People v. Rosado

ELLEN M. COIN, J. Defendant is charged with criminal possession of a forged instrument in the third degree (in violation of Penal Law § 170.20) and forgery in the third degree (in violation of Penal Law § 170.05). By omnibus motion he moves, inter alia, for an order dismissing the charges as facially insufficient. An information is facially sufficient if it contains facts of an evidentiary character tending to support the charges. (CPL 100.15 [3]; People v Dumas, 68 NY2d 729 [1986].) Furthermore, the information must contain nonhearsay allegations which establish, if true, every element of the offense charged and defendant's commission thereof. (CPL 100.40 [1] [b], [c].) An information which fails to satisfy these requirements is fatally defective. (People v Alejandro, 70 NY2d 133, 139 [1987].) The complaint alleges that the deponent police officer "observed the defendant displaying on the windshield of defendant's vehicle" a forged New York State Department of Motor Vehicles Safety/Emission inspection certificate. The complaint alleges as the officer's bases for determining that the certificate was forged (1) that the expiration date had been changed from March 10, 2002 to August 10, 2002, (2) that the make of the vehicle had been changed to Mazda, (3) that there were erasure marks in the altered portions of the certificate, and (4) that the new information had been written on the certificate in pencil, instead of computer-generated print. Although defendant moves to dismiss the complaint for facial insufficiency, his moving papers fail to specify any grounds for the motion. However, facial sufficiency is a jurisdictional requirement. (People v Case, 42 NY2d 98, 99 [1977].) Thus, where the court detects reasons for facial insufficiency, it may dismiss the action for those reasons, despite the fact that the defendant did not raise those issues in his motion papers. (People v Lugo, NYLJ, Dec. 14, 1998, at 30, col 5 [Crim Ct, Bronx County].) Upon defendant's motion and its own review of the information, the court finds the complaint facially insufficient as to both charges.

A person is guilty of criminal possession of a forged instrument in the third degree when, with knowledge that it is forged and with intent to defraud, deceive or injure another, he utters or possesses a forged instrument. (Penal Law § 170.20.) The instant complaint fails to adequately allege several of these elements. The first such deficiency is its failure to allege facts to demonstrate that defendant possessed the forged instrument. The term "possess" means "to have physical possession or otherwise to exercise dominion or control over tangible property." (Penal Law § 10.00 [8].) The term includes actual or constructive possession.^[1] (People v Torres, 68 NY2d 677 [1986]; People v Sierra, 45 NY2d 56, 60 [1978]; People v Fernandez, 270 AD2d 91 [1st Dept], lv denied 95 NY2d 834 [2000].) to establish this element of the crime, the charge of criminal possession of a forged instrument in the third degree is facially insufficient. (People v Singh, NYLJ, May 11, 1999, at 28, col 1 [Crim Ct, NY County]; People v McCabe, 157 Misc 2d 373 [Crim Ct, Kings County 1993]; cf. People v Fletcher, 29 AD2d 838 [4th Dept 1968] [reversing conviction in the absence of proof from which it might be inferred that defendant knew that a doctor's prescription was forged].) Accordingly, this charge is dismissed.

A person is guilty of forgery in the third degree when, with intent to defraud, deceive or injure another, he falsely makes, completes or alters a written instrument. (Penal Law § 170.05.) The essence of the crime is the execution of an instrument which is not authentic. (People v Adkins, 236 AD2d 850 [4th Dept], lv denied 90 NY2d 854 [1997].) The complaint fails to allege facts to show that defendant executed the alterations on the inspection certificate. Therefore, this charge is dismissed for facial insufficiency. (People v Pena, NYLJ, Apr. 14, 1997, at 29, col 6 [Crim Ct, Bronx County].) The People have leave to refile a timely, facially sufficient information. (People v Nuccio, 78 NY2d 102 [1991].) In light of the dismissal of both charges, defendant's remaining motions are rendered moot. [1] To demonstrate constructive possession, "the People must show that the defendant exercised `dominion and control' over the property by a sufficient level of control over the area in which the contraband is found or over the person from whom the contraband is seized." (People v Manini, 79 NY2d 561, 573 [1992].)