People v. Zeller
| Citation | 122 A.D.3d 1081,996 N.Y.S.2d 780,2014 N.Y. Slip Op. 08068 |
| Decision Date | 20 November 2014 |
| Docket Number | 105747 |
| Parties | The PEOPLE of the State of New York, Appellant, v. Bobbie Jo ZELLER, Respondent. |
| Court | New York Supreme Court Appellate Division |
122 A.D.3d 1081
996 N.Y.S.2d 780
2014 N.Y. Slip Op. 08068
The PEOPLE of the State of New York, Appellant
v.
Bobbie Jo ZELLER, Respondent.
105747
Supreme Court, Appellate Division, Third Department, New York.
Nov. 20, 2014.
Brian D. Pilatzke, Canton, for appellant.
Nicole Duve, Special Prosecutor, Ogdensburg, for respondent.
Before: STEIN, J.P., GARRY, ROSE, LYNCH and DEVINE, JJ.
Opinion
DEVINE, J.
Appeals (1) from an order of the County Court of St. Lawrence County (Richards, J.), entered September 24, 2013, which, upon reargument, partially granted defendant's motion to dismiss the indictment, and (2) from an order of said court, entered November 4, 2013, which denied the People's motion to reargue.
Defendant was charged by indictment with grand larceny in the second degree (two counts), criminal possession of a forged instrument in the second degree (three counts), grand larceny in the third degree (two counts) and scheme to defraud in the first degree as a result of her giving fake checks under the guise of repaying debts to the victims who had loaned her money. Defendant moved to dismiss the indictment, challenging, among other things, the legal sufficiency of the three counts of criminal possession of a forged instrument in the second degree on the ground that the checks created by defendant did not constitute forged instruments. County Court denied the motion. Pursuant to defendant's motion to reargue, the Court partially granted the motion and dismissed those three counts. Thereafter, the People moved for leave to reargue, which motion was
denied by County Court. The People now appeal from both orders.1
The People maintain that County Court erred in dismissing the three counts at issue because the checks created by defendant are forged instruments within
the meaning of Penal Law § 170.25. Under that section, “[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 [or she] utters or possesses any forged instrument of a kind” as described under Penal Law § 170.10 (Penal Law § 170.25 ). A forged instrument is defined as a “written instrument which has been falsely made, completed or altered” (Penal Law § 170.00[7] ). Importantly, a person “ ‘falsely makes' a written instrument when he [or she] makes ... [an] instrument, which purports to be an authentic creation of its ostensible maker ..., but which is not such either because the ostensible maker ... is fictitious or because, if real, he [or she] did not authorize the making ......
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People v. Zeller
...?122 A.D.3d 1081996 N.Y.S.2d 7802014 N.Y. Slip Op. 08068The PEOPLE of the State of New York, Appellant,v.Bobbie Jo ZELLER, Respondent.Supreme Court, Appellate Division, Third Department, New York.Nov. 20, Affirmed. Brian D. Pilatzke, Canton, for appellant.Nicole Duve, Special Prosecutor, Og......