People v Mellish

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[*1] People v Mellish 2004 NY Slip Op 50869(U) Decided on August 3, 2004 Criminal Court Of The City Of New York, New York County Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 3, 2004
Criminal Court of the City of New York, New York County



PAGE MELLISH, Defendant.


Anthony J. Ferrara, J.

The defendant is charged with one count of scheming to defraud in the second degree (PL 190.60 [1]), two counts of fraudulently obtaining a signature (PL 165.20) and two counts of fraudulent accosting (PL 165.30 [1]). She has moved to dismiss all counts of the information for facial insufficiency and for various other relief.

Defendant's omnibus motion is decided as follows:

Motion to Dismiss for Facial Insufficiency

Defendant's motion to dismiss the charges of scheming to defraud in the second degree and fraudulent accosting is denied. Her motion to dismiss both counts of fraudulently obtaining a signature is granted.

An information is facially sufficient if the factual section contains allegations of an evidentiary nature demonstrating reasonable cause to believe that the defendant committed the offense charged (CPL 100.15 [3]; CPL 100.40 [1] [b]). The facts must be supported by nonhearsay allegations which establish, if true, every element of the charged offense (CPL 100.40 [1] [c]; People v Alejandro, 70 NY2d 133, 135 [1987]; People v Hall, 48 NY2d 927 [1979]). Conclusory allegations are insufficient (People v Dumas, 68 NY2d 729 [1986]).

The information alleges that at East 86th Street and Second Avenue in New York City, the defendant stood behind a table with signs reading "Animal Rights Lobby" and "Homeless Cats" and asked pedestrians to sign a petition. The defendant allegedly told two people that they had to contribute money to the "Homeless Cats" charity in order to sign the petition. The defendant allegedly stated, in substance: "we are a lobby but ask for a $7 fee. But you don't have to give that much. You can give $5 or $3." The information further alleges that the two people gave the defendant money because they believed that she was a legitimate charity. Finally, the information alleges that "Homeless Cats" is not a charity that is registered with the Charities Bureau of the New York State Attorney General's Office.

Scheme to Defraud in the Second Degree

Penal Law § 190.60 (1) states: "A person is guilty of a scheme to defraud in the second degree when he engages in a scheme constituting a systematic ongoing course of conduct with intent to defraud more than one person or to obtain property from more than one person by false or fraudulent pretenses, representations or promises, and so obtains property from one or [*2]more of such persons."

Because the standard for pleading a prima-facie case is lesser than the heavy burden of proof beyond a reasonable doubt required at trial (People v Henderson, 92 NY2d 677, 680 [1999]), viewing the evidence in the light most favorable to the People (People v Gibble, 2 Misc 3d 510, 512 [Crim Ct, NY County 2003]), the allegations here are sufficient to defeat a motion to dismiss for facial insufficiency.

The allegations that the defendant stood on the street behind a table with signs reading "Animal Rights Lobby" and "Homeless Cats" and asked more than one pedestrian to sign a petition demonstrate that the defendant engaged in a "systematic ongoing course of conduct." The allegations suggest that the defendant followed a common course of action with respect to the pedestrians that she asked to sign the petition (see e.g. People v First Meridian Planning Corp., 86 NY2d 608, 617 [1995]; People v Kaminsky, 127 Misc 2d 497 [Crim Ct, NY County 1985]).

Furthermore, the allegations demonstrate that the defendant intended to defraud more than one person to obtain property by false or fraudulent pretenses. Specific intent to defraud may be inferred from circumstantial evidence (see People v White, 101 AD 2d 1037, 1039 [2d Dept 1984]). The information alleges that the defendant asked two pedestrians to sign a petition for homeless cats, that she told the pedestrians that they would have to contribute money to the "Homeless Cats" charity in order to sign the petition, and that the pedestrians gave money to the defendant believing that the money would go to a legitimate charity when in fact "Homeless Cats" was not registered with the Charities Bureau of the New York State Attorney General's Office. These facts give reasonable cause to believe that the defendant held herself and the "Homeless Cats" charity out as a registered charity. Finally, the information alleges that the defendant obtained money from more than one person.

Whether the defendant or "Homeless Cats" was a registered charity or a simply a lobby, whether or not the money actually went to benefit homeless cats, and whether the defendant intended to "euchre" the public (as defense counsel orally argued when he was before the court), are all trial issues.

Fraudulently Obtaining a Signature

Defendant's oral arguments, advanced upon submission of the motion, do have merit with regard to the Penal Law § 165.20 counts. Penal Law § 165.20 states: "A person is guilty of fraudulently obtaining a signature when, with intent to defraud or injure another or to acquire a substantial benefit for himself or a third person, he obtains the signature of a person to a written instrument by means of any misrepresentation of fact which he knows to be false."

Although the term "written instrument" is not defined in Article 165, it is defined in Articles 170 of the Penal Law, dealing with forgery and related offenses, and Article 175, dealing with offenses involving written statements. Penal Law § 170.00 (1) defines "written instrument" as "any instrument or article, including computer data or a computer program, containing written or printed matter or the equivalent thereof, used for the purpose of reciting, embodying, conveying or recording information, or constituting a symbol or evidence of value, right, privilege or identification, which is capable of being used to the advantage or disadvantage [*3]of some person." Penal Law § 175.00 (3) contains an identical definition.

The legislature defined the term broadly in Article 170 to cover all documents and other items "susceptible of deceitful use in a 'forgery' sense," so long as it is "capable of being used to the advantage or disadvantage of some person'" (Donnino, Practice Commentary, McKinney's Cons Laws of NY, Book 39, Art. 170, p.6 [1999 ed] [quoting Staff Notes of the Commission of Revision of the Penal Law; Proposed New York Penal Law, McKinney's Spec. Pamph. (1964), p. 360]). The definition applies not only to items that affect the flow of commerce (see People v Hodges, 246 AD 2d 824, 826 [3d Dept 1998]), but to a variety of items, including metrocards (In re D.U., 192 Misc 2d 601 [Fam Ct, Queens County 2002]), altered cable television boxes (People v Grant, 185 Misc 2d 512 [Crim Ct, Bronx County 2000]), cloned cellular telephones (169 Misc 2d 752 [Sup Ct, Kings County 1996]), motor vehicle operator's permit and application for a permanent driver's license (People v Briggins, 50 NY2d 302 [1980]), homemade license plates (People v Hodges, 246 AD 2d 824 [3d Dept 1998]) and credit card receipt vouchers (People v LeGrand, 81 AD 2d 945 [3d Dept 1981]).

The legislature defined "written instrument" in Article 170 in 1965 (L 1965, ch 1030 § 1), and subsequently defined it in Article 175 in 1978 (L 1965, ch 1030; amended L 1978, ch 233). In determining whether the petition for homeless cats qualifies as a written instrument under Penal Law § 165.20, it is useful to look at how courts defined "written instrument" under Article 175 prior to the enactment of the definitional statute in 1978.

In People v Gottlieb (36 NY2d 629 [1975]), the Court of Appeals held that an application for a certificate of occupancy was not a written instrument within the meaning of Penal Law § 175.35. At the time, Article 175 did not define "written instrument." The court held that although the nature of the statute prohibiting the filing of a false instrument potentially encompassed a great many documents, the term had to be given a narrow construction so as not to exceed the scope of legislative mandate (id. at 631-631 [also discussing its prior holding in People v Sansanese, 17 NY2d 302 (1966)]). The court specifically rejected the argument that the broad definition of "written instrument," then present in Article 170, should also apply to Article 175 (id. at 632), and held that had the legislature intended to define the term in such an expansive way, it would have expressly done so in Article 175 (id. at 633).

In People v Bel Air Equipment Corp. (39 NY2d 48 [1976]), the Court of Appeals held that State vouchers used to make claims against the State are instruments within the meaning of Penal Law § 175.35. The court held that the term "instrument" meant different things in different contexts, depending on the scope and purpose of a particular statute (id. at 54). The court held that in determining whether a document is an instrument within the meaning of a statute, it must construe whether (1) the document falls within the particular statutory prohibition, and (2) whether the document was of the type intended to be covered by the legislature in enacting the statute (id. at 55).

In People v Altman (83 Misc 2d 771 [County Ct, Nassau County 1975]), the court looked to the Court of Appeals decision in Gottlieb for the definition of "written instrument" under Penal Law § 175.30, and held that a Department of Motor Vehicles form was not a written instrument because it did not evidence legal rights or duties of one party to another (id. at 774). In People v Orchard (90 Misc 2d 1011 [County Ct, Duchess County 1977]), the court held that a summons was not within the class of documents intended by the legislative scheme of Penal Law [*4]§ 175.35 because it did not seek economic benefit from the State, did not attempt to defraud the State, and because the summons was non-negotiable and did not create any legal rights (Orchard, at 1013, 1014). Instead, the summons only served to give notice to a defendant (Orchard, at 1014).

In 1978, in response to the narrow construction of the term "written instrument" by the Court of Appeals, the legislature amended Article 175 to include a definition of "written instrument" identical to the one set forth in Article 170 (see Mem of Legis Rep of City of NY, 1978 McKinney's Session Laws of NY, at 1710).

Here, because the legislature has not expressly defined "written instrument" in Article 165 of the Penal Law, this court must look to the Court of Appeals decisions in Gottlieb and Bel Air Equipment Corp. for guidance in construing that term. Although the term "written instrument" potentially encompasses a great variety of documents, this court holds that the petition for homeless cats that the defendant asked pedestrians to sign does not constitute a "written instrument" within the meaning of Penal Law § 165.20 for several reasons.

First, Article 165 deals with offenses related to theft. It criminalizes theft of services, unlawful use of credit cards, jostling and fraudulent accosting all crimes having to do with theft of money and personal property. The placement of Penal Law § 165.20 within this overall Article dealing with such crimes strongly suggests that "written instrument," as stated in that statute, should be limited to negotiable instruments such as checks, drafts, bank notes and credit cards, i.e., items that confer a pecuniary benefit on the holder. Read this way, it is difficult to see how obtaining a signature to the homeless cats petition would confer "a substantial benefit" to a person.

Second, following Gottlieb, this court must construe the term "written instrument" narrowly so as not to exceed the scope of the legislative mandate in enacting Penal Law § 165.20. Had the legislature intended to define "written instrument" as it had in Articles 170 and 175, it would have done so.

Third, in Gottlieb, the court adopted a definition of "written instrument" that encompassed both negotiable instruments and legal documents such as a deed or will evidencing rights or duties from one party to another. The petition alleged in this case does not meet that definition.

Finally, had the legislature intended the Articles 170 and 175 definition of "written instrument" to apply to all sections of the Penal Law, it would have included it in the definitional section of the Penal Law, Article 10, which applies to the entire Penal Law.

Because the homeless cats petition is not a "written instrument" under Penal Law § 165.20, the defendant's motion to dismiss the two counts of fraudulently obtaining a signature for facial insufficiency is granted.

Fraudulent Accosting

Penal Law § 165.30 (1) states: "A person is guilty of fraudulent accosting when he accosts a person in a public place with intent to defraud him of money or other property by means of a trick, swindle or confidence game."

The factual allegations give reasonable cause to believe that the defendant accosted pedestrians on the street, where her table was set up, with intent to defraud them into giving money to the defendant for the "Homeless Cats" charity when such a charity was not [*5]properly registered.

Motion to Suppress Statements

Defendant's motion to suppress her statements is granted to the extent that a Huntley/Dunaway hearing is ordered.

Motion to Preclude Evidence

Defendant's motion to preclude physical evidence and identification testimony is denied. However, the VDF indicates that a table, signs and the defendant's petition were seized from the defendant. Therefore, defense counsel is given leave to file a written motion to suppress that evidence pursuant to CPL 710.60.

Motion for Bill of Particulars and Additional Discovery

Defendant's motion for a Bill of Particulars and additional discovery is denied. The VDF is sufficient.

The People are reminded of their continuing obligation to supply Brady material.

To the extent not addressed herein, the remainder of the motions are denied.

This opinion constitutes the decision and order of the court.

Dated:New York, New York

August 3, 2004



Judge of the Criminal Court

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