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The People of the State of New York v. Aubrey Gill

New York Supreme and/or Appellate Courts SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS


September 13, 2012

THE PEOPLE OF THE STATE OF NEW YORK,
RESPONDENT, --
v.
AUBREY GILL, A PPELLANT.

Appeal from three judgments of the District Court of Nassau County, First District (Anthony W. Paradiso, J.), rendered June 11, 2010.

People v Gill (Aubrey)

Decided on September 13, 2012

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

PRESENT: LaCAVA, J.P., NICOLAI and LaSALLE, JJ

Each judgment convicted defendant, upon his plea of guilty, of attempted criminal possession of a forged instrument in the third degree.

ORDERED that the judgments of conviction are reversed, on the law, and the accusatory instruments are dismissed.

Defendant was charged in three separate accusatory instruments with attempted criminal possession of a forged instrument in the third degree (Penal Law §§ 110.00, 170.20). Each information contains a conclusory allegation that defendant had knowledge that the instrument he possessed was forged. In addition, the supporting deposition states that defendant attempted to use a forged instrument. Defendant pleaded guilty to the three charges of attempted criminal possession of a forged instrument in the third degree.

We agree with defendant's contention that the three informations are jurisdictionally defective and must be dismissed because they and the supporting deposition fail to allege an essential element of the offense charged (see CPL 100.15, 100.40; People v Alejandro, 70 NY2d 133 [1987]). Penal Law § 170.20 provides that "[a] person is guilty of criminal possession of a forged instrument in the third degree when, with knowledge that it is forged . . ., he utters or possesses a forged instrument." Absent from the informations and supporting deposition are allegations which would provide reasonable cause to believe that defendant had knowledge that the instruments in question were forged. Conclusory allegations alone are insufficient (see People v Dumas, 68 NY2d 729 [1986]). Furthermore, the factual allegations contained in the supporting deposition at best would only establish utterance or presentment of one of the alleged forged instruments, which cannot, by itself, establish a presumption of its forged nature (see People v Johnson, 65 NY2d 556, 561 [1985]; People v Silberzweig, 58 AD3d 762 [2009]).

Accordingly, the judgments of conviction are reversed and the accusatory instruments dismissed.

LaCava, J.P., Nicolai and LaSalle, JJ., concur.

Decision Date: September 13, 2012

20120913

© 1992-2012 VersusLaw Inc.



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