People v. Johnson

— Appeal by defendant from a judgment of the Supreme Court, Richmond County (Di Vernieri, J.), rendered April 20,1980, convicting him of grand larceny in the second degree and forgery in the second degree, upon a jury verdict, and imposing sentence. Judgment modified, on the law, by reversing the conviction of forgery in the second degree, vacating the sentence imposed thereon, and dismissing that count of the indictment. As so modified, judgment affirmed. Defendant was arrested on June 7, 1979 on a parole violation warrant by his parole officer while defendant was in an automobile that had been rented approximately six months earlier and had not been returned to the rental agency. A warrantless search of defendant’s residence by his parole officer, a police officer and several other parole officers uncovered a lease agreement for the automobile in the name of “Craig Pummill” and a driver’s license in the same name. Following his arrest, defendant was identified by the car leasing agent as the man who said he was “Craig Pummill”. Defendant was indicted and convicted, upon a jury trial, of grand larceny in the second degree and forgery in the second degree. We reverse the conviction for forgery and dismiss that count of the indictment on the ground that the proof was legally insufficient to establish the forgery (see CPL 470.20, subd 2). As here relevant, “fa] person is guilty of forgery in the second degree when, with intent to defraud, deceive or injure another, he falsely makes, completes or alters a written instrument which is * * * [a] contract” (Penal Law, § 170.10). “Falsely makes” is in turn defined as follows (Penal Law, § 170.00, subd 4): “A person ‘falsely makes’ a written instrument when he makes or draws a complete written instrument in its entirety, or an incomplete written instrument, which purports to be an authentic creation or its ostensible maker or drawer, but which is not such either because the ostensible maker or drawer is fictitious or because, if real, he did not authorize the making or drawing thereof.” (Emphasis supplied.) As defendant correctly argues, since there was no evidence that “Craig Pummill” existed other than as defendant, there could be no showing that defendant’s use of the name “Pummill” was unauthorized. Hence, the People had to prove that the “ostensible maker or drawer” of the rental agreement was “fictitious”. A “fictitious” maker or drawer under the intendment of the statute and under well-settled law, however, means more than someone who merely uses an assumed name (see People v Briggins, 50 NY2d 302). “Fictitious” signifies a maker or drawer of an instrument who represents that the name he uses is that of someone other than its creator, i.e., a person wholly separate and apart from himself, and that the fiction is intended to “defraud, deceive or injure another” (Penal Law, § 170.10). The People concede that they did not even attempt to prove that “Craig Pummill” was a fictitious person. The People maintain, however, that the use of the name by defendant was calculated to deceive or to defraud, implying thereby that the crime of forgery was made out. There was, however, no deception or *1084fraud established by the use of the assumed name, and the rental agreement was not, therefore, “falsely made” (see People v Briggins, supra; Williams, Forgery and Falsity, 1974 Grim L Rev 71, 75). Accordingly, the proof on the forgery count was legally insufficient, the conviction is reversed and that count of the indictment dismissed. We have examined defendant’s other contentions and find them to be without merit. We add only that the warrantless search satisfied the criteria outlined in People v Huntley (43 NY2d 175) and that there was a strong independent basis underlying the identification witness’ testimony. Mollen, P. J., Bracken and Rubin, JJ., concur.