| People v Morehouse |
| 2013 NY Slip Op 05930 [109 AD3d 1022] |
| September 19, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v ScottMorehouse, Appellant. |
—[*1] Kathleen B. Hogan, District Attorney, Lake George (Emilee B. Davenport ofcounsel), for respondent.
Garry, J. Appeal from a judgment of the County Court of Warren County (Hall Jr.,J.), rendered September 28, 2011, convicting defendant upon his plea of guilty of thecrime of forgery in the second degree.
Defendant pleaded guilty to forgery in the second degree in full satisfaction of aneight-count indictment and waived his right to appeal. He was thereafter sentenced to aprison term of 2 to 4 years. Defendant appeals.
Although defendant waived his right to appeal and did not preserve his challenge tothe voluntariness of his plea by moving to withdraw his plea or vacate the judgment ofconviction, the narrow exception to the preservation rule is triggered because he made astatement during the allocution that cast doubt upon his guilt (see People vLopez, 71 NY2d 662, 666 [1988]; compare People v Johnson, 54 AD3d 1133, 1133 [2008]).During the allocution, defendant admitted to purchasing several items at various storesusing a credit card that did not belong to him. When asked whether he had signed thecredit card receipts using the name of the person to whom the card had been issued,defendant informed County Court that he did not know whose name was on the card andthat he had signed the receipts in his own name.
"A person is guilty of forgery in the second degree when, with intent to defraud,deceive [*2]or injure another, he [or she] falsely makes,completes or alters a written instrument which is or purports to be, or which is calculatedto become or to represent if completed: [a] . . . credit card . . .or other [such] instrument" (Penal Law § 170.10 [1]). "A person 'falsely makes' awritten instrument when he [or she] makes or draws a complete written instrument. . . which purports to be an authentic creation of its ostensible maker ordrawer, but which is not such . . . because the ostensible maker or drawer. . . did not authorize the making or drawing thereof" (Penal Law §170.00 [4]; see People vCunningham, 2 NY3d 593, 596-597 [2004]). However, there is no forgery whenthe ostensible maker and the actual maker are the same person (see People vCunningham, 2 NY3d at 597). Here, defendant's signing of his own name to thecredit card receipts would render him both the actual and ostensible maker of theinstrument, and the making of the instrument would not constitute a forgery (seeid.; People v Levitan, 49 NY2d 87, 90 [1980]). Accordingly, defendant'sstatement that he signed his own name to the receipts implicated the voluntariness of hisguilty plea to forgery in the second degree, requiring further inquiry from County Court.As the court failed to conduct such an inquiry, defendant's plea must be vacated and thematter remitted to County Court.
Rose, J.P., Lahtinen and Spain, JJ., concur. Ordered that the judgment is reversed, onthe law, plea vacated and matter remitted to the County Court of Warren County forfurther proceedings not inconsistent with this Court's decision.