The defendants have been indicted for the crimes of forgery and grand larceny. The gist of the charge against the defendants is that they fraudulently obtained rent monies from various tenants of a real estate firm.
According to the a New York Criminal Attorney, the alleged thefts were effectuated by means of the utterance of false instruments purporting to emanate from the firm, instructing tenants to send their rent payments to a fictitious auditing firm, which in reality was a front for the defendants.
The first count of the indictment, charging the defendants with forgery in the second degree, accuses them of forging a written instrument with intent to defraud others. The second count, also charging the defendants with forgery in the second degree, alleges they uttered this instrument with knowledge that it had been forged. The remainder of this fourteen count indictment accuses each defendant of twelve, separate crimes of grand larceny in the second degree.
The defendants advance the several contentions in support of their motions to inspect the Grand Jury minutes and to dismiss the indictment.
The defendants argue that the alleged forgery fails to come within any of the definitions set forth in Section 880 of the Penal Law. That section defines the term ‘forge’ in this manner: ‘The expressions ‘forge,’ ‘forged’ and ‘forging,’ as used in this article, include false making, counterfeiting and the alteration, erasure, or obliteration of a genuine instrument, in whole or in part, the false making or counterfeiting of the signature, of a party or witness, and the placing or connecting together with intent to defraud different parts of several genuine instruments.’
The defendants contend that the first part of the section encompasses the false making and counterfeiting of a genuine instrument, or the alteration, erasure or obliteration of a genuine instrument. It is urged that where there is no instrument in existence capable of being counterfeited, a false paper, however fictitious, is not a forgery under the first part of Section 880. Consequently, as the subject of the alleged forgery in this case is a pure fabrication and there is no existing genuine instrument of which it is an imitation, the defendants conclude that it does not come within the meaning of forgery as described in the opening portion of Section 880..
The defendants further argue that Section 880 also includes in the definitions the false making or counterfeiting of a signature. However, as the subject of the alleged forgery lacks a signature or a purported signature, they contend that it fails to fall within that definition. Moreover, the defendants claim that the instrument in question does not fall within any of the other definitions set forth in Section 880 of the Penal Law, and therefore is not a forgery.
The People sharply contradict the position taken by the defendants. The District Attorney contends that it is inaccurate to assert that there must be a genuine instrument in existence, capable of being counterfeited or imitated, before a false paper can become a forgery; that the term ‘genuine instrument’ in the first part of Section 880 applies only to the clause ‘alteration, erasure, or obliteration’, not to the words ‘false making or counterfeiting’. In sum, The People take the position that ‘forging’ includes any one of the following acts: false making, counterfeiting, and either the alteration, erasure or obliteration of a genuine instrument. As the instrument in question was falsely made, the prosecution concludes that it falls within Section 880.
The question raised then is whether the legislature intended any fictitious instruments other than those bearing falsely made or counterfeited signatures to come within the crime of forgery. If Section 880 is read as the defendants interpret that section, then it must be concluded that in order for there to be a forgery there would have to be a genuine instrument in existence in every instance except one. The exception would occur when a purely fictitious document had a falsely made or counterfeited signature, since the statute provides in effect that the false making or counterfeiting of a signature may result in forgery even though there is no existing genuine instrument. Thus, according to the view taken by the defendants, the only kind of fictitious instruments the legislature intended to be the subjects of forgery would be those bearing false signatures.
In essence, it is contended that the term ‘false making’ was not intended to be read and considered in conjunction with the phrase ‘genuine instrument’; that the term ‘false making’ has meaning in and of itself and was intended to be read and considered by itself. Following this line of reasoning, the term ‘forging’ as defined in Section 880 would include, among other things, ‘false making’; and as the expression ‘false making’ encompasses fictitious instruments other than those with a falsely made or counterfeited signature, one would have to conclude that the making of such false instruments might result in the crime of forgery under the Penal Law.
The determination of whether the legislature intended any fictitious instruments other than those bearing falsely made or counterfeited signatures to come within the crime of forgery depends primarily upon the legislative and case history of the law of forgery in this state. At common law a number of fictitiously made documents other than those with false signatures came within the bounds of forgery.
There can be no doubt that the legislature intended the crime of forgery in this state to include, at the very minimum, those cases which would have constituted the crime of forgery at common law, and consequently, it must have intended that certain fictitiously made instruments other than those bearing false signatures should fall within the statutory crime of forgery. Going back to the genesis of forgery legislation in this state, we find that ‘an act to prevent forgery and counterfeiting’ was passed in 1801. This act provided that the false making, altering, or counterfeiting of many enumerated instruments would constitute a felony. In 1813 the legislature expanded the law of forgery in this state by enacting legislation which not only included the provisions of the act of 1801, but additional provisions bringing other activities within the crime of forgery. The law of 1813 was superseded by the Revised Statutes of 1830 which expanded even further the scope of the crime of forgery..
A fictitiously made instruments other than those bearing falsely made or counterfeited signatures could have been the subjects of forgery at common law, and as the legislature intended at the time it adopted the definition of the term ‘forge’ to include within the statutory crime of forgery all of those situations which would have been forgery at common law, it must be concluded that the legislature intended certain fictitious instruments other than those with false signatures to be the subjects of forgery. In the light of this, the term ‘false making’, as it appears in the first part of Section 880, is construed as being used in the disjunctive sense; for only in that way can the intention of the legislature be effectuated. As the expression ‘false making’ includes a fictitiously made instrument which falsely purports to be the writing of another, and as the instrument involved in the present case fits that definition, it follows that this instrument falls within Section 880 of the Penal Law.
Moreover, a review of the cases on forgery in this state fails to reveal any decisions which would require this court to alter its conclusions. On the contrary, cases can be found which lend support to the argument that statutory forgery in New York is broader and more comprehensive than forgery at common law, thus, giving added strength to the rationale espoused by the court.
Furthermore, in the present case, even if the subject of the alleged forgery had failed to come within Section 880 of the Penal Law as a falsely made instrument, it would have nonetheless fallen within the scope of that section as an instrument bearing a falsely made signature. Apparently the words naming the company were written on the document with the fraudulent intent of giving authenticity to that instrument. These words appear to make the instrument the act of that company, which it is not. The name of this company gave authenticity to the instrument which it would not have had without it. In the opinion of this court, such action amounts to the false making of a signature. The fact that the words were printed or typed, instead of handwritten, and appear at the head of the instrument instead of the foot, where a signature is usually affixed, does not prevent those words from being considered a signature.
Reading those sections together, it seems clear that when the name of a company is printed on an instrument with the intent of giving authenticity to that instrument, that name is considered a signature under the law. Therefore, when the name of a company is printed upon a document for such a purpose without that company’s knowledge or consent, the process becomes the false making of a signature. As the subject of the alleged forgery in the instant case had a falsely made signature which wrongfully represented that Cross & Brown Company was a party to the transaction in question, it would seem to come within the purview of Section 880 relating to a falsely made signature.
The document involved here falls directly under Section 887(2), paragraph 5. It is an instrument which purports to be the act of the firm, and by which the pecuniary obligations and property of others might be affected. The pecuniary obligation involved here is the obligation on the part of the tenants to pay their rent to the firm. This instrument was designed to inveigle these tenants to pay their rent to someone other than the party rightfully entitled to it. Clearly, the person or persons responsible for this false instrument sought to work a transfer of property from the tenants to themselves. Consequently, any tenant who responded to this false instrument would be affected and injured in his property, in that, after sending his rent to the wrongdoers, he would still remain obligated to the firm to pay the rent for that month.
The second count of the indictment charges the defendants with the crime of uttering a forged instrument. There was ample evidence before the Grand Jury of the uttering of the instrument in question. Therefore, it becomes manifest that the validity of the second count depends solely upon that of the first. As the first count was found to be legally sufficient, the second must be found to be likewise, and consequently cannot be dismissed.
Whether there is sufficient evidence in this case to constitute the crime of grand larceny is a question which the Court believed can best be determined by the trial judge after he hears the People’s evidence at trial. Leaving this decision to the trial judge, will neither wrongfully injure the defendants, nor deprive them of any right to which they are entitled. A review of the evidence presented to the Grand Jury clearly indicates that at least the crime of an attempt to commit the crime of grand larceny is spelled out. Consequently, if the trial judge should decide that the evidence presented on trial does not constitute the crime of grand larceny, he could still submit to the jury the question of whether the defendants were guilty of the crime of an attempt to commit the crime of grand larceny, without there being any change in the indictment as it reads at present. The reason for this is that upon an indictment for a crime consisting of different degrees, such as larceny, the jury may convict of an attempt to commit that crime. In view of the foregoing, then, the court will not dismiss counts three through fourteen of the indictment.
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