People v Watts (
| People v Watts |
| November 20, 2018 |
| Fahey, J. |
| Court of Appeals |
| Publishеd by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| As corrected through Wednesday, February 13, 2019 |
[*1]
| The People of the State of New York, Respondent, v Rodney Watts, Appellant. |
Argued October 17, 2018; decided November 20, 2018
People v Watts,
An event ticket, such as a concert or sports event ticket, affects a legal right, interest, obligation, or status within the meaning of Penal Law § 170.10 (1). This means that a defendant may be prosеcuted under Penal Law § 170.25 for possession of counterfeit event tickets.
Defendant Rodney Watts, accused of selling counterfeit concert tickets, was charged by indictment with multiple counts of criminal possession of a forged instrument in the sеcond degree (Penal Law § 170.25). A person is guilty of that crime "when, with knowledge that it is forged and with intent to defraud, deceive or injure another, [the person] utters or possesses any forged instrument of a kind specified in [Penal Law] section 170.10" (Penal Law § 170.25). Penal Law § 170.10, the second-degree forgery statute, specifies, as one type of forged instrument, "a written instrument which is or purports to be, or which is calculated to become or to represent if completed . . . [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" (Penal Law § 170.10 [1] [emphasis added]). We refer to the emphasized words as the statute's catchall clause.
Defendant moved to dismiss the indictment, noting that each count contained a "to wit" phrase charging him with possessing a forged instrument that purported to be "a ticket to a . . . concert." He contended that a counterfeit concert ticket falls outside the ambit of the second-degree forgery statute (and, therefore, the second-degree criminal possession of a forged instrument statute), on the ground that a сoncert ticket does not "affect a legal right, interest, obligation or status." Defendant also argued that the catchall clause must be read to contemplate only documents of [*2]the same character as a "deed, will, codicil, contract, assignment, commercial instrument, [or] credit card" (Penal Law § 170.10 [1]), and insisted that concert tickets are not of this nature.
Supreme Court denied defendant's motion, reasoning that a concert ticket does "affect a legal right, interest, obligation or status," within the meaning of the statute, because it "grants {**
Defendant was subsequently arrested in possession of counterfeit sports event tickets. He was again charged by indictment and his motion to dismiss this indictment was also denied. Defendant ultimately pleaded guilty to two counts of criminal possession of a forged instrument in the second degree, in satisfaction of the indictments, resulting in two judgments of conviction and sentence.
On appeal from the judgments, defendant argued that the indictments are jurisdictionаlly defective for the same reason urged in his motions to dismiss. The Appellate Division rejected defendant's contention, holding that counterfeit event tickets are written instruments that purport to "affect a legal right, interest, obligation or status" undеr Penal Law § 170.10 (1) (
Defendant's argument, a jurisdictional challenge to the indictments against him, amounts to the claim that the otherwise valid statement of the elements of the crime in еach count is negated by the specific allegation in the "to wit" phrase that the forged instrument purported to be an event ticket. He insists, in effect, that counterfeit event tickets could never fall within the ambit of the second-degree fоrgery statute. Defendant's rationale is that event tickets, the instruments that defendant's counterfeit documents purported to be, are merely revocable licenses and do not "affect a legal right, interest, obligation or status."
Defendant's рremise that event tickets are revocable licenses is true. The case law saying as much is venerable. The purchase of an event admission ticket gives the holder "a revocable license . . . to enter the building in which [the event is held], and to attend the performance" (People ex rel. Burnham v Flynn,
It does not follow, however, that an event ticket does not affect a legal right, i.e., "right created or recognized by law" (Black's Law Dictionary [10th ed 2014], legal right), or status,{**
Furthermore, as defendant concedes, in certain circumstances, a ticket holder can recover the price of an event ticket in an action for breach of contract. This follows from the principle that the purchase of an event ticket "ma[kes] a contract" that "binds the person of the maker" so that the holder of a ticket who is wrongly ejected has the "right . . . to sue upon the contract for the breach" (Marrone v Washington Jockey Club,
Indeed, a license, even a revocable one, generally has considerable legal significance in that it gives the holder permission to do what would otherwise be a crime. It "grants the licensee а revocable . . . authority to do a particular act or series of acts upon another's land, which would amount to a trespass without such permission" (Ark Bryant Park Corp. v Bryant Park Restoration Corp.,
Of course, an event ticket or other revocable license does not give the holder an interest in real property (see Marrone,
Defendant also argues that the forgery statute must be interpreted by means of the principle of ejusdem generis, the "[c]anon of construction holding that when a general word or phrase follows a list of specifics, the general wоrd or phrase will be interpreted to include only items of the same class as those listed" (Black's Law Dictionary [10th ed 2014], ejusdem generis; see also McKinney's Cons Laws of NY, Book 1, Statutes § 239 [b] [stating that the rule will not be applied if it would contradict the evident intent of the legislature]). We assume, without deciding, that ejusdem generis applies here. In other words, we assume that the terms "deed, will, codicil, contract, assignment, commercial instrument, credit card" (Penal Law § 170.10 [1]) denote concepts of a single kind or category, and that application of ejusdem generis would not contradict the legislature's clear intent. The catchall clause beginning with the words "other instrument" would then be interpreted to include only items of the same nature as "deed, will, codicil, contract, assignment, commercial instrument, credit card" (Penal Law § 170.10 [1]). Defendant suggests that the common factor is that the items are formal instruments "capable of conveying proprietary or monetary interests," the value of which is not "derived solely from physical possession оf the actual instrument." He insists that, by contrast, an event ticket can generally be freely transferred from one person to the next, so that whoever lawfully possesses the ticket last is the person who receives the privilege.
A single examрle refutes defendant's theory. A bearer instrument, such as a blank traveler's check or a personal check made out to "cash," may be "negotiated simply by delivering the instrument to a transferee" (Black's Law Dictionary [10th ed 2014], bearer paper), just as an event ticket can be freely transferred from one person to the next. Its value is derived from physical possession. Yet a bearer instrument is a commercial instrument and hence part of the Penal Law § 170.10{**
In rejecting defendаnt's interpretation, we note that the Appellate Division Departments that have addressed this issue have generally interpreted the catchall clause broadly, upholding its application to such disparate documents as a gift сard (see People v Prince,
Finally, to the extent that defendant suggests that event tickets are not essential to the sustained functioning of New York's commercial and economic system and that it would be anomalous for the legislature to punish their counterfeiting as a felony, we disagree. The commercial significance of concert and sports event tickets in New York cannot be minimized. The state's cultural and sporting institutions play a very significant{**
We have considered defendant's remaining contentions and conclude that they lack merit. We have no need to consider the People's remaining contentions.
Accordingly, the order of the Appellate Division should be affirmed.
Chief Judge DiFiore and Judges Rivera, Stein, Garcia, Wilson and Feinman concur.
Order affirmed.