Defendant is charged with Forgery in the Third Degree (Penal Law §170.05), Criminal Possession of a Forged Instrument in the Third Degree (Penal Law §170.20), Theft of Services (Penal Law §165.15[3]), Criminal Trespass in the Third Degree (Penal law §140.10[a]), and Illegal Access To Transit Authority Services (TAR 1050.4[c]). Defendant moves for an order dismissing the information as facially insufficient and for other forms of relief.

CPL §§100.15 and 100.40 require that factual allegations of an evidentiary character provide reasonable cause to believe that defendant committed the offenses charged in the information and that non-hearsay factual allegations provide a prima facie case that defendant is guilty. While an information must state the crime with which defendant is charged and the facts which support those charges, the allegations need not establish guilt beyond a reasonable doubt. People v Henderson, 92 NY2d 677 (1999). Where the factual allegations give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, those allegations should be given a fair and not overly restrictive or technical reading. People v Casey, 95 NY2d 354 (2000).

The information recites the relevant statutory language for each count and alleges in non-hearsay language that a Transit Division Police Officer observed defendant inside a subway station asking people for a MetroCard. Defendant was given a MetroCard by an unidentified person who told defendant to check the bend in the card. Defendant then bent the MetroCard on the magnetic stripe in a manner which obliterates the encoded data and alters the value of the card as read by the turnstile scanner. After defendant swiped the bent card several times, the scanner permitted him access to the subway platform. Defendant afterwards stated to the Officer: "I didn't sell anything. I just wanted to get on the train."

Defendant's principle argument is that the bent MetroCard was not a "written instrument" withing the meaning of Penal Law §170.00(1). That section defines a written instrument in very broad terms as "any instrument or article, including computer data,...used for the purpose of reciting, embodying, conveying or recording information or constituting a symbol or evidence of value...which is capable of being used to the advantage of disadvantage of some person." [*2]

As several Courts have recently concluded, this definition of a written instrument is sufficiently broad to include a MetroCard within its ambit. See People v Lopez, 2005WL 1490299 ("Under this definition, a MetroCard is clearly a written instrument. It contains 'printed matter or the equivalent thereof' [computerized information], is 'used for the purpose of... conveying or recording information' [fares paid], and 'is capable of being use to the advantage...of some person' [allowing the user entry into the transit system]."); In the Matter of D.U., 192 Misc 2d 601 (" a MetroCard, an electronic ticket that is issued by the New York City Transit Authority and may be used to gain passage on subway and bus lines...which contains pre-programmed information...is a symbol of value and does constitute a written instrument.") See also People v Dixson, 2005 WL 1539246 (which implicitly held that a bent MetroCard was a written instrument).

While the three Courts cited above agreed that a MetroCard is a "written instrument", the Lopez Court, in contrast to the other two, concluded that a bent MetroCard cannot be a forged instrument under the Article 170 definitions. A forged instrument is a written instrument that has been falsely altered.(Penal Law §170.00[7]). To falsely alter a written instrument means to change it by any means "so that such instrument in its thus altered form appears or purports to be in all respects an authentic creation of or fully authorized by its ostensible maker or drawer."(Penal Law §170.00[6]). The Lopez Court reasoned that, since the New York City Transit Authority does not issue bent MetroCards to legitimate purchasers, once a card is bent, it cannot purport to be an authentic, fully authorized MetroCard because it no longer resembles the card issued by the Transit Authority.

This Court respectfully disagrees with that reasoning. While the surface of a bent MetroCard may no longer resemble the card issued by the Transit Authority, this lack of resemblance is apparent only to the human eye. However, where the "printed matter or the equivalent thereof" is computerized information embedded in the magnetic stripe of the MetroCard and is recognizable only to the electronic eye of the turnstile scanner, it is irrelevant that the bent MetroCard no longer resembles—to the human eye—an authentic MetroCard. To the eye of the scanner, the bent MetroCard "purports to be in all respects an authentic creation" of the Transit Authority.

Thus, the allegation of the bending of a MetroCard, under the circumstances alleged in the information, constitutes a prima facie case of forgery. Likewise, those allegations and the attendant inferences are sufficient to support the charge of Criminal Possession of a Forged Instrument in the Third Degree. The other three counts of the information are also sufficiently supported by the allegations in the information. Those allegations satisfy the prima facie and reasonable cause requirements of the Criminal Procedure Law for all five counts. At the pleading stage, nothing more is required. People v Allen, 92 NY2d 378 (1998).

Defendant's motion to dismiss the information for facial insufficiency is denied in its entirety. [*3]

Defendant's motion to suppress physical evidence is granted to the extent of ordering a Mapp/Dunaway hearing.

Defendant's motion to suppress statements is granted to the extent of ordering a Huntley/Dunaway hearing.

Defendant's request for a bill of particulars and his demand for discovery are granted to the extent indicated in the People's response and voluntary disclosure form.

The People are reminded of their Brady, Rosario and related obligations.

Defendant's Sandoval application is referred to the trial Court.

Defendant retains all rights to which he is entitled pursuant to CPL § 255.20.

This constitutes the decision and order of the Court.

Dated: NEW YORK, NEW YORK______________________________

AUGUST 12, 2005 Judge of the Criminal Court