Defending New York Forgery Charges

In New York, forgery and criminal possession of forged instruments are separate white-collar crimes that are frequently prosecuted by the District Attorney’s Offices across the state. In the simplest of terms, forgery is altering or making a false document with intent to deceive another. Criminal Possession of Forged Instrument, is the possession of forged instrument with knowledge that it is forged.

There are several degrees of New York forgery and New York Criminal Possession of Forged Instruments, ranging from Class “A” Misdemeanors to Class “C” Non-Violent Felonies. Specifically, these charges are:

New York Forgery Charges

Forgery in the Third Degree

Under New York Penal Law Section 170.05, a person is guilty of Forgery in the Third Degree when:

  1. With intent to defraud, deceive or injure another
  2. He falsely makes, completes or alters
  3. A written instrument

What is a Written Instrument Under New York Law?

The definition of what is a “Written Instrument” comes from New York Penal Law Section 170.00(1). A written instrument is defined as:

  1. Any instrument or article, including computer data or a computer program, containing written or printed matter or the equivalent thereof,
  2. Used for the purpose of reciting, embodying, conveying or recording information, OR
  3. Constituting a symbol or evidence of value, right, privilege or identification,
  4. Which is capable of being used to the advantage or disadvantage of some person.
Examples of New York Written Instruments

These are some examples of New York Written Instruments for the Purposes of New York forgery charges:

  • Money
  • Checks
  • Credit Cards
  • Wills
  • Contracts

As the definition of written instrument is very broad, many more documents are written instruments under New York law, than just those listed above.

Penalties and Sentencing for Forgery in the Third Degree

New York Forgery in the Third Degree is a Class “A” misdemeanor. As such, this charge is punishable by up to 1 year in prison or three years probation. However, in practice, New York Forgery charges can be punishable by a time served sentence, a conditional or unconditional discharge. Conditions of a conditional discharge on Forgery in the Third Degree charges can include:

  • Restitution
  • Fine
  • Community Service

A conviction for Forgery in the Third Degree will give you a criminal record. Although you will be able to apply to have the conviction sealed from your record under New York CPL 160.59, you have to wait ten (10) years from the date of your sentence to apply.

Forgery in the Second Degree

New York Forgery in the Second Degree is a more serious charge than New York Forgery in the Third Degree. That is because Forgery in the Second Degree contains additional aggravating elements.

Elements of Forgery in the Second Degree

Under New York Penal Law Section 170.10, a person is guilty of Forgery in the Second Degree when:

  1. With intent to defraud, deceive or injure another,
  2. S/he falsely makes, completes or alters
  3. A written instrument which is or purports to be, or which is calculated to become or to represent if completed any of the following:
    1. 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; OR
    2. A public record, or an instrument filed or required or authorized by law to be filed in or with a public office or public servant; OR
    3. A written instrument officially issued or created by a public office, public servant or governmental instrumentality; OR
    4. Part of an issue of tokens, public transportation transfers, certificates or other articles manufactured and designed for use as symbols of value usable in place of money for the purchase of property or services; OR
    5. A prescription of a duly licensed physician or other person authorized to issue the same for any drug or any instrument or device used in the taking or administering of drugs for which a prescription is required by law.

Examples of Forgery in the Second Degree

The following conduct would constitute Forgery in the Second Degree under New York Law:

  • Forging building permits for a house to deceive a buyer into believing that all work on the house was done with proper permits;
  • Altering a will of a deceased relative to get a larger share of the estate, while giving lawful heirs a smaller share;
  • Bending a Metrocard in a way that allows free swipes to get onto the subway;
  • Altering a physician’s hand-written prescription to get a larger number of pills.

Penalties and Sentencing for Forgery in the Second Degree

The charge of Forgery in the Second Degree is a Class D Non-Violent Felony. Therefore, this New York Forgery charge can be punishable by up to 2 1/3 to 7 years in prison. However, if there are mitigating circumstances either about the offense or the nature and characteristics of the defendant, a probationary sentence may be imposed.

Forgery in the First Degree

The most serious of New York Forgery charges is Forgery in the First Degree, which is a Class “C” non-violent felony. Forgery in the First Degree applies to (1) government issued documents – such as currency or stamps and (2) stocks or bonds, representing claims against companies.

Elements of Forgery in the First Degree

Under New York Penal Law, Section 170.15, Forgery in the First Degree has the following elements:

  1. Intent to defraud, deceive or injure another,
  2. Falsely making, completing or altering a written instrument which is or purports to be, or which is calculated to become or to represent if completed:
    1. Part of an issue of money, stamps, securities or other valuable instruments issued by a government or governmental instrumentality, OR
    2. Part of an issue of stock, bonds or other instruments representing interests in or claims against a corporate or other organization or its property.

Penalties and Sentencing for Forgery in the First Degree

New York Forgery in the First Degree is a Class “C” Non-Violent Felony. As such, this charge is punishable by up to 5 to 15 years in prison. However, a sentence of 1 year of imprisonment or more can be imposed.

Criminal Possession of Forged Instruments

In addition to forgery charges, it is also a separate crime to possess a forged instrument. This charge is called New York Criminal Possession of Forged Instruments. However, in order for you to be guilty of the New York Criminal Possession of Forged Instruments charge, you must KNOWINGLY possess a forged instrument. Your knowledge of the fact that the document is forged can be established by:

  1. Circumstantial evidence – such as evidence that would contribute to your knowledge of the document not being authentic;
  2. Your statements or a confession regarding the authenticity of the document;
  3. Legal Presumption under New York Penal Law 170.27, which applies to possession of fraudulent credit cards.

Criminal Possession of Forged Instruments in the Third Degree

Under Penal Law 170.20, a person is guilty of New York Criminal Possession of a Forged Instrument in the Third Degree, when:

  1. With knowledge that it is forged and with intent to defraud, deceive or injure another,
  2. Uttering or possessing a forged instrument.

What is a Forged Instrument for the Purposes of NY Criminal Possession of Forged Instrument Statute?

Under New York Law, a “forged instrument” means a written instrument which has been falsely made, completed or altered.

Penalties and Sentencing for Criminal Possession of a Forged Instrument in the Third Degree

New York Criminal Possession of a Forged Instrument in the Third Degree is a Class A Misdemeanor. As such, this particular charge is punishable by up to 1 year in prison or 3 years probation. However, charges of Criminal Possession of a Forged Instrument in the Third Degree are typically resolved without any jail time. Rather, the sentences of time served, conditional discharge or unconditional discharge are frequently imposed. You may be required to do some community service as part of your plea.

Criminal Possession of a Forged Instrument in the Second Degree

New York Criminal Possession of a Forged Instrument in the Second Degree is codified in New York Penal Law Section 170.25. Under New York law, a person is guilty of Criminal Possession of a Forged Instrument in the Second Degree, when:

  1. With knowledge that it is forged, AND
  2. With intent to defraud, deceive or injure another
  3. S/he utters or possesses any forged instrument specified in the Forgery in the Second Degree statute (Penal Law 170.10).
    • Forged instruments covered by New York Forgery in the Second Degree charge are: deeds, wills, codicils, contracts, commercial instruments, credit cards, public records, written instruments issued or created by a public office, tokens, prescriptions or any other instruments used in the taking or administration of prescription instruments.

Presumption Applicable to Criminal Possession of Forged Instruments in the Second Degree

The most difficult elements for the prosecutor to prove in Criminal Possession of Forged Instrument cases are: (1) knowledge of the document being fraudulent and (2) intent to defraud, deceive or injure another.

There is a legal presumption under New York Penal Law Section 170.27, which applies to Criminal Possession of Forged Instruments in the Second Degree. If you possess two or more forged instruments, each of which is either a credit card or a debit card, it is presumed that you have knowledge that they are forged and have the intent to defraud, deceive or injure another.

Forged Instrument Presumption Explained

Let’s say, you get pulled over for idling in a car for more than 3 minutes. As you go to pull out your license, two credit cards fall out of your pocket. Upon examination by the police officer, he determines that the credit cards are fake. You immediately request an attorney and refuse to make any statements. Even though there is absolutely no evidence regarding your knowledge that the credit cards are fake, or that you intended use them in a way that defrauded someone else, the prosecutor is able to establish those elements just based on the presumption alone.

When your case goes to the Grand Jury, the prosecutor won’t present any evidence regarding knowledge or intent to deceive another. But the prosecutor will read the presumption from Penal Law 170.27 when they charge the Grand Jury on the applicable law.

Penalties and Sentencing for Criminal Possession of Forged Instruments in the Second Degree

New York Criminal Possession of a Forged Instrument in the Second Degree is a Class “D” Non-Violent Felony. As such, this charge can be punishable by up to 2 1/3 to 7 years in prison. However, probation is also a possible sentence on New York Criminal Possession of a Forged Instrument in the Second Degree.

New York Criminal Possession of Forged Instrument in the First Degree

The most serious of New York Criminal Possession of Forged Instrument charges is Criminal Possession of a Forged Instrument in the First Degree Charge. The language of Criminal Possession of a Forged Instrument in the First Degree mirrors the statutory language of New York Criminal Possession of Forged Instrument in the Second Degree. However, the instrument possessed must be of the kind that is prohibited by New York Forgery in the First Degree Charge under New York Penal Law 170.15.

Elements of Criminal Possession of a Forged Instrument in the First Degree

Under Penal Law Section 170.30, a person is guilty of New York Criminal Possession of a Forged Instrument in the First Degree when:

  1. With knowledge that it is forged AND
  2. With intent to defraud, deceive or injure another,
  3. Uttering or possessing any forged instrument of a kind specified in New York Forgery in the First Degree charge.
    • This charge applies to money, currency, stamps, securities or other valuable instruments issued by a government or governmental instrumentality, stocks, bonds or other instruments representing interests in companies.

Penalties and Sentencing for Criminal Possession of Forged Instruments in the First Degree

Criminal Possession of a Forged Instrument in the First Degree is a Class “C” Non-Violent Felony. As such, this charge is punishable by up to 5 to 15 years in prison. However, probation is a possible sentence on this New York Criminal Possession of a Forged Instrument in the First Degree charge.

Contact Top Rated New York Forgery Attorneys

If you or a loved one are under investigation or have been arrested for Forgery or New York Criminal Possession of a Forged Instrument, you need top rated representation. We have handled numerous New York forgery and Criminal Possession of Forged Instruments charges, both as former prosecutors and as criminal defense attorneys. Contact us today to schedule a consultation regarding your case.