49 N.Y.2d 87 | NY | 1980
OPINION OF THE COURT
Defendants appeal from an order of the Appellate Division which affirmed their convictions of several counts of forgery in the second degree. The issue presented on this appeal is whether the actions described below, which defendants admittedly engaged in, comprise the crime of forgery in the second degree. We hold that they do not.
Defendant Molly Levitan signed three documents purporting to be deeds transferring title of certain real property in Suffolk County to entities controlled by her codefendants. She signed her own name to each of the deeds, and no pretense was ever made that the signatory was anyone other than defendant Molly Levitan. She signed one of the deeds as an individual grantor, and the other two as an officer of the corporate grantors. No claim is made that she was not authorized to do so by the corporate grantors. Unfortunately, neither Molly Levitan nor the corporate grantors held title to the realty purportedly transferred by the deeds. The true owners of the property were and remain unknown, and the land was not on the tax assessment rolls of the town in which it is located. The defendants intended to and did record the deeds and thereby have the land placed upon the assessment rolls under the record ownership of entities controlled by them. It was defendants’ intent to cause these entities to then default in payment of taxes on the land, so that defendants could purchase the land at a tax sale. The question on this appeal is whether Molly Levitan "forged” the three deeds. For the reasons discussed below, we conclude that she did not. Although defendants may well have committed other crimes, their convictions for forgery in the second degree may not stand.
The crime of forgery in the second degree is defined in section 170.10 of the Penal Law which, insofar as is pertinent, provides as follows: "A 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 or purports to be, or which is calculated
In essence, the crime of forgery involves the making, altering, or completing of an instrument by someone other than the ostensible maker or drawer or an agent of the ostensible maker or drawer. While it is true that in certain rare instances one may commit a forgery by signing one’s own name, this is so only where the signing is done in such a way as to deceive others into believing that the signer is in fact some third party (see People’s Trust Co. v Smith, 215 NY 488; International Union Bank v National Sur. Co., 245 NY 368). This was the rule under prior law, and it remains the law today. While the Legislature certainly could change this rule, since it may define a crime however it wishes absent some constitutional infirmity, examination of the present statutes indicates quite persuasively that the Legislature has not chosen to modify this particular aspect of the traditional definition of forgery.
As noted above, forgery in the second degree requires that there have been a false making, a false altering, or a false completing of an instrument (see Penal Law, § 170.10); and these terms are themselves specifically defined in section 170.00 of the Penal Law. Thus, "[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 real, he did not authorize the making or drawing thereof’ (Penal Law, § 170.00, subd 4). To come within the
Applying these principles to this case, it is evident that whatever crime may have been committed by thése defendants, it was not forgery. The deeds were in all cases signed by Molly Levitan using her own name, and this is not a case in which one may commit a forgery by signing one’s own name, since here there was no pretense that Molly Levitan was anyone other than herself. The People seek to avoid this result by arguing that the ostensible drawer of these deeds should be deemed to be not Molly Levitan, but the unknown true owner of the land. Were we to agree that the ostensible drawer was the true owner of the property, then it would follow that Molly Levitan falsely made these deeds since, as the actual drawer of the deeds, she admittedly did so without authorization from the true owner of the property. However, and it is all too evident, we cannot agree that the absent true owner should be considered the ostensible drawer of the deeds. Rather, Molly Levitan is both the actual drawer and the ostensible drawer, and thus did not forge the deeds.
The People’s argument is based on the fact that each deed contains a provision stating that the named grantor had title to the property. Hence, according to the People, the ostensible drawer of the deed should be deemed to be the true owner of the property rather than the person whose name appears
Accordingly, the order affirming defendants’ convictions should be reversed, and the indictments should be dismissed.
Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Fuchsberg and Meyer concur.
Order reversed, etc.
