According to sources, the instant case involves three kinds of indictment against all accused ordered by the lower court after trial and hearing of evidences, as regards respective charges against them. They move for inspection of the Grand Jury minutes and for dismissal of the instant indictment, on the ground that it was not founded on legally sufficient evidence. For the reasons set forth below, the motion is granted in all respects.
The first count of the indictment accuses the offenders of a violation of Section 170.10, subd. 3, of the Penal Law as follows: forgery in the second degree, committed as follows: ‘The corporation, and an officer in the Corporation doing business as engaged in Motor Sales, on or about the 30th day of September, 1974, with intent to defraud, deceive and injure another, falsely made, completed and altered a written instrument, of which the following is a copy, the same being and purporting to be and calculated to become and to represent, if completed, a written instrument officially issued and created by a public office, public servant and governmental instrumentality, to wit, a MV–50 form.’
A completed MV–50 form is adhered to the indictment. The proof indicates that it was a genuine and valid instrument made by an authorized agent of the corporation. A mere reading of the statutory definitions of ‘falsely make’, ‘falsely complete’, and ‘falsely alter’, as found in P.L. section 170.00, subds. 4, 5, and 6, make it patently obvious that such proof precludes even a prosecution for simple forgery.
With the evidence in mind, the court turn to the applicable statute: ‘A person is guilty of offering a false instrument for filing in the second degree when, Knowing that a Written instrument contains a False statement or False information, he offers or presents it to a public office or public servant with the knowledge or belief that it will be filed with, registered or recorded in or otherwise become a part of the records of such public office or public servant.’
In determining whether their actions fall within this criminal statute’s proscription, the Court scrutinizes with care its component words and terms.
In People v. McHugh, that made criminal the act of a public officer who receives public money and who ‘knowingly keeps any false account, or makes any false entry or erasure in any account of, or relating to, any money so received by him’. McHugh willfully and knowingly kept false accounts and made false entries and erasures in his supervisor’s cash book in order to show correct balances, thereby compensating for his lack of accounting skill. He did not steal or attempt to steal any public funds, and correctly deposited and expended the monies entrusted to him. In reversing the criminal conviction and dismissing the indictment, the Court held that the term ‘knowingly’ imports more than mere knowledge, and that it signifies guilty knowledge or evil or fraudulent intent.
Whereas in the present case, a criminal statute employs the word ‘false’, it requires proof of something more than the untrue. Its use imports an intention to deceive. It implies an evil intent, a corrupt motive, or an intent to perpetrate some treachery or fraud. The law does not intend prosecutions for words written in vanity, boast, feign, silliness or the like, nor should citizens be compelled to defend their written answers to non-essential questions propounded by beaurocratic busybodies. The use of the words ‘knowingly’ and ‘falsely’ imply otherwise.
It seems clear, therefore, that the false statement or information must be material to the written instrument in which it is contained. There must be a sufficient nexus between that which the complete instrument is intended to accomplish and those portions of it which are not accurate. The inaccurate facts or statements must be such as will determine the effectiveness of the whole writing or go to the integrity of the entire instrument. It must reasonably appear that the erroneous information will cause, influence or determine a result that would not otherwise occur.
In this case, there is no proof of nexus between the inaccurate information and the purpose of the MV–50 form. Nor is there proof that the Department of Motor Vehicles would not have allowed the Buyer to register the vehicle had the correct information been placed on the form. Where the Grand Jury proof demonstrates merely untrue statements, a citizen need not suffer trial of an accusation of offering a false instrument for filing.
Moreover, a ‘written instrument’ has been defined as a contract, deed, will, bond, or lease, and as a legal document evidencing legal rights or duties, especially of one party to another. Certainly under the facts of this case, the MV–50 form is not a ‘written instrument’.
The second count of the indictment accuses of a violation of Section 155.30, subd. 1, of the Penal Law. The indictment accuses the defendants of the crime of grand larceny in the third degree. The company, and an officer in the corporation doing business, stole certain property from someone, having an aggregate value of over $250.00, by false pretenses, to wit, the agents did knowingly promise to deliver a new 1974 Dodge automobile bearing vehicle identification number, and delivered said automobile which had been used for approximately seven months, thereby depriving the transferee, of the difference in value thereof in excess of $250.00.’
This testimony, together with the facts that the vehicle was sold and delivered to the Seller more than a year before the instant transaction and that the Buyers carefully inspected the vehicle prior to purchase, make it clear that the agent did not represent the vehicle as new and that the buyers did not act in reliance on a pretense that it was new, as alleged in the indictment.
Moreover, both of the experts who testified as to the vehicle’s value make it clear that the buyers purchased the vehicle at less than its average retail value. Such evidence, together with the other facts and circumstances, does not establish the criminal intent necessary for larceny.
The third count of the indictment accuses of a violation of Section 392–e, subdivision 2, of the General Business Law, in that they allegedly disconnected the mileage measuring device on the vehicle. The proof here purports to be circumstantial: the odometer reading was 004 on May 8, 1974, 003 on June 13, 1974, 001 on August 18, 1974, and 001 on September 30, 1974.
But there is no proof that the odometer was ever properly connected or in proper working order. The accused is entitled to the presumption of innocence before the Grand Jury, and an indictment must be dismissed unless the proof before that body establishes guilt. The third count is a product of surmise, speculation, and conjecture. Accordingly, this indictment is ordered dismissed.
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