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How to Beat a PL 170.05 Charge in New York: A Complete Guide
Facing a charge under New York Penal Law § 170.05—forgery in the third degree—can be frightening. Although it’s a misdemeanor, a conviction still carries serious consequences, including up to 1 year in jail, fines, and a permanent criminal record that can affect employment, housing, immigration status, and professional licensure.
This article explains:
- What a PL 170.05 charge requires prosecutors to prove
- Common defenses that can be raised
- How to challenge the elements of the offense
- Practical tips to improve your chances of dismissal or a favorable outcome
If you are facing a forgery charge in NYC, contact Cody Warner, P.C. for a free consultation.
1. Understanding PL 170.05: The Basics
New York Penal Law § 170.05 defines the crime of forgery in the third degree as occurring when a person, with intent to defraud, deceive, or injure another, falsely makes, completes, or alters a written instrument.
Key points include:
- Intent to defraud, deceive, or injure: The prosecution must prove a conscious objective to cause harm or gain an advantage through deception.
- “Written instrument”: The term is interpreted broadly in New York and can include paper documents, identification cards, electronic data, and other items that convey information capable of defrauding or deceiving someone.
- Class A misdemeanor: Punishable by up to one year in jail and possible fines.
Under this statute, the prosecutor must prove every element beyond a reasonable doubt for a conviction.
2. Element #1: Lack of Intent to Defraud, Deceive, or Injure
Intent is the most critical element of a forgery charge—and often the most defensible.
The prosecution must prove that you intended to cause harm or gain from the act. Simply making a mistake, misunderstanding a document, or lacking knowledge that the document was false can undermine their case.
Defense strategies:
- No intent: Show that any alteration or creation of the document was unintentional or without the conscious objective to deceive another person. For example:
- You believed the document was legitimate.
- You thought you had permission to sign or alter the instrument.
- You were acting under the belief the information was accurate.
If the factfinder cannot be convinced you had fraudulent intent, the case should fail. Many defense attorneys argue there was no intent to harm because the outcome was inconsequential or based on a misunderstanding of facts.
3. Element #2: “Written Instrument” Doesn’t Always Mean What You Think
To sustain a forgery charge, the item must qualify legally as a written instrument. In New York, this phrase has been interpreted broadly. It includes not just classic paper forms, but also:
- Identification documents (e.g., fake ID)
- Contracts, receipts, or financial statements
- Electronic data or emails used to mislead someone
- Other documents that convey information capable of deception
This breadth gives prosecutors flexibility, but it also creates opportunities for defense:
- Challenge the legal definition: Argue the item is not a “written instrument” as defined under the Penal Law.
- Insufficient evidence: Show that the prosecution’s evidence does not connect the item you allegedly created or altered with the statutory definition.
- Scientific/technical arguments: Early expert testimony can cast doubt on whether the item could realistically deceive a reasonable person.
If you can show the alleged “written instrument” isn’t legally sufficient under PL 170.05, judges or juries may dismiss or acquit.
4. Element #3: Mistaken Identity or Lack of Participation
A simple but powerful defense involves showing you weren’t the person who actually forged the document.
This might involve:
- Lack of physical evidence linking you to the instrument
- Alibi evidence showing you were elsewhere when the act occurred
- Eyewitness unreliability
- Forensic inconsistencies (e.g., handwriting or digital timestamps)
If the prosecution cannot tie you to the act of making, completing, or altering the document, the case cannot stand.
5. Technical and Procedural Defenses
Challenging the prosecution’s procedures can be just as effective as attacking the substance of the charges.
Examples include:
- Illegal search or seizure: If the document or evidence was obtained in violation of the Fourth Amendment, it may be suppressed.
- Faulty arrest procedures: Arrests without probable cause can weaken the prosecutor’s case.
- Chain of custody issues: If the evidence was mishandled, its reliability can be challenged.
- Insufficient charging papers: Flaws in the accusatory instruments can sometimes result in dismissal or amendment.
Skilled attorneys scrutinize every element of the prosecution’s case, not just the elements of the crime.
6. Leveraging Case Law: Intent Is Not Always Clear Cut
New York courts have weighed in on how intent and written instruments are applied. For example, in People v. Golb, the Court of Appeals affirmed forgery convictions for emails created to deceive recipients into believing they were authored by others. The court emphasized that courts look at whether the defendant intended to deceive recipients and cause harm or benefit.
This case demonstrates:
- That courts can interpret “written instrument” expansively.
- That intent to cause harm need not be financial; reputational injury or advantage can suffice.
Defense attorneys must carefully analyze case law to tailor arguments for your situation.
7. Plea Bargains, Adjournment in Contemplation of Dismissal (ACOD), and Other Dispositions
Not all cases go to trial. Sometimes negotiating a favorable plea or alternative disposition is the best path forward:
- ACD / Adjournment in Contemplation of Dismissal: In many courts, particularly for first-time offenders, an ACD can result in dismissal after a period of probation if you comply with conditions and stay out of trouble.
- Reduced charges: Pleading to a lesser, non-criminal offense may preserve future opportunities.
- Diversion programs: Some jurisdictions offer diversion for minor offenses that can result in case dismissal.
Good defense attorneys know the local prosecutors and judges and can often secure better outcomes than a trial.
8. Working With an Experienced Criminal Defense Lawyer
Because intent, evidence, and statutory interpretation are complex in forgery cases, hiring counsel with experience in New York forgery defenses is critical.
An attorney can:
- Evaluate the strength of the prosecution’s case
- Investigate the facts independently
- File pre-trial motions (e.g., suppressing evidence)
- Negotiate with prosecutors
- Represent you at trial if necessary
Conclusion
Beating a PL 170.05 charge is possible, but it requires a strategic defense that targets the prosecution’s ability to prove every element of the crime beyond a reasonable doubt. The most common and effective defenses focus on:
- Lack of fraudulent intent
- Challenging whether the item qualifies as a “written instrument”
- Demonstrating you were not responsible for the act
- Procedural protections such as improper searches or arrests
- Negotiating alternative outcomes where appropriate
If you’re charged under Penal Law § 170.05, contact Cody Warner, PC to develop a defense strategy.