The opinion of the court was delivered by: Graffeo, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
In this case, we are asked whether the forgery provisions of Penal Law article 170 apply to Metropolitan Transit Authority "MetroCards" that were purposefully bent in order to obtain free fares. We hold that this type of alteration can be prosecuted as a forgery.
The Metropolitan Transit Authority (MTA) is responsible for operating the mass transit system in the New York City area. In years past, a person gained access to the subways by purchasing a token and depositing it into a turnstile. This mechanical means of entry was eventually replaced with a computerized system that uses a "MetroCard" a plastic swipe card that is "read" by a scanner, embedded within a turnstile, that deducts the cost of the fare from the MetroCard.
There are two types of MetroCards: value-based MetroCards (referred to as "pay-per-ride" cards) and time-based MetroCards (referred to as "unlimited" cards). A purchaser of a time-based card is provided unlimited transportation access for a specified period of time (one day, one week or one month depending on the purchase price). The purchaser of a value card electronically stores a certain amount of money on the MetroCard that will be debited each time the user enters the MTA system. Only value cards are at issue in this appeal.
A MetroCard has two distinct magnetic fields that contain information, referred to as the primary and secondary fields. The MTA opted to use two fields so that the information encoded onto the card has "backup" storage in the event that a magnetic field is damaged. Based on the testimony of an MTA expert in this case, when a value-based MetroCard is swiped through the electronic eye of a turnstile, a computer reads both magnetic fields. If the MetroCard has monetary value remaining, the turnstile grants access and deducts the cost of the ride from the value of the card, amending the information stored on the magnetic strip to reflect the reduction in value. Thus, the expert explained, if a MetroCard is bought for $4 in value, that amount is initially encoded onto both the primary and secondary fields. When the card is first used for a $2 fare, the computer will deduct $2 from one of the fields, leaving the other field at $4. The next time the MetroCard is swiped for entry, the computer does not change the $2 field but instead reduces the $4 field to zero. Once one of the fields reads zero, the turnstile is not supposed to open. By utilizing this design methodology, which electronically leaves $2 of value on one of the magnetic fields even though the purchased value has been depleted to zero, the MTA intended to give riders "the benefit of the doubt" in the event that the magnetic strip was damaged. Thus, if the computer eye in the turnstile cannot determine the true remaining purchase value but can read the $2 backup field, one ride can be obtained.
Individuals seeking free rides on the subway soon learned how to take advantage of the system's design. By creating a small bend or crease on the section of the magnetic strip where the zero-value field is contained, a person can obliterate that information so that, when swiped, the computer is unable to detect that the MetroCard is worthless, meaning no purchase value remains. When there is a strategically-placed crease or bend on the card, the turnstile computer will read the other field containing the $2 "backup" information, which gives the user of the card a free entry to the subway. Hence, a person can bend a valueless MetroCard and swipe it once, then use or sell the free ride at a discounted price by swiping it a second time (this is referred to as "selling swipes"). The ease of this type of alteration and its popularity among individuals who are willing to defraud the MTA contributed to considerable losses of revenue for the MTA it was estimated that as of 2005, fraudulent MetroCard use was costing the MTA approximately $16 million per year, the equivalent of about 8 million ride fares.
One night in October 2005, an MTA employee working at the 125th Street station of the Lexington Avenue subway line reported that several individuals were selling MetroCard swipes. Two police officers responded and observed defendant bend MetroCards and swipe them through turnstiles, after which he solicited riders and gave them access to the subway using the bent MetroCards in exchange for money. When an officer approached defendant, he attempted to flee but was quickly apprehended with 14 MetroCards in his possession, all of which had the tell-tale crease; 11 of the cards had zero value and three of them had been successfully altered and would have each yielded a free ride. After he was in custody, defendant remarked to the police that "you better watch your back. I'm gonna serve three months. When I come out, you better just shoot me in the head, because I'm going to kill you." The reference to three months of incarceration appears to have stemmed from defendant's numerous prior convictions for MTA-related offenses and his apparent assumption that he would be facing charges under Penal Law § 165.16 a class B misdemeanor for the unauthorized sale of certain transportation services.
Instead of pursuing misdemeanor charges, the People secured an indictment charging defendant with 14 counts of criminal possession of a forged instrument in the second degree, class D felony offenses. Defendant moved to suppress the MetroCards and cash that he had possessed at the time of the arrest, along with his statement to the police. Supreme Court denied the motion. During the ensuing jury trial, defendant moved to dismiss the charges, arguing that the evidence was insufficient to prove that he committed possession of a forged instrument, and Supreme Court reserved decision.
At the close of proof, the court submitted only one count of second-degree possession of a forged instrument to the jury. The jury convicted defendant of that crime and Supreme Court subsequently denied defendant's motion to dismiss. Defendant was adjudicated a second felony offender and sentenced to 2 to 4 years of imprisonment. The Appellate Division affirmed (51 AD3d 301 [1st Dept 2008, Nardelli, J.]), a Judge of this Court granted leave (11 NY3d 738 ) and we now agree with the well-reasoned opinion of the Appellate Division.
Article 170 of the Penal Law defines the crime of forgery and related offenses. A person commits criminal possession of a forged instrument in the second 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 170.10" (Penal Law § 170.25). Section 170.10 applies to a "written instrument" that a person "falsely makes, completes or alters" and "which is or purports to be, or which is calculated to become or to represent if completed... [p]art of an issue of tokens, public transportation transfers, certificates or other articles manufactured and designed for use as symbols of value usable in place of money for the purchase of... services" (Penal Law § 170.10 ). A "written instrument" under section 170.10 includes "any instrument or article, including computer data or a computer program, containing written or printed matter or the equivalent thereof, used for the purpose of reciting, embodying, conveying or recording information, or constituting a symbol or evidence of ...