The defendant, Daniel Hellwig, is charged with one count of Criminal Possession of a Forged Instrument in the Third Degree (Penal Law §170.20). He moves, inter alia, to dismiss the accusatory instrument for facial insufficiency (see CPL 100.40, 170.30). For the reasons that follow, the defendant's motion to dismiss for facial insufficiency is granted.

The instant information alleges that on October 13, 2007, at 5:42 p.m., Detective Robert Numssen recovered a forged Michigan State Identification card from the defendant's pants pocket. Further, the information alleges that the identification card was forged based on the detective's training and prior experience as a police officer, and that the card contained a blue hologram rather than the requisite state seal hologram.

To be sufficient on its face, an information must provide reasonable cause to believe that the defendant committed the offense, and the non-hearsay allegations must establish, if true, every element of the offense charged (see People v McNamara, 78 NY2d 626, 629 [1991], citing CPL 100.40[1][b],[c]; People v Alejandro, 70 NY2d 133, 136-137 [1987]). Mere conclusory allegations are insufficient (see People v Dumas, 68 NY2d 729 [1986]) and a purported [*2]information which fails to meet these requirements is fatally defective (see People v Alejandro, supra at 136). An information should be given a non-technical reading so long as it gives the defendant sufficient notice to prepare a defense and will prevent him from being tried twice for the same crime (see People v Casey, 95 NY2d 354, 360 [2000]).

To be facially sufficient, an information charging a defendant with Criminal Possession of a Forged Instrument in the Third Degree must allege "that the instrument in question was forged, that the defendant possessed the forged instrument, that the defendant knew it was forged and that he intended to deceive, defraud or injure another" (People v Roa, 8 Misc 3d 333, 335 [Crim Ct, NY County 2005]).Allegations that a defendant possessed or presented a forged instrument, without more, will not impute knowledge to the defendant, but guilty knowledge may be shown circumstantially through conduct and events(see People v Johnson, 65 NY2d 556, 561 [1985]).Intent to defraud, deceive or injure another may be inferred from the factual allegations in the accusatory instrument (see People v Mansilla, 13 Misc 3d 1213[A] [Crim Ct, NY County 2006]).

Defense counsel correctly contends that the information is facially insufficient and must be dismissed since it fails to set forth any factual allegations regarding the defendant's knowledge that the identification card was forged. Generally, possession on one's person permits the inference that a person knows what he/she possesses (see People v Reisman, 29 NY2d 278, 285 [1971]; People v Mansilla, supra). However, when the difference between a forged instrument and a genuine instrument, based upon an altered hologram, is not readily apparent to a layperson, it is impermissible to infer guilty knowledge unless the People allege additional facts (see People v Roa, supra at 336), such as the circumstances surrounding the defendant's possession or whether the defendant engaged in any affirmative acts with said card.

Although defense counsel did not argue that the information fails to set forth any allegations that the defendant intended to defraud, deceive or injure another, the court finds that dismissal is also warranted on this ground since the People fail to establish the defendant's intent (see People v Rosado, 192 Misc 2d 184, 185 [Crim Ct, NY County 2002] [court is authorized to dismiss complaint for facial insufficiency on grounds not raised in defense motion papers]). Had the information alleged that the defendant presented the forged identification card to the detective to identify himself, or engaged in some other affirmative act (see, e.g. People v Mansilla, supra [forged resident alien cards presented to police officer as identification]; People v Chive, 189 Misc 2d 653, 658 [Crim Ct, Queens County 2001] [defendant presented Thailand passport containing defendant's photo and name of different person to officer as identification after vehicle in which she was a passenger was stopped for a traffic infraction]), reasonable cause to believe that the defendant committed the instant offense would exist. However, the information is devoid of any such facts.

Based on the foregoing, the defendant's motion to dismiss for facial insufficiency is granted, and the remaining branches of the defendant's motion are denied as moot.

Dated:New York, New York

March 6, 2008

Judge of the Criminal Court

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