People v Solyhanzadeh
Annotate this CaseDecided on July 8, 2009
Criminal Court of the City of New York, New York County
The People of the State of New York
against
Nasrollah Solyhanzadeh, Defendant.
2009NY017646
For the People:
New York County District Attorney's Office
ADA William Mason, Esq.
For the Defense:
James Palumbo, Esq
350 Broadway, Suite 1201
New York, NY 10013
Marc J. Whiten, J.
The defendant, Nasrollah Solyhanzadeh, is charged with criminal possession of a forged instrument in the third degree in violation of Penal Law ("PL") §170.20. The defendant in an omnibus motion seeks: (1) Dismissal of the accusatory instrument as facially insufficient, pursuant to CPL §§ 170.30[1][a] and 170.35[1]; (2) Suppression of physical evidence or a Mapp/Dunaway hearing; (3) Preclusion of identification evidence and statements for which proper notice was not given by the People; (4) Preclusion of evidence of defendant's prior convictions pursuant to People v. Sandoval; (5) discovery; and (6) a bill of particulars. Upon the foregoing, the defendant's motion is decided as follows.
Defendant's facial insufficiency argument is without merit. An information is facially sufficient if it meets three requirements. First, it must substantially conform to the formal requirements of CPL §100.15. Additionally, the factual portion and any accompanying depositions must provide reasonable cause to believe the defendant committed the offense charged, as well as nonhearsay factual allegations of an evidentiary character which, if true, establish every element of the offense charged and defendant's commission thereof (CPL §§ 100.15[3] and 100.40[1]; see People v Dumas, 68 NY2d 729 [1986]; see also People v Alejandro, 70 NY2d 133 [1987]). "The law does not require that the information contain the most precise words or phrases most clearly expressing the charge, only that the crime and the factual basis therefore be sufficiently alleged." (People v Sylla, 7 Misc 3d 8, 10 [App Term, 2d [*2]Dept 2005]). Additionally, where the factual allegations contained in an information "give an accused sufficient notice to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading." (People v Casey, 95 NY2d 354, 390 [2000]).
"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." (P.L. § 170.20). Accordingly, to support the charge the accusatory instrument must establish that the instrument at issue was forged, that the defendant possessed the instrument, that he or she possessed it knowing that it was forged, and that he or she used it or possessed it with the intent to deceive, defraud or injure another. (See, People v. Johnson, 65 NY2d 556 [1985]; People v. Singh, N.Y.L.J., May 11, 1999, p.28, col. 1 [Crim. Ct., NY Co.]).
In the case at bar, the information sets forth factual allegations stating, in sum, that deponent recovered three bent MetroCards from the defendant, and that the MetroCards were bent along the magnetic strip in a manner that obliterates the encoded data and alters the value of the MetroCard. Defendant argues that these factual allegations are facially insufficient, inasmuch as they fail to set forth facts and non-hearsay allegations establishing the offense charged.
Defendant's argument is three-fold. First, defendant argues the charge should be dismissed because the legislature's enactment of P.L. §165.16 precludes prosecution for possession of forged MetroCards under the general forgery statutes. Second, defendant argues that a bent Metrocard is not a forged instrument because it does not purport to be an authentic creation issued by the Transit Authority. Third, defendant argues that the accusatory instrument fails to establish that the defendant had knowledge that the instrument was forged or that the defendant had the requisite intent to defraud. The court disagrees and denies defendant's facial sufficiency motion.
Defendant's first argument is unavailing. Defendant does not allege nor has the court found anything in the language or legislative history of Penal Law §165.16 suggesting the legislature, in the enactment of PL §165.16, intended to foreclosure or limit prosecution of possession of forged MetroCards. (See, People v. Mattocks, 2009 WL 1148646 *1, *4]). Furthermore, the applicability of forgery statutes has been upheld by the New York Court of Appeals in People v. Mattocks, 2009 WL 1148646 *3 [2009], in which the court held that PL §165.16 did not eliminate the applicability of forgery statutes for MetroCard prosecution. In addition, as a general rule, when conduct is potentially punishable under two or more statutes, the prosecution has prosecutorial discretion to choose among the statutes when initiating a prosecution. (People v. Valenza, 60 NY2d 363, 370 [1983]). It is also well settled that absent explicit legislative language, an overlap in criminal statutes and/or the opportunity for prosecutorial choice does not bar prosecution. (People v. Eboli, 34 NY2d 281, 287 [1974]; see also People v. Duffy, 79 NY2d 611, 615 [1992][In the absence of a clear legislative intent barring prosecution, a defendant may be convicted under any applicable statute]). Therefore, the court finds defendant's prosecution under PL §170.20 is not precluded by the enactment of PL §165.16.
Defendant's second argument that a bent MetroCard is not a forged instrument within the purview of Penal Law § 170.00 is also unpersuasive. Contrary to defendant's contention MetroCards do constitute forged "instruments" within the purview of Penal [*3]Law § 170.00. (See, People v. Mattocks, 2009 WL 1148646 *3; [Concluding that MetroCards with creases or bends constituted forge instruments within the purview article 170]; see also, People v. Verastegui, 8 Misc 3d 1026(A) [NYC Crim.Ct., NY Cty 2005], People v. Roman, 8 Misc 3d 1026(A) [Crim.Court, NY Cty 2005], People v. Owens, 12 Misc 3d 600 [Supreme Court, Bx Cty 2006], People v. Gottlieb, 36 NY2d 629 [1975]). A "forged instrument" is defined as a "written instrument which has been falsely made, completed or altered." P.L. §170.00[7]. Penal Law §170.00[1] defines, in pertinent parts, a "written instrument" as "any instrument or article...containing written or printed matter...constituting a symbol or evidence of value...capable of being used to the advantage or disadvantage of some person." PL §170.00[1]. MetroCards are printed MTA instruments whose magnetic strip is given monetary value in order to attain legal access to ride New York City mass transit. The accusatory instrument states that the MetroCards in defendant's possession were in an altered state since the MetroCards were bent along the magnetic strip, which alters the value of the instrument. Therefore, the allegations sufficiently establish that the MetroCards constitute a forged instrument within the purview of Penal Law §§170.00[1] and [7], inasmuch as the MetroCards in defendant's possession were altered printed instruments with monetary value capable of being used to the disadvantage of the MTA.
Finally, defendant contends that the accusatory instrument fails to establish the defendant had knowledge the instrument was forged or the requisite intent to defraud. While it is true that the complaint does not specifically allege the defendant had knowledge, this is a situation where knowledge can be inferred from the physical characteristics of the alleged forged document described in the accusatory instrument. (See, People v. Olwes, 191 Misc 2d 275 [Crim.Ct. Kings Co. 2002](forged police parking plaque lacking official indicia of authenticity, including the large police department shield found on holographic plaques, the pre-printed serial number, the registration and vehicle identification numbers); People v. Stephens, 177 Misc 2d 819 [Crim. Ct. Kings, Co. 1998](temporary New Jersey license plate lacking an expiration date, solid edges, and containing seals with uneven spacing and faded color). The court takes judicial notice that the physical characteristic of a MetroCard does not include a bend along the magnetic strip. (See, People v. Roman, 8 Misc 3d 1026(A) [Crim.Court, NY Cty 2005], People v. Owens, 12 Misc 3d 600 [Supreme Court, Bx Cty 2006], People v. Gottlieb, 36 NY2d 629 [1975]). Here, the accusatory instrument alleges that the MetroCards were bent in a location on the magnetic strip in a manner that obliterates the encoded data, as well as alters the fare value of the card and whose forged nature are revealed from a simple observation. These allegations given "a fair and not overly restrictive or technical reading," (People v. Casey, 95 NY2d 354, 360 [2000]) sufficiently support the inference that defendant knowingly possessed a forged instrument. (People v Gonzalez, 184 Misc 2d 262, 264 [App Term, 1st Dept 2000][internal quotation marks omitted]["In assessing the facial sufficiency of a misdemeanor complaint, the court is not required to ignore common sense or the significance of the conduct alleged"]). Therefore, although the court recognizes that mere possession of a forged document is not enough to presume knowledge of the [*4]forgery, where the circumstances are such that knowledge can be inferred from the physical characteristics of the allegedly forged instrument described in the accusatory instrument the accusatory instrument is sufficient to establish knowledge. (People v. Johnson, 65 NY2d at 561). (See, People v. Olwes, supra ; People v. Stephens, supra ).
Accordingly, this court finds that the information is facially sufficient, inasmuch as the non-hearsay factual allegations clearly set forth the offense allegedly committed, and give the defendant notice sufficient to prepare a defense while ensuring that she would not be tried twice for the same offense. (See People v. Kalin, 12 NY3d 225 [2009], 2009 NY Slip Op 02446).
Defendant's motions to suppress physical evidence is granted to the extent of ordering a Mapp/Dunaway hearing. Defendant's motions to suppress or preclude identification testimony and any statements made by defendant are denied, inasmuch as the People have indicated that no identification testimony or statements made by defendant will be offered at trial. The defendant's motion for pretrial discovery is granted to the extent provided in the Voluntary Disclosure Form included with the People's response. The defendant's motion seeking Bill of Particulars is granted to the extent required by CPL §200.95 and not previously provided by the People's Affirmation in Opposition and Voluntary Disclosure Form. The Sandoval application is deferred to the trial court.
This constitutes the decision and order of the Court.
Dated:July 8, 2009____________________________
New York, New YorkHon. Marc J. Whiten, JCC
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