Concurring in the result at which the majority arrives with respect to each of the four counts of the indictment, I write with particular reference to the second or uttering count, first, to outline the narrower ground of my conclusion and, second, to indicate my belief that in a proper case a charge of third degree forgery under the uttering subdivision (Penal Law, § 889, subd. 3) may, if correctly pleaded, be based upon willful counterfeiting, tampering and misrepresentation in connection with a poll designed to sample public opinion; if not in the political and electoral area, then certainly at least in the commercial field; and I would not wish our affirmance of the indictment’s dismissal in this case to be taken as precedent to the contrary.
It is common knowledge, of course, that serious and supposedly scientific surveys of this nature have become an accepted means of ascertaining consumer preferences, as an aid to profitable merchandising, to mention but one example; and I am unable *68to adopt respondent’s view that our forgery statute is so antiquated and so inflexible as to afford no protection against fraudulent and damaging interference with such procedures. Whether those .statutes may also be invoked in cases of counterfeiting and deception designed to influence, or at least to predict political action is a question which should await a case more clearly demonstrated and pleaded than is that now before us.
The “false, forged or counterfeited” paper in issue is disclosed by bill of particulars to have been a return postcard addressed to the newspaper named in the indictment, with can-celled stamp and postmark indicating that it was in fact mailed to the newspaper. Upon the card were printed the names of opposing candidates for certain city offices, certain of the names being circled with pen or pencil (later, it may legitimately be assumed); and there was also printed upon the card the following:
‘ ‘ FLUORIDATION
“Favor Fluoridation Oppose Fluoridation” the words “Oppose Fluoridation” being circled with pen or pencil.
Reducing the second count of the indictment to its simplest and basic skeletal form, it may be read to charge defendant with “ the uttering of a written communication [or] paper * * * purporting to be the authentic Ithaca Journal-News, Inc. poll return postal card sent out by the said Ithaca Journal-News, Inc. newspaper * * * knowing the same to be false, forged or counterfeited, and by which * * * uttering * * * [the] opinions * * * of other persons were misrepresented ”.
The charge in this count follows, but only in part, the language of subdivision 3 of section 889 of the Penal Law, which, when extracted and condensed, for purposes of comparison with the second count, in pertinent part defines forgery in the third degree as ‘ ‘ the uttering of any * * * written communication [or] paper * * * purporting to have been written or signed by another person [the utterer knowing the same] to be false, forged or counterfeited, and by the uttering of which the * * * opinions * * * of such other person shall be misrepresented ”.
It may well be that forgery may be constituted by the uttering of a “ paper ” in the form of a straw ballot “ purporting to have been written ”, i.e., marked, by “ another person ” or persons, in this case by members of the public whose opinions were sought, but actually marked by a person with intent to misrepresent *69such opinions or to indicate expressions of opinion when, in fact, no opinions were canvassed or expressed. In this case, however, these were not the acts -charged. Bather, the forgery alleged in the second count was that of the ‘ ‘ authentic * * * return postal card ” and not of the marking thereof; and thus the particular act charged did not misrepresent any opinion, although subdivision 3 would apply, if at all, to an uttering which should misrepresent the opinion of the person whose writing or ballot marking was forged and not that of the printer of the bogus ballot itself.
I do not agree with the view that only a ‘1 written instrument ” within the statutory definition can be the subject of an uttering under subdivision 3 nor do I agree that subdivision 3 contemplates only a signed instrument. As has been noted, subdivision 3 includes such terms as a “ written communication” or “ paper ”, purportedly “written or signed” (emphasis supplied) by another. Neither do I find warranted the respondent’s reliance on People v. Sansanese (17 N Y 2d 302) relating in part to the more serious crime of forgery in the second degree, which is concerned with more solemn documents; the indictment in that case charging, in addition, the felonious procuring of a forged instrument to be filed or recorded in a public office.
I concur in the result, however, and consequently vote to affirm.
Herlihy and Brink, JJ., concur with Staley, Jr., J.; Gibson, P. J., concurs in result, in opinion, in which Reynolds, J., concurs.
Judgment affirmed.