The Court dismissed the motion

This is a Criminal case where the defendant moves to dismiss the indictment against him upon the ground that there is insufficient evidence to sustain any of its 44 counts charging Forgery in the Second Degree and the single count of Grand larceny in the Second Degree.

In a case where herein defendant was the defendant, the Court dismissed a single count indictment for Second Degree Forgery with respect to one check in the amount of $250.00. That check had been made payable to a person by the defendant who endorsed with that name and then his own. Larceny was not charged.

The Court pointed out in that opinion that defendant could create a fictitious payee, intending him to have no interest in the check and then negotiate it as a bearer instrument. There was no evidence in that case that the defendant had the intent to defraud, deceive or injure, necessary elements of Forgery in the Second Degree.

More recently, the Appellate Division, 2nd Department, in a case, the Court held that a person may assume a name for the purpose of obtaining a driver’s license and set aside a conviction of criminal impersonation.

The instant indictment differs from the facts resulting in my earlier decision in a case and from the ruling of a later case.

The defendant is now charged with issuing 32 checks. The checks were represented by defendant to be for the purchase of “screening wash” purportedly delivered from a truck on a Saturday when the plant was not operating. Another check was purportedly for services rendered by a screen maker. No invoices were found to support the alleged purchases or payments. Nor was any person or firm located who might have been the legitimate recipient of the checks.

In fact the testimony is that each of the checks was endorsed by the criminal defendant and then cashed by him. The defendant is said to have used different handwriting for each of the three sets of endorsements in what may be construed as a deliberate effort to conceal his interest in the checks.

A jury could conclude that there was more to this case than the use of fictitious payees.

The evidence presented to the Grand Jury could lead to the conclusion that the defendant had the intent to defraud, deceive or injure, and that in pursuance of that purpose he forged the endorsements which appear thereon. It cannot necessarily be assumed that the defendant was merely creating a fictitious payee without intending a criminal design.

The Court dismissed the motion to dismiss the indictment. With respect to so much of the omnibus motion to which the District Attorney has not consented, item 3(e) is granted, items 3(g) and 3(h) are denied.

In another Criminal action, an Appeal was filed by the People from so much of an order of the County Court, Suffolk County, as, upon defendant’s motion, (1) vacated a judgment of the same court, rendered in November 1983, convicting defendant of attempted grand larceny in the second degree, upon his plea of guilty, and imposing sentence; and (2) dismissed those counts of the indictment which charged defendant with the crime of offering a false instrument for filing in the first degree.

A Suffolk County Criminal attorney said that Defendant’s argument that his judgment of conviction should be vacated because the larceny count of the indictment upon which his guilty plea was predicated was jurisdictionally defective is without merit. “The indictment charges the defendant with larceny in the language of the statute and thus cannot be said to be insufficient on its face. Any issue concerning the proper interpretation or application of the statute was forfeited by the guilty plea”. Accordingly, it was error to vacate the judgment of conviction, pursuant to CPL 440.10(1)(a), on the basis that the trial court did not have jurisdiction of the action.

The Court is not reinstating the judgment of conviction, the Court would have reinstated those counts of the indictment charging defendant with the crime of offering a false instrument for filing in the first degree.

Thus, the Court reversed the Order insofar as appealed from, on the law, defendant’s motion insofar as it sought to vacate the judgment of conviction, denied, judgment reinstated, and matter remitted to the County Court, Suffolk County, for further proceedings.

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