| People v Zeller |
| 2014 NY Slip Op 08068 [122 AD3d 1081] |
| November 20, 2014 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Appellant, vBobbie Jo Zeller, Respondent. |
Brian D. Pilatzke, Canton, for appellant.
Nicole Duve, Special Prosecutor, Ogdensburg, for respondent.
Devine, J. Appeals (1) from an order of the County Court of St. Lawrence County(Richards, J.), entered September 24, 2013, which, upon reargument, partially granteddefendant's motion to dismiss the indictment, and (2) from an order of said court, enteredNovember 4, 2013, which denied the People's motion to reargue.
Defendant was charged by indictment with grand larceny in the second degree (twocounts), criminal possession of a forged instrument in the second degree (three counts),grand larceny in the third degree (two counts) and scheme to defraud in the first degreeas a result of her giving fake checks under the guise of repaying debts to the victims whohad loaned her money. Defendant moved to dismiss the indictment, challenging, amongother things, the legal sufficiency of the three counts of criminal possession of a forgedinstrument in the second degree on the ground that the checks created by defendant didnot constitute forged instruments. County Court denied the motion. Pursuant todefendant's motion to reargue, the Court partially granted the motion and dismissed thosethree counts. Thereafter, the People moved for leave to reargue, which motion wasdenied by County Court. The People now appeal from both orders.[FN*]
The People maintain that County Court erred in dismissing the three counts at issuebecause the checks created by defendant are forged instruments within the meaning ofPenal Law § 170.25. Under that section, "[a] person is guilty of criminalpossession of a forged instrument in the second degree when, with knowledge that it isforged and with intent to defraud, deceive or injure another, he [or she] utters orpossesses any forged instrument of a kind" as described under Penal Law§ 170.10 (Penal Law § 170.25). A forged instrument isdefined as a "written instrument which has been falsely made, completed or altered"(Penal Law § 170.00 [7]). Importantly, a person " 'falsely makes' awritten instrument when he [or she] makes . . . [an] instrument, whichpurports to be an authentic creation of its ostensible maker . . ., but which isnot such either because the ostensible maker . . . is fictitious or because, ifreal, he [or she] did not authorize the making . . . thereof" (People v Asai, 66 AD3d1138, 1139 [2009], quoting Penal Law § 170.00 [4]). Determiningwhether a document is forged "does not depend so much on whether it contains afalsehood, but on whether, on its face, it misrepresents its authenticity" (People vBriggins, 50 NY2d 302, 306 [1980]).
Defendant did not attempt to portray herself as someone other than herself inexecuting the checks (see People v Asaro, 94 NY2d 792, 793 [1999]; Peoplev Asai, 66 AD3d at 1139; People v Johnson, 96 AD2d 1083, 1083 [1983],affd 63 NY2d 888 [1984]). Nor does this case present a situation in whichdefendant made out the checks without attaining the requisite authorization from anotherindividual (see People vIppolito, 20 NY3d 615, 624 [2013]; People v Cannarozzo, 62 AD2d503, 504-505 [1978], affd 48 NY2d 687 [1979]). Thus, the checks at issue in thismatter "were not falsely made," as provided in the forgery statute (People vLevitan, 49 NY2d 87, 92 [1980]; see People v Cunningham, 2 NY3d 593, 596-597 [2004]).Defendant's fabrication of the checks bearing her name and address, as the purportedbank account holder, makes her the ostensible maker (see People v Briggins, 50NY2d at 307) and the placement of defendant's signature on the checks rendersdefendant the actual maker of the checks. Where, as here, the ostensible maker and theactual maker of the written instrument are the same person, the alleged crime of criminalpossession of a forged instrument in the second degree must be dismissed (see Peoplev Cunningham, 2 NY3d at 597-599; People v Levitan, 49 NY2d at 89-90; People v Morehouse, 109AD3d 1022, 1023 [2013]; People v Asai, 66 AD3d at 1139-1140).
Stein, J.P., Garry, Rose and Lynch, JJ., concur. Ordered that the order enteredSeptember 24, 2013 is affirmed. Ordered that the appeal from the order enteredNovember 4, 2013 is dismissed.
Footnote *:Inasmuch as no appeallies from an order denying a motion to reargue, the appeal from that order is dismissed(see People v D'Amico, 148 AD2d 982, 983 [1989]; William C. Donnino, SuppPractice Commentary, McKinney's Cons Laws of NY, Book 11A, CPL 450.20, 2014Cummulative Pocket Part at 84 ["To be appealable, the order must be found to be one ofthe orders specified in (CPL 450.20)"]).