Criminal Possession of Forgery Devices: NY Penal Law 170.40

The New York Penal Law criminalizes certain contraband based solely on what it is irrespective of your intent to use it illegally. Similarly, the NYPD or other police department can arrest you for possessing something that is otherwise legitimate and legal but where your intent is nefarious and criminal. Criminal Possession of a Forgery Device, NY Penal Law 170.40, is such a statute that defense attorneys find themselves challenging and confronting initially as a result of an arrest but at other times after an indictment or during trial.

Definition, Elements and Examples

The law as it relates to Criminal Possession of a Forgery Device is broken down into two parts as follows:

The first, PL 170.40(1), makes it unlawful for you to possess “any plate, die or other device…[or] equipment” that you know was created to counterfeit a written instrument or to forge the same.

Fairly straight forward and routinely prosecuted in the context of fake money and counterfeit currency, a plate that is used to press and ultimately mimic a $10 or $100 bill would, by itself, constitute an illegal possession assuming you had knowledge of its character. In other words, if the press’ or device’s sole purpose or reason for which it exists is to execute forgeries, it is per se criminal and your possession of the same, with knowledge of its purpose, is as well.

The second subsection of this offense, PL 170.40(2), slightly changes the law but does so in an important way. Here, the statute requires that you have the intent to use the device, or assist another, with the goal of forging something, and that the equipment in question is capable of this objective even if its “true” use is legal.

Simply, a printing press or even a computer program that is completely legitimate can nonetheless be considered contraband and illegal if it is possessed with the goal of creating a forged instrument of some kind.

Penalty and Punishment

As a class “D” felony offense, a conviction does not require incarceration, but a judge nonetheless can sentence you to prison as part of your sentence. Even if probation, community service or another condition of your plea is mandated, a court is authorized to “lock you up” for as long as two and one third to seven years.

Other Crimes and Issues

An arrest for this felony can no doubt be the only count of a complaint or indictment but if law enforcement also finds you in the process of making the illegal instrument or in possession of the same, nothing would prevent additional charges of both Criminal Possession of a Forged Instrument and Forgery. That said, if it becomes relevant, discuss with your attorney how the law does not allow convictions for both of these two latter offenses for the same counterfeited object.

Potential Defenses

In not particular order, your counsel may believe that challenging a search warrant, if one was executed, is the best means to suppress the device that is the basis of your arrest. Separate or tied to this strategy, can you also argue you had neither actual nor constructive possession? Additionally, as to subsection one, did you have knowledge of the equipment’s illegal character and as to subsection two, was it your intent and purpose to use the regular equipment in an fraudulent capacity?

Collateral Concerns

Yes, imprisonment, even a day in jail, is a grave concern for anyone but as a foreign national, whether you hold a green card or visa or your citizenship is pending, this felony offense can lead to far worse. Potentially deemed a Crime Involving Moral Turpitude, the immigration impact of an arrest or conviction can devastate your future in the United States. Assuming you can circumvent this issue, your career and livelihood remains on the line.

Your Case, Your Defense, Your Future

Whether you are target of an investigation, awaiting arraignment before a judge or your case is slowly meandering through the criminal justice system, a conviction for having an illegal Forgery Device is indelible. Go away and disappear it will not.

Stand strong and ready yourself to challenge the prosecution’s case. Your failure to act and retain the right counsel is a mistake that will follow you forever. From mitigation to substantive defenses that avoid felonies, misdemeanors and criminal records all together, the former Manhattan prosecutors at Saland Law are ready to fight for and with you.

Call the New York criminal lawyers and former New York City prosecutors at (212) 312-7129 or contact us online today.