People v. Watts

• Decision Date: 20 November 2018
• Docket Number: No. 125,125
• Parties: The PEOPLE of the State of New York, Respondent, v. Rodney WATTS, Appellant.
• Court: New York Court of Appeals Court of Appeals

32 N.Y.3d 358
116 N.E.3d 60
91 N.Y.S.3d 769

The PEOPLE of the State of New York, Respondent,
v.
Rodney WATTS, Appellant.

No. 125

Court of Appeals of New York.

November 20, 2018

Robert S. Dean, Center for Appellate Litigation, New York City (Arielle I. Reid of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York City (Lee M. Pollack and Sheila O’Shea of counsel), for respondent.

OPINION OF THE COURT

FAHEY, J.

32 N.Y.3d 360

91 N.Y.S.3d 770

116 N.E.3d 61

An event ticket, such as a concert or sports event ticket, affects a legal right, interest, obligation, or status within the meaning of Penal Law § 170.10(1). This means that a defendant may be prosecuted under Penal Law § 170.25 for possession of counterfeit event tickets.

Defendant Rodney Watts, accused of selling counterfeit concert tickets, was charged by indictment with multiple counts of criminal possession of a forged instrument in the second degree ( Penal Law § 170.25 ). A person is guilty of that crime "when, with knowledge that it is forged and with intent to defraud, deceive or injure another, [the person] utters or possesses any forged instrument of a kind specified in [Penal Law] section 170.10" ( Penal Law § 170.25 ). Penal Law § 170.10, the second-degree forgery statute, specifies, as one type of forged instrument, "a written instrument which is or purports to be, or which is calculated to become or to represent if completed ... [a] deed, will, codicil, contract, assignment, commercial instrument, credit card, ... or other instrument which does or may evidence, create, transfer, terminate or otherwise affect a legal right, interest, obligation or status " ( Penal Law § 170.10[1] [emphasis added] ). We refer to the emphasized words as the statute's catchall clause.

Defendant moved to dismiss the indictment, noting that each count contained a "to wit" phrase charging him with possessing a forged instrument that purported to be "a ticket to a ... concert." He contended that a counterfeit concert ticket falls outside the ambit of the second-degree forgery statute (and, therefore, the second-degree criminal possession of a forged instrument statute), on the ground that a concert ticket does not "affect a legal right, interest, obligation or status." Defendant also argued that the catchall clause must be read to contemplate only documents of the same character as a "deed, will, codicil, contract, assignment, commercial instrument, [or] credit card" ( Penal Law § 170.10[1] ), and insisted that concert tickets are not of this nature.

Supreme Court denied defendant's motion, reasoning that a concert ticket does "affect a legal right, interest, obligation or status," within the meaning of the statute, because it "grants

32 N.Y.3d 361

the holder the right to enter the venue and view the performance." Defendant could therefore be prosecuted under Penal Law § 170.25 for possession of a forged instrument purporting to be a concert ticket.

Defendant was subsequently arrested in possession of counterfeit sports event tickets. He was again charged by indictment and his motion to dismiss this indictment was also denied. Defendant ultimately pleaded guilty to two counts of criminal possession of a forged instrument in the second degree, in satisfaction of the indictments, resulting in two judgments of conviction and sentence.

On appeal from the judgments, defendant argued that the indictments are jurisdictionally defective for the same reason urged in his motions to dismiss. The Appellate Division rejected defendant's contention, holding that counterfeit event tickets are written instruments that purport to "affect a legal right, interest, obligation or

91 N.Y.S.3d 771

116 N.E.3d 62

status" under Penal Law § 170.10(1) ( 148 A.D.3d 578, 48 N.Y.S.3d 602 [1st Dept. 2017] ). A Judge of this Court granted defendant leave to appeal ( 30 N.Y.3d 984, 67 N.Y.S.3d 586, 89 N.E.3d 1266 [2017] ). We now affirm.

Defendant's argument, a jurisdictional challenge to the indictments against him, amounts to the claim that the otherwise valid statement of the elements of the crime in each count is negated by the specific allegation in the "to wit" phrase that the forged instrument purported to be an event ticket. He insists, in effect, that counterfeit event tickets could never fall within the ambit of the second-degree forgery statute. Defendant's rationale is that event tickets, the instruments that defendant's counterfeit documents purported to be, are merely revocable licenses and do not "affect a legal right, interest, obligation or status."

Defendant's premise that event tickets are revocable licenses is true. The case law saying as much is venerable. The purchase of an event admission ticket gives the holder "a revocable license ... to enter the building in which [the event is held], and to attend the performance" ( People ex rel. Burnham v. Flynn, 189 N.Y. 180, 185–186, 82 N.E. 169 [1907] ; see also Collister v. Hayman, 183 N.Y. 250, 253, 76 N.E. 20 [1905] ). An event ticket, in other words, is a permission slip, subject to retraction.

It does not follow, however, that an event ticket does not affect a legal right, i.e., "right created or recognized by law" (Black's Law Dictionary [10th ed 2014], legal right), or status,

32 N.Y.3d 362

i.e., "legal condition, whether personal or proprietary" (Black's Law Dictionary [10th ed 2014], status). Indeed, the same decisions on which defendant relies to demonstrate the revocable nature of event tickets also describe the legal rights, albeit limited, that a ticket evidences or otherwise affects. An event ticket, the Court wrote, "is a license, issued by the proprietor ... as convenient evidence of the right of the holder to admission " ( Collister, 183 N.Y. at 253, 76 N.E. 20 [emphasis added] ). The Legislature has...