Under New York Law, issuing a bad check is a crime which is punishable by up to 90 days in jail. With that being said, New York prosecutors rarely (if ever) prosecute cases involving the issuance of bad checks.
What is a Bad Check under New York Law?
The New York charge of Issuing a Bad Check is codified in New York Penal Law Section 195.05. Under that section, the following is elements are required for this charge:
- Issuing or passing a check with knowledge that there aren’t sufficient funds to cover the check amount;
- Intending or believing at the time of issuing the check that payment will be refused upon the presentation of the check; AND
- Payment is actually refused upon the presentation of the check.
Three elements required for a bad check are:
- Issuing a check with knowledge that there are insufficient funds in the account;
- Intending that the bank will refuse payment on the check; AND
- The bank refusing to honor the check due to insufficient funds.
Importantly, Issuing a Bad Check charge can apply to both the person who issues the check, as well as the person who passes or pays with the bad check. However, this charge will only apply if all of the elements described above are met.
What Legal Presumptions Apply to Issuing a Bad Check?
Legal Presumptions that Apply to New York Issuing a Bad Check charge are listed in New York Penal Law Section 190.05. The following legal presumptions apply to New York Issuing a Bad Check Charge:
- When the issuer of the check has insufficient funds in the account, it is presumed that s/he knows about the insufficiency;
- It is presumed that the issuer or the passer of the check intended for the check to be dishonored when it was passed when:
- The drawer had no account with the drawee at the time of utterance, OR
- The drawer had insufficient funds with the drawee at the time of utterance, AND the check was presented to the drawee for payment not more than thirty days after the date of utterance, AND the issuer had insufficient funds with the bank.
- Insufficiency of the funds may be proved by introduction of notice of insufficiency or a statement from the issuing bank declaring insufficiency of the account.
What are Some Defenses to Issuing a Bad Check?
There are two affirmative defenses that apply to Issuing a Bad Check. These are codified in New York Penal Law Section 190.15. Specifically, they are:
- Making full satisfaction on a dishonored check within 10 days of the bank dishonoring the check;
- If defendant was acting as a representative of his employer, or of a superior employee and was merely executing orders.
If the Defendant is establishes either of the two affirmative defenses, then s/he cannot be prosecuted for Issuing a Bad Check in New York. In some situations, if the Defendant is able to demonstrate that either of the two affirmative defenses applies, this case may be resolved without an arrest.
What Do I Do If I Issued a Bad Check?
If you have issued a bad check, either intentionally or inadvertently, the first thing you should do is contact the individual or company you issued or passed the check to. As it is an affirmative defense to make good on the check within 10 days, every effort should be made to remedy the situation in that time period.
Although New York charges of Issuing a Bad Check are rarely prosecuted, you don’t want to be the exception. Thus, contacting the payee and making good on the dishonored check is an upmost priority. That will avoid a criminal case all together, if done promptly.
Sentencing and Penalties for Issuing a Bad Check
Issuing a Bad Check is a Class “B” misdemeanor. As such, this charge is punishable by up to 90 days jail. However, there are several other potential penalties for this charge. For example:
- Conditional Discharge (with conditions being imposed by the Court such as restitution or community service),
- Unconditional Discharge (no conditions being imposed by the Court at sentencing),
- Time Served (even if that’s just the time spent on arrest processing).
Importantly, if you have no prior criminal history, or a limited criminal history, this charge may result in a plea involving a non-criminal disposition such as a violation or an Adjournment in Contemplation of Dismissal (commonly abbreviated as “ACD.”)
Contact Top Rated New York Attorneys
If you or a loved one has been charged with issuing a bad check, you need Top Rated New York Criminal Defense Attorneys. Please call us at 212-729-9494 or contact us to schedule your consultation today.