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Supreme Court, Appellate Division, Fourth Department, New York.

PEOPLE of the State of New York, Respondent, v. James M. WESLEY, Appellant.

Decided: April 25, 1997

Before DENMAN, P.J., and GREEN, LAWTON, BALIO and FALLON, JJ. John Tyo, Shortsville, for Appellant. R. Michael Tantillo by Jeffrey Taylor, Canandaigua, for Respondent.

Defendant was indicted on charges of forgery in the second degree (Penal Law § 170.10[1] ) and insurance fraud in the fifth degree (Penal Law § 176.10).   In accordance with his plea bargain, defendant pleaded guilty to forgery in the second degree in full satisfaction of the indictment.   He admitted that he signed an application for automobile insurance under the name “John E. Zopp”, which he testified was an assumed name he had used in California and New York.   On appeal, he contends that the acts alleged in the indictment and admitted during the plea allocution do not constitute the crime of forgery in the second degree.   We agree.

 “[T]he crime of forgery involves the making, altering, or completing of an instrument by someone other than the ostensible maker or drawer or an agent of the ostensible maker or drawer” (People v. Levitan, 49 N.Y.2d 87, 90, 424 N.Y.S.2d 179, 399 N.E.2d 1199).  Penal Law § 170.00(4) describes when a person “falsely makes” a written instrument.  “To come within the ambit of this section, it is necessary that the actual maker or drawer be someone other than the ostensible maker or drawer and that the actual maker or drawer not have the authority to act for the ostensible maker or drawer.   The section has no application where, as here, the ostensible [maker] and the actual [maker] are in fact one and the same person” (People v. Levitan, supra, at 90-91, 424 N.Y.S.2d 179, 399 N.E.2d 1199).   Because defendant is the same person as “John E. Zopp” and defendant did not intend to assume the identity of a different person by signing the name of “John E. Zopp”, his conduct does not constitute forgery in the second degree (see, People v. Johnson, 96 A.D.2d 1083, 466 N.Y.S.2d 969, affd. 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;  People v. Dunn, 185 A.D.2d 54, 592 N.Y.S.2d 299, lv. denied 81 N.Y.2d 970, 598 N.Y.S.2d 771, 615 N.E.2d 228;  People v. Jackson, 139 A.D.2d 837, 527 N.Y.S.2d 317, lv. denied 72 N.Y.2d 919, 532 N.Y.S.2d 853, 529 N.E.2d 184).

Judgment unanimously reversed on the law, plea vacated and matter remitted to Ontario County Court for further proceedings on the indictment.


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