Defenses to Criminal Possession of a Forged Instrument

Possession of a forged instrument is either a felony (in the first or second degree) or a misdemeanor (in the third degree). New York law indicates, ” A person is guilty of criminal possession of a forged instrument in the first degree when, with knowledge that it is forged and with intent to defraud, deceive or injure another, he utters or possesses any forged instrument of a kind specified in section 170.15.”

That looks pretty straightforward and clear, but it’s actually not that simple. There are a variety of defenses that could be mounted if you’ve been charged with criminal possession of a forged instrument.

Intent to defraud

Prosecutors must prove that you had an intent to defraud with the forged instrument. Intent to defraud is established when you intend to lead another into error or create a disadvantage. Proving intent to defraud is easier if you were caught trying to pass a fake check than if you had that fake check in your wallet or purse, but even then, it is not a certainty. If there was no intent to defraud, then this may be a good defense. Your lawyer can help you determine whether this is a good place to start.

Knowledge that it was a forgery

Even if all appearances indicate intent to defraud, there may be other factors at play. Perhaps you had or believed you had permission to sign another person’s name. Maybe you received the instrument from someone else in good faith and truly had no idea it was forged. Some forgeries are not readily apparent to the average citizen, and that may be your defense.

Perhaps you had a couple of fake $20 bills that you tried to pass. Did you only pass the forgeries, or did you also pass real bills? Did you recently visit an ATM or bank, or get change back at a store? What is the quality of the fake bills? If the quality is quite good, you can argue that you didn’t know they were fake.

Was it a forged instrument or not?

The item that is forged must be a written instrument. But what, exactly, does that mean? Does it have to be a check? A counterfeit $20? Fake driver’s license or passport? There are a multitude of items that can count as a “written instrument” and New York law is very broad about what counts for the purposes of this charge.

A few examples of forged instruments are:
-A check made in the name of a fictitious person
-A driver’s license with an altered date of birth
-A fake driver’s license with entirely false information
-A fake credit or debit card
-A passport made in the name of a fictitious person
-A check signed by someone other than the named person without their consent
-A passport in the name of a real person but with the photo of another person
-Counterfeit cash
-An invoice for fake goods or services

While all of these things are forged instruments, having one of them in your possession does not necessarily equal a charge for criminal possession of a forged instrument. It’s worth exploring with your lawyer whether the instrument you had counts.

How many instruments did you have?

It is much easier to defend against this charge if you have a single counterfeit $20 bill among a dozen legitimate ones, than if you have half a dozen fake credit or debit cards. New York law says that if you have at least two forged debit or credit cards, the judge can instruct the jury that they may legally conclude you knew they were forged and that you possessed them with the intent to deceive or defraud. Obviously, this makes your defense much harder. This is why it is critical to have a good lawyer who can help you.

How were the instruments found?

If you attempted to pass the forged instruments, and were subsequently arrested, you may not have a defense here. But if you were searched by police after being stopped for another reason, you may be able to claim an illegal search. This is something that you would definitely need to discuss thoroughly with your lawyer.

However the charge came about, it’s important to discuss the details of the situation in full with your lawyer. They can only mount the defense if they know everything. Remember that what you tell your lawyer remains between you and your lawyer. Be completely honest and open, and heed your lawyer’s advice.