Articles Posted in Fraud Related Offenses

There are two NY criminal defense attorneys who have a lot of work cut out for them after a Manhattan Grand Jury indicted their clients on four counts of Grand Larceny in the Third Degree, two counts of Criminal Possession of Stolen Property in the Third Degree, two counts of Grand Larceny in the Fourth Degree, and three counts of Scheme to Defraud in the First Degree.

According to the Manhattan District Attorney’s Office, two individuals, Edward and Eugenia Fiammetta, used their public assistance benefit cards to fraudulently obtain $54,725 in food stamp credits from 17 Manhattan grocery stores.

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You are arrested for Prostitution in New York because you were allegedly involved in an escort service or for Forgery in Brooklyn because you were allegedly caught making counterfeit money. Regardless of the underlying crime, if you are arrested anywhere in New York – Manhattan, Brooklyn, Queens, Westchester, Rockland – the police can easily charge you with False Personation if you take a poor course of action. Once you are informed by law enforcement of the consequences of giving false personal information, such as a name or date of birth, and you knowingly misrepresent that information with the intent to prevent the officer from ascertaining the true information, don’t be surprised if the police charge you with False Personation even if the underlying arrest goes nowhere.

Although False Personation is “only” a “B” misdemeanor, as a former prosecutor in the Manhattan District Attorney’s Office under Robert Morgenthau and one of the first prosecutors assigned to the Identity Theft Unit upon its creation, I can tell you defendants often dug themselves into deeper holes because they provided misleading or false information. In other words, if law enforcement does not proceed with the original criminal charges you should be released and the case is over. If, however, the police try to ascertain certain information, you are advised of the consequences if you misrepresent, and you in fact misrepresent to prevent the police from determining your true identity, then you may have bought yourself a night in jail. Why is this significant? Not only will you have to spend time incarcerated waiting to see a judge, but if you were the target of an investigation or the police are investigating new charges and figuring out how to proceed, you just gave them ample time to do so and a reason to lock you up.

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As a former prosecutor in the Manhattan District Attorney’s Office, one of the founding members of the Identity Theft Unit after its creation, and a New York criminal defense attorney, I have seen countless individuals charged with Criminal Possession of a Forged Instrument and related offenses for their involvement in some form of large scale fraud.

Whether the Grand Jury indicts these individuals for Forgery, Identity Theft, Criminal Possession of a Forged Instrument, Falsifying Business Records or Trademark Counterfeiting, the felony offenses they face can land them in state prison for a term of up to 7 or 15 years. In the event there is an associated theft in excess of one million dollars, that potential sentence can reach 25 years.

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As one of the original founding member of the Manhattan District Attorney’s Office Identity Theft Unit after the unit’s creation and as a criminal defense attorney, I have had the opportunity to prosecute, investigate and defend individuals accused of a laundry list of crimes in the fraud arena. These NY crimes have included, but are not limited to, Forgery in relation to counterfeit currency, Identity Theft in relation professional GRE, GMAT and TOEFL test-takers and Money Laundering in relation to narcotics, prostitution, and escort services. One of the crimes that is becoming more prevalent is Health Care Fraud. According to New York Penal Law Article 177, there are five degrees of Health Care Fraud as follows:

Health Care Fraud in the Fifth Degree – NY Penal Law 177.05 – establishes that a person is guilty of this crime when, with the intent to defraud a health plan (generally a publicly or privately funded heath insurance or managed care plan or contract), he knowingly and willfully provides materially false information or omits material information for the purpose of requesting payment from a health plan or health care item or service and, as a result of such information or omission, he or another person receives payment in an amount that he or such other person is not entitled to under the circumstances. This crime is an A misdemeanor punishable by up to one year in jail.

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Recently, I posted a decision issued by a Manhattan Criminal Court Judge from April 2008 finding that mere possession of a fake ID (fake identification card) was sufficient to establish intent and knowledge to sustain the charge of Criminal Possession of a Forged Instrument under New York Penal Law Section 170.20. Unlike that decision, a recent case out of Kings County (Brooklyn) is much more favorable for defendants charged with Criminal Possession of Forged Instrument in a different context and a case that criminal defense attorneys should be aware of.

In People v. Erwin Kouris, Brooklyn Criminal Court Judge Pickett found that a complaint against the defendant charging Criminal Possession of a Forged Instrument should be dismissed for facial insufficiency. In that matter, the defendant was charged with numerous Vehicle and Traffic Law (VTL) violations as well as Criminal Possession of a Forged Instrument. Judge Pickett noted that in order to sustain the Criminal Possession of a Forged Instrument charge, the accusatory instrument must allege knowledge of forgery and intent to defraud on the part of the defendant. In other words, a defendant’s mere possession may not be sufficient depending on the circumstances. Therefore, a dismissal may be warranted.

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Recently, Judge Mandelbaum of the New York County (Manhattan) Criminal Court issued a decision regarding Criminal Possession of a Forged Instrument in the Third Degree that is a setback for all defendants charged with Criminal Possession of a Forged Instrument in the New York City area from the Bronx and Brooklyn to White Plains and Yonkers in Westchester County. Specifically, Judge Mandelbaum held on April 22, 2008, that a prosecutor does not need to allege that a defendant is aware that a New York State issued identification card in his or her possession is fake or that he or she intended to improperly use that card.

In People v. Barona, 2007NY089837, the defendant possessed a false or forged New York State Identification Card which he had in his hand. Denying the defendant’s motion to dismiss, Judge Mandelbaum theorized that “it is in-conceivable that the very person in whose name the card has ostensibly been issued would not know that the card is a forgery.” Furthermore, if a card is “legitimate,” Judge Mandelbaum asserted, common sense dictates that the person carrying it would have to know whether he applied and ultimately received the state issued card in his own name. Clearly then, “the ostensible bearer must therefore know that such a card is forged” and, therefore, it can reasonably be inferred that there was an intent to defraud or deceive because there is no other reason to possess a forged state issued card.’

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There is little dispute that if you use a fake identification to rent a car in Manhattan, a bogus credit card to make a purchase at a supermarket in the Bronx, or a phony check to make a payment on an account in White Plains (Westchester County), you run a real risk of being charged with Criminal Possession of a Forged Instrument, a felony. Well, what if that “forged instrument” is a MetroCard being used to swipe a turnstile in Brooklyn? New York State Penal Law Section 170.25, Criminal Possession of a Forged Instrument in the Second Degree, establishes that if a person possesses a forged instrument, with knowledge it is forged and with intent to defraud, deceive, or injure another, that person may be guilty of this crime if he or she possesses a forged instrument of a kind specified in New York State Penal Law Section 170.10, Forgery in the Second Degree.

Instead of diving head first into this entire section, Penal Law Section 170.10(4) sets forth that if a person makes, completes or alters a written instrument which purports to be or represent if a completed a “part of an issue of tokens, public transportation transfers, certificates or other articles manufactured and designed for use as symbols of value usable in place of money for the purchase of property or services,” they are guilty of Forgery in the Second Degree.

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