96 A.D.2d 1083 | N.Y. App. Div. | 1983
Lead Opinion
— Appeal by defendant from a judgment of the Supreme Court, Richmond County (Di Vernieri, J.), rendered April 20,1980, convicting him of grand larceny in the second degree and forgery in the second degree, upon a jury verdict, and imposing sentence. Judgment modified, on the law, by reversing the conviction of forgery in the second degree, vacating the sentence imposed thereon, and dismissing that count of the indictment. As so modified, judgment affirmed. Defendant was arrested on June 7, 1979 on a parole violation warrant by his parole officer while defendant was in an automobile that had been rented approximately six months earlier and had not been returned to the rental agency. A warrantless search of defendant’s residence by his parole officer, a police officer and several other parole officers uncovered a lease agreement for the automobile in the name of “Craig Pummill” and a driver’s license in the same name. Following his arrest, defendant was identified by the car leasing agent as the man who said he was “Craig Pummill”. Defendant was indicted and convicted, upon a jury trial, of grand larceny in the second degree and forgery in the second degree. We reverse the conviction for forgery and dismiss that count of the indictment on the ground that the proof was legally insufficient to establish the forgery (see CPL 470.20, subd 2). As here relevant, “fa] person is guilty of forgery in the second degree when, with intent to defraud, deceive or injure another, he falsely makes, completes or alters a written instrument which is * * * [a] contract” (Penal Law, § 170.10). “Falsely makes” is in turn defined as follows (Penal Law, § 170.00, subd 4): “A person ‘falsely makes’ a written instrument when he makes or draws a complete written instrument in its entirety, or an incomplete written instrument, which purports to be an authentic creation or its ostensible maker or drawer, but which is not such either because the ostensible maker or drawer is fictitious or because, if real, he did not authorize the making or drawing thereof.” (Emphasis supplied.) As defendant correctly argues, since there was no evidence that “Craig Pummill” existed other than as defendant, there could be no showing that defendant’s use of the name “Pummill” was unauthorized. Hence, the People had to prove that the “ostensible maker or drawer” of the rental agreement was “fictitious”. A “fictitious” maker or drawer under the intendment of the statute and under well-settled law, however, means more than someone who merely uses an assumed name (see People v Briggins, 50 NY2d 302). “Fictitious” signifies a maker or drawer of an instrument who represents that the name he uses is that of someone other than its creator, i.e., a person wholly separate and apart from himself, and that the fiction is intended to “defraud, deceive or injure another” (Penal Law, § 170.10). The People concede that they did not even attempt to prove that “Craig Pummill” was a fictitious person. The People maintain, however, that the use of the name by defendant was calculated to deceive or to defraud, implying thereby that the crime of forgery was made out. There was, however, no deception or
Dissenting Opinion
dissents in part and concurs in part, with the following memorandum, with which Boyers, J., concurs. Contrary to the decision of the majority, I conclude that there was sufficient evidence in the record to support the jury’s verdict of guilty on the charge of forgery in the second degree. It was established at trial that defendant’s true name is Franklin D. Johnson. He was arrested while sitting in a rented automobile outside an apartment building, and the officers found that he had on his person a key to one of the apartments. In that apartment the officers found a Social Security identification card, a photographic identification card issued by the College of Staten Island, and an examination paper from the college, all in his true name. They also found among these papers a motor vehicle operator’s license and an automobile lease agreement, both of which were in the name of a Craig Pummill. The lease agreement recited an address for Pummill that differed from that of the searched apartment. Defendant was thereafter identified by the automobile leasing agent as the Craig Pummill who had leased the vehicle. The agent testified that before possession of the vehicle was transferred to defendant, he had defendant complete the lease agreement, sign it, and tender his operator’s license in order that the agent could record its number and check the date of birth against defendant’s apparent age. When the vehicle was not returned at the end of the one-week term, the agent attempted to contact defendant through the telephone number he had written on the agreement. The agent instead spoke with defendant’s girlfriend, who then delivered another two or three weeks’ rent, explaining that defendant was away on business and would surrender the vehicle on his return. Several months passed without receipt of further rent or return of the vehicle. In the interim, the agent unsuccessfully attempted to repossess the vehicle at the address listed by defendant on the agreement. The vehicle was not returned until defendant’s arrest, six months after he had entered the lease agreement. Without exception being taken by defense counsel, the trial court charged the jury with subdivision 4 of section 170.00 of the Penal Law, which defines the concept of falsely making an instrument insofar as it relates to the crime of forgery: “According to the law, a person falsely makes a written instrument when he makes or draws a complete written instrument in its entirety, or an incomplete written instrument, which purports to be an authentic creation of its ostensible maker or drawer, but which is not such either because the ostensible maker or drawer is fictitious or because, if he did not authorize the making or drawing thereof.” (Emphasis supplied.) Although inelegantly phrased without elaboration, this instruction was accurate insofar as the evidence adduced by the People had been limited to proving that “Craig Pummill” was a fictitious rather than a real person who had not authorized the making of the lease agreement. On appeal the People claim that they did not, and were not required to, prove that “Craig Pummill” was a fictitious person. They argue that the “false making” element of the crime of forgery was met merely by their circumstantial proof of defendant’s intent to defraud the leasing agent by using the assumed name of “Craig Pummill”. This is error. To convict defendant of forgery, the jury must have evidence not only of a particular goal — i.e., to defraud the victim — but of a