PEOPLE v. ASARO (1999)

OPINION OF THE COURT

The order of the Appellate Division should be modified, by dismissing the counts of the indictment charging defendant with forgery in the second degree and criminal possession of a forged instrument in the second degree and remitting the case to Supreme Court for resentencing and, as modified, affirmed.

Following a jury trial defendant was convicted of forgery in the second degree (Penal Law § 170.10[2] ), criminal possession of a forged instrument in the second degree (Penal Law § 170.25) and offering a false instrument for filing in the first degree (Penal Law § 175.35) in connection with a driver's license renewal application form in which defendant misrepresented his date of birth.

 The proof in this case is legally insufficient to sustain defendant's conviction for forgery in the second degree (Penal Law § 170.10[2];  see also, People v. Johnson, 96 A.D.2d 1083, 466 N.Y.S.2d 969, affd. for reasons stated below 63 N.Y.2d 888, 483 N.Y.S.2d 201, 472 N.E.2d 1029, rearg. denied 64 N.Y.2d 647, 485 N.Y.S.2d 1030, 474 N.E.2d 261;  People v. Briggins, 50 N.Y.2d 302, 428 N.Y.S.2d 909, 406 N.E.2d 766).   In completing the application, defendant signed his own name, provided his own Social Security number, and did not represent himself to be anyone other than Vincent Asaro.   Thus defendant did not “falsely make” the application (see, People v. Johnson, supra ).

 Furthermore, the evidence is legally insufficient to sustain defendant's conviction for criminal possession of a forged instrument in the second degree (Penal Law § 170.25).   The Department of Motor Vehicles was authorized to issue defendant the license and although the license contained false information, that did not affect the genuineness of the document for purposes of a prosecution under Penal Law § 170.10(2) and § 170.25 (see, People v. Cannarozzo, 62 A.D.2d 503, 504-506, 405 N.Y.S.2d 528, affd. for reasons stated below 48 N.Y.2d 687, 421 N.Y.S.2d 882, 397 N.E.2d 394).

We have considered defendant's remaining arguments and find them to be without merit.

Order modified, etc.

MEMORANDUM.

Chief Judge KAYE and Judges BELLACOSA, SMITH, LEVINE, CIPARICK, WESLEY and ROSENBLATT concur in memorandum.