Tonight's weird legal case involves those ubiquitous denizens of the New York City transit system - the swipe sellers. Anyone who has ridden the subway in New York City has been at some time or another been approached by someone who has offered to sell a swipe on their MetroCard in exchange for $1, a price that is half the actual entry fee. Many times, the MetroCard itself is not legitimate, as the seller has bent it in the precise way to fool the turnstile into allowing entry, despite the fact that the card has a zero balance. Tonight's weird legal case involves the criminal prosecution of one such swipe seller and the ingenious way that he attempted to escape criminal liability.
In People v. Mattocks, the Appellate Division, First Department dealt with the appeal from a conviction on the charge of criminal possession of a forged instrument in the second degree (a felony in New York State). Mattocks was accused of using MetroCards with a zero balance that were bent in such a way that the turnstile was tricked into allowing an additional entry. The testimony of the officers who observed him in the subway station indicated that he had been seen selling two or three swipes and that at the time of his arrest, Mattocks possessed three dollars and fourteen bent MetroCards.
After he was convicted at the trial level, Mattocks appealed, arguing that the prosecutor had not proven that that the bent MetroCards found in his possession met the statutory definition of a forged instrument. Central to his argument was that a bent MetroCard no longer resembles an authentic MetroCard to the human eye and, thus, does not replicate the original in all ways.
Why was the resemblance significant? Because the Penal Law defines a forged instrument as a "written instrument which has been falsely made, completed or altered." Since Mattocks neither made nor completed the MetroCard, the prosecutor needed to prove that the card was "altered." Mattocks attacked this theory, asserting that under Penal Law §170.00(6):
In People v. Mattocks, the Appellate Division, First Department dealt with the appeal from a conviction on the charge of criminal possession of a forged instrument in the second degree (a felony in New York State). Mattocks was accused of using MetroCards with a zero balance that were bent in such a way that the turnstile was tricked into allowing an additional entry. The testimony of the officers who observed him in the subway station indicated that he had been seen selling two or three swipes and that at the time of his arrest, Mattocks possessed three dollars and fourteen bent MetroCards.
After he was convicted at the trial level, Mattocks appealed, arguing that the prosecutor had not proven that that the bent MetroCards found in his possession met the statutory definition of a forged instrument. Central to his argument was that a bent MetroCard no longer resembles an authentic MetroCard to the human eye and, thus, does not replicate the original in all ways.
Why was the resemblance significant? Because the Penal Law defines a forged instrument as a "written instrument which has been falsely made, completed or altered." Since Mattocks neither made nor completed the MetroCard, the prosecutor needed to prove that the card was "altered." Mattocks attacked this theory, asserting that under Penal Law §170.00(6):
"[a] person falsely alters' a written instrument when, without the authority of
anyone entitled to grant it, he changes a written instrument, whether it be in
complete or incomplete form, by means of erasure, obliteration, deletion,
insertion of new matter, transposition of matter, or in any other manner, 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."
Based on this definition, Mattocks argued that the MetroCards in question do not fit within the above statutory definition because a bent MetroCard no longer resembles an authentic MetroCard to the human eye.
Unfortunately for Mattocks, the First Department thought differently, stating that:
Unfortunately for Mattocks, the First Department thought differently, stating that:
The flaw in defendant's argument, however, is that it is not whether the
MetroCards appear authentic to the human eye that is pivotal herein but, rather,
whether the card appears authentic to the electronic eye of the scanning device
embodied in the subway turnstiles. Thus, to be "falsely altered," a written
instrument need not be perfectly altered. Here, the magnetic strip incorporating
the computer data on certain MetroCards, which contained no valid fare, were
altered so that the cards would appear, and be read, as authentic for the
admission of a rider by the turnstile computers. Thus, the MetroCards in
question, in their altered form, "appear[] or purport[] to be in all respects an
authentic creation of or fully authorized by its ostensible maker or drawer."
You can find the decision at http://www.nycourts.gov/reporter/3dseries/2008/2008_03107.htm#2CASE.
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