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Offering a False Instrument for Filing in the First Degree (NY Penal Law 175.35)

The offence of offering a false instrument for filing in the first degree is a felony prescribed under New York’s penal law 175.35. It was enacted and took effect on November 1, 1998. An individual is found to be guilty of the offence under the following circumstances:

• If he or she knows that the written instrument contains forged information or statement.

• If he or she presents the written instrument to a public authority, office, Benefit Corporation or servant with the intention of willfully defrauding the state, political sector, public Benefit Corporation or authority. The intent to defraud is not necessarily for purposes of obtaining money or property. It can be done to unlawfully gain the services of the public authorities concerned.

The above circumstances are coupled with the knowledge that the written instrument will be filed with, recorded or registered as part of the public office, authority, servant or Benefit Corporation’s records. The offence is categorized as a class E felony and the individual found guilty of committing it is imprisoned for a maximum of 4 years. Such an offence is often committed alongside other criminal offences such as forgery, enterprise corruption, criminal taxfraud and grand larceny.

Definition of Terms

To help us understand the offence better, we will seek to describe some of the key terms used in the definition of the offence as follows:

• Written instrument: It is an article that contains printed or written material whose main objective is to recite, transmit, exemplify, record or constitute evidential value, identity, privilege or right. The article can be used to benefit or cause a disadvantage to an individual.

• Intent: It is a purpose or objective arrived at consciously. Someone willfully makes a decision to advance fraudulent activities. He or she does this despite having full knowledge of the negative consequences that his actions will lead to. The intent can be joint or sole. The person seeking to defraud the public is not coerced to do so.

• Public servant: It is a person or public officer employed, designated or elected by the state or political party to exercise the functions of a public office.

Elements of Offering a False Instrument for Filing in the First Degree

Being a felony, the offence must be proved beyond reasonable doubt by the prosecution. Any proof on a balance of probabilities will not be entertained by the New York courts. Hence, before the accused person is deemed to be guilty of this offence, the prosecution needs to prove the existence of the following elements:

• The existence of actus reus. The prosecution should show the date, time and county, in which the accused person presented the written instrument to a public servant, Benefit Corporation, office or authority.

• The existence of mens rea. The accused person must have had the knowledge or reasonably believed that the written instrument would be recorded, registered or filed as part of the public servant, office, Benefit Corporation or authority’s records.

• The existence of fraud: The written instrument must be shown to be containing false information or statement. It must also be proved that the accused person was aware that the written instrument was a tool for deception to defraud the state.

• Intent to commit fraud: The prosecution must proof that the accused person had intentions to advance fraudulent activities by defrauding the state or the state’s public authority, office, Benefit Corporation or political party.

Probable Defenses to the Offence Offering a False Instrument for Filing in the First Degree

An accused person can use any of the defenses outlined below to defend themselves so as to either be acquitted of the offence or face a lesser punishment:

• Lack of intention to defraud. The accused person may have presented the written statement without knowing that it was a forgery.

• Infancy where the accused person is 16 years and below. In law, it is an irrebutable presumption that an infant is incapable of having mens rea.

• Mental illness or defect. A mentally incapacitated person, just like an infant, lacks the capacity to have mens rea.

• The entity in question is not public. The offence cannot be committed against a private body or individual.

In conclusion, all the above elements must be present for the accused person to be charged with the offence. If any of the elements is not proved beyond reasonable doubt, the accused person will be deemed not to be guilty of the offence. Before or during the trial, the accused person should seek the services of a criminal defense attorney to effectively discuss the merits of their case and the probable defenses that can be put up. If convicted of the offence, the accused person’s liberty, future life and career decisions will be negatively impacted.

by Leonard on Spodek Law Group
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