Defendant moves to dismiss for facial insufficiency the charge of criminal possession of a forged instrument in the third degree. This court previously rendered an oral decision granting defendant's motion. This opinion serves to explain the basis for the court's prior ruling.

In order to be sufficient on its face, an information must provide reasonable cause to believe that the defendant has committed the crime charged and contain nonhearsay allegations that, if true, establish every element of the crime and its commission by the defendant (see CPL 100.40 [1] [b], [c]). Reasonable cause to believe that a person has committed an offense "exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it" (CPL 70.10 [2]).

A person criminally possesses a forged instrument in the third degree when, "with knowledge that it is forged and with intent to defraud, deceive or injure another, he utters or possesses a forged instrument" (Penal Law § 170.20). A forged instrument is "a written instrument which has been falsely made, completed or altered" (Penal Law § 170.00 [7]).^[FN1] A person "falsely makes" a written instrument "when he makes or draws a . . . written instrument [*2]. . . which purports to be an authentic creation of its ostensible maker or drawer, but which is not such . . . because the ostensible maker or drawer . . . did not authorize the making or drawing thereof" (Penal Law § 170.00 [4]).

The accusatory instrument originally filed in this case alleged that an identified police officer recovered five forged twenty-dollar bills from defendant's wallet, and that the police, based on training and experience, recognized the bills as counterfeit because the ink on the bills was of poor quality and non-reflective, the bills contained no watermarks, and "the paper and printing did not resemble a legitimate bill." Implicitly conceding that these allegations were insufficient to establish either defendant's knowledge that the instruments were forged or his intent to defraud, deceive or injure another, the People, in response to defendant's motion to dismiss, filed a superseding information containing the additional allegation that defendant admitted, "At first I did not realize it was counterfeit but then I looked at my other money and realized it was. I did not do anything about it." Relying primarily on this court's decision in People v Barona (19 Misc 3d 1122[A], 2008 NY Slip Op 50814[U] [Crim Ct, NY County 2008]), the People contend that the superseding information establishes both knowledge and intent.^[FN2]

In assessing the facial sufficiency of an information, the court must consider whether both the alleged facts and the reasonable inferences to be drawn from those facts, viewed in the light most favorable to the People, would, if true, establish every element of the crime charged. Of course, an accusatory instrument need not establish proof beyond a reasonable doubt (see People v Henderson, 92 NY2d 677, 680 [1999]; see also People v Jennings, 69 NY2d 103, 115 [1986]). Rather, as relevant here, the facts alleged in the information must, if true, provide reasonable cause to believe that the defendant acted with the requisite mens rea (see People v Inserra, 4 NY3d 30 [2004] [allegation that defendant's name appeared on signature line of an order of protection held sufficient to allege element — essential to charge of criminal contempt — that defendant had knowledge of the order's contents]).

"[K]nowledge of the forged nature of [an] instrument will not be imputed to a person solely by reason of possession or presentation of said instrument" (People v Johnson, 65 NY2d 556, 561 [1985]; see also Penal Law § 15.05 [2] ["A person acts knowingly with respect to conduct or to a circumstance described by a statute defining an offense when he is aware that his conduct is of such nature or that such circumstance exists"]). But while "[t]he mere negotiation or utterance of a forged instrument cannot, of itself, establish a presumption that defendant had knowledge of [its] forged nature," guilty knowledge of forgery "may be shown circumstantially by conduct and events" (Johnson, 65 NY2d at 561 [citations omitted]).

Defendant's own admission that he eventually "realized" that the bills were counterfeit plainly suffices to establish knowledge (see People v Reisman, 29 NY2d 278, 285 [1971] ["Knowledge . . . may be shown circumstantially by conduct or directly by admission, or indirectly by contradictory statements from which guilt may be inferred" (citations omitted)]). Intent, however, is another matter (see People v Bailey, 13 NY3d 67, 71 [2009] ["knowledge [*3]alone is not sufficient to hold defendant criminally liable for possessing a forged instrument"]).

In Barona, a forged New York State Identification Card, issued in his own name, was recovered from the defendant's hand. In rejecting the defendant's challenge to the sufficiency of the allegations proffered to establish intent to defraud, deceive or injure another (as well as knowledge), this court concluded that because "a New York State Identification Card serves no purpose other than to establish the identity of the holder, including his or her name, address, and date of birth," and because "the need for such proof arises only when the bearer seeks to obtain some privilege, right, benefit or entitlement," there "is simply no reason to obtain or possess a New York State Identification Card unless one intends to use it in order to demonstrate one's identity. And there is, therefore, no reason to knowingly possess a forged state identification card unless one intends to present it as real — in other words, to defraud or deceive another" (Barona, 19 Misc 3d 1122[A], 2008 NY Slip Op 50814[U], *3-*4; see also People v Dallas, 46 AD3d 489, 491 [1st Dept 2007] ["only conceivable purpose" for possession of "a set of documents creating two different identities for the same person" was that "they would be passed off as the genuine articles in order to deceive or defraud anyone to whom they were presented, and there would be no reason for anyone to buy them without planning to use them in that manner"], lv denied 10 NY3d 809 [2008]).

Here, by contrast, there are simply no allegations from which a reasonable inference of intent might be drawn. Intent, of course, "is the product of the invisible operation of [the] mind" (People v Samuels, 99 NY2d 20, 24 [2002] [internal quotation marks and citation omitted]), and is therefore incapable of direct proof in the absence of an express declaration by the perpetrator or admission by the defendant. Typically, intent must "be inferred from the act itself . . . [or] from the defendant's conduct and the surrounding circumstances" (People v Bracey, 41 NY2d 296, 301 [1977] [internal quotation marks and citations omitted]; see also People v Smith, 79 NY2d 309, 315 [1992]).

The only evidentiary allegation relevant to the forged-instrument charge, beyond the mere fact of possession, is defendant's admission that he ultimately came to know of the counterfeit nature of the money in his wallet but "did not do anything about it."^[FN3] The People argue that upon discovery of its counterfeit nature, defendant should have divested himself of the money, or turned it in to the police or the Secret Service (see United States Secret Service, Counterfeit Division, http://www.ustreas.gov/usss/counterfeit.shtml [accessed November 2, 2009] ["The Secret Service has exclusive jurisdiction for investigations involving the counterfeiting of United [*4]States obligations and securities," including "U.S. currency and coins"]; see also 18 USC § 3056 [b] [2] [Secret Service authorized to detect and arrest any person who violates "any of the laws of the United States relating to coins, obligations, and securities of the United States"]), and that his failure to do so demonstrates his intent to spend the money or to use it in some way to defraud or deceive.^[FN4]

While defendant's failure to take such affirmative action may well have been foolish, it does not establish that he intended to pass the counterfeit bills. Nor is it inherently suspicious that once he discovered that the money was spurious, he returned it to his wallet (cf. Bailey, 13 NY3d at 72 [rejecting argument that "the requisite intent for possessing a forged instrument can be drawn from defendant's presence in a shopping district, his (knowing) possession of counterfeit bills, and his larcenous intent"]). If a person, upon pulling money out of his wallet, discovered, to his surprise and disappointment, that he had been cheated out of $100, and that the twenty-dollar bills on whose value he had been counting were in fact worthless, he would, if he were not going to throw the bills away, tend naturally to stuff them back into the wallet, irrespective of whether or not he was going to try to fraudulently pass his loss on to someone else.^[FN5]

To be sure, the People need not, for pleading purposes, disprove every conceivable defense (see People v Deegan, 69 NY2d 976, 979 [1987]; People v Mercado, 68 NY2d 874, 877 [1986]), but conduct equally compatible with guilt or innocence cannot supply reasonable cause (see People v Carrasquillo, 54 NY2d 248, 254 [1981]). In the absence of evidentiary facts, based on either an admission, an inconsistency or conduct, that defendant planned or attempted to spend the counterfeit money, criminal intent cannot reasonably be inferred (see People v Brunson, __ AD3d __, 2009 NY Slip Op 07746 [1st Dept 2009]); cf. People v Washington, 299 AD2d 286, 286-287 [1st Dept 2002] [intent to defraud or deceive another could be reasonably inferred from, among other things, defendant's inconsistent statements about forged credit card]).^[FN6] [*5]

Accordingly, defendant's motion to dismiss the charge of third-degree criminal possession of a forged instrument must be granted.^[FN7] Of course, it may well be that additional facts exist on which a legally sufficient forged-instrument charge may be premised; the People remain free either to file a superseding information or to indict defendant ^[FN8] within the time available to them under CPL 30.30 (1) (see People v Nuccio, 78 NY2d 102 [1991]; People v Sinistaj, 67 NY2d 236, 239-240 [1986]; People v Osgood, 52 NY2d 37 [1980]).