view of the fact that it may take weeks for the Police Department to discover from the fingerprint records that the defendant has given a fictitious name, can result in the defendant's release on either his own recognizance or on low bail when in fact, if his true identity were known, it might be discovered he is a predicate felon, a fugitive from justice or any other aggravating number of factors which would result in his detention or which would elevate the crime charged to a more serious offense."People v. St. Pierre, supra 623.

This court is in agreement with the St. Pierre holding and believes that the facts of the instant case reinforce its decision.In the case at bar, the defendant, following his arrest, gave his name as Joseph Simonetti and signed such on a fingerprint identification card.Following this, the police conducted a name check to determine whether the defendant had a prior criminal history or any outstanding warrants.Under the name given by the defendant, no prior record or warrants were discovered.The defendant was then issued a desk appearance ticket and released from custody.If the defendant had initially given the police his correct name, his prior...