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1
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OPINION
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EXTRACTED KEY WORDS
PENAL LAW FORGED INSTRUMENT FORGERY CRIMINAL POSSESSION NY2D APPELLANT CONVICTION LICENSE RESPONDENT VINCENT ASARO MEMORANDUM DISMISSING INDICTMENT CHARGING REMITTING SUPREME COURT RESENTENCING LEGALLY INSUFFICIENT SUSTAIN JOHNSON AD2D AFFD JUDGE PURPOSES PROSECUTION CANNAROZZO MERIT QUEENS COUNTY CHIEF JUDGE KAYE JUDGES BELLACOSA |
THE PEOPLE &C., RESPONDENT, v. VINCENT ASARO, APPELLANT.
94 N.Y.2d 792 (1999).
October 26, 1999
2 No. 151
(99 NY Int. 0146)
Decided October 26, 1999
_________________________________________________________________
This opinion is uncorrected and subject to revision before publication
in the New York Reports.
_________________________________________________________________
Perry S. Reich, for appellant.
Lisa Drury, for respondent.
MEMORANDUM:
The order of the Appellate Division should be modified, by dismissing
the counts of the indictment charging defendant with forgery in the
second degree and criminal possession of a forged instrument in the
second degree and remitting the case to Supreme Court for resentencing
and, as modified, affirmed.
Following a jury trial defendant was convicted of forgery in the
second degree (Penal Law § 170.10(2)), criminal possession of a
forged instrument in the second degree (Penal Law § 170.25) and
offering a false instrument for filing in the first degree (Penal
Law § 175.35) in connection with a driver's license renewal
application form in which defendant misrepresented his date of birth.
The proof in this case is legally insufficient to sustain defendant's
conviction for forgery in the second degree (Penal Law § 170.10(2);
see also, People v Johnson, 96 AD2d 1083, affd for reasons stated
below 63 NY2d 888, rearg denied 64 NY2d 647; People v Briggins, 50
NY2d 302). In completing the application, defendant signed his own
name, provided his own Social Security number, and did not represent
himself to be anyone other than Vincent Asaro. Thus defendant did not
"falsely make" the application ( see, People v Johnson, supra).
Furthermore, the evidence is legally insufficient to sustain
defendant's conviction for criminal possession of a forged instrument
in the second degree (Penal Law § 170.25). The Department of Motor
Vehicles was authorized to issue defendant the license and although
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