A New York Criminal Lawyer said that the defendant was initially charged with two counts of Unlawful Receipt of Fare for Providing Access to Transit Authority Facilities, a violation, one count of Criminal Mischief in the Fourth Degree, one count of Criminal Tampering in the Second Degree, two counts of Petit larceny, two counts of Theft of Services, thirteen counts of Criminal Possession of a Forged Instrument in the Third Degree, and two counts of Obstructing Governmental Administration in the Second Degree, all Class A misdemeanors.
By motion, Defendant seeks the dismissal of all charges contained in the Criminal Court Complaint pursuant to CPL Sec. 100.40 and 170.35, asserting that the People’s initial complaint was facially insufficient. In response to Defendant’s motion to dismiss, the People filed their Affirmation in Opposition dated September 13, 2005, as well as a Superceding Complaint, signed and dated September 12, 2005, which reiterated all of the charges stated above.
A New York Criminal lawyer said that in both initial Criminal Court Complaint, as well as the Superceding Complaint the People assert that on May 18, 2005, at about 6:45 PM, a Police Officer observed the Defendant at the Subway station located at Jay Street and Fulton Street, Brooklyn, NY. The officer allegedly watched the Defendant pick up a discarded card and “jam” the card vending machine by “placing the said card in the currency slot of the vending machine causing the machine to no longer accept United States currency.”
A Westchester County Criminal Lawyer said the officer then allegedly saw the Defendant receive United States currency from two individuals, “in exchange for which the Defendant swiped a card through the subway turnstile for each of these individuals, thereby allowing the said individuals to enter the transit system.” This language is identical in both the initial complaint and the superceding complaint.
A Suffolk Criminal Lawyer said that under CPL Sec. 100.15, every accusatory instrument must contain two elements; 1) an accusatory portion designating the offense charged, and 2) a factual portion containing evidentiary facts which support or tend to support the charges stated in the accusatory portion of the instrument. These facts must provide reasonable cause to believe that the defendant has committed the crime alleged in the accusatory portion of the accusatory instrument.
Further, under CPL Sec. 100.40, a misdemeanor information is facially sufficient if the non-hearsay facts stated in said information establish; 1) each and every element of the offense charged, and 2) the Defendant’s commission of said crime. If both these factors are present, then the information states a prima facie case, and is sufficient.
Applying these principles to the instant matter, the Unlawful Receipt, Criminal Mischief, Criminal Tampering and Petit larceny charges are all facially sufficient. The Theft of Services, Possession of a Forged Instrument, and Obstructing charges are insufficient, and are dismissed.
There is no fact contained in either the People’s initial complaint, nor in their Superceding Complaint, which would support an application of PL Sec. 195.05 to the actions of the Defendant alleged herein. The sale of card “swipes” simply does not “obstruct, impair and pervert the administration of the governmental function of the New York City Transit Authority of operating the transit facilities on a self-sustaining basis.” It merely deprives the NYCTA (and/or the MTA) of revenue, in a non-violent fashion. Thus, the legislative history of the statute clearly does not support such an application of this law to this conduct.
t the time of his arrest, the Defendant was in possession of 13 cards, all bent along the magnetic strip. On this basis, the People assert that the Defendant “with knowledge that it was forged, and with intent to defraud, deceive or injure another, uttered or possessed a forged instrument.”
Whether or not the bending of the card, and the swiping of the bent card through the turnstile constitutes forgery and/or possession of a forged instrument need not be addressed here. The 13 counts of Criminal Possession of a Forged Instrument in the Third Degree must be dismissed for a more basic reason.
Under CPL Sec. 170.20, a defendant 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.” Case law is clear in establishing that the defendant’s knowledge that an instrument is forged is an essential element of this offense.
Further, although knowledge that an instrument was forged “may be shown circumstantially by conduct and events, it may not be imputed solely from possession or presentation of the instrument.”
There is no fact alleged in either the People’s initial complaint, nor in their superceding complaint, to support any inference that the defendant had knowledge that he was in possession of a forged instrument. While both complaints assert that the Defendant accepted United States currency from two individuals, and “swiped” both through the turnstile, neither complaint asserts that the Defendant made use of a bent card to allow his customers passage into the transit system. He is merely alleged to be in possession of 13 bent cards at the time of his arrest.
Therefore, in the absence of any expression of the Defendant’s purported knowledge that the 13 bent cards were forged written instruments, the 13 counts of Criminal Possession of a Forged Instrument in the Third Degree are dismissed.
Accused of criminal cases should be properly represented before courts, where their cases are pending. Our Kings County Criminal Lawyers here in Stephen Bilkis are always ready and available to serve you. For cases involving theft of things, you can also consult our Kings County Grand Larceny Attorneys.