
    The People of the State of New York, Respondent, v Bel Air Equipment Corporation and James F. Macri, Appellants.
    Argued January 13, 1976;
    decided February 26, 1976
    
      
      Morton N. Wekstein for appellants.
    I. The indictment failed to plead the commission of any crime in the third count of the indictment, the People have failed to make out a prima facie case with respect to the third count of the indictment, and the papers purported to have been filed under the allegations of the third count of the indictment are not papers which are an "instrument” within the meaning of law and their delivery to the highway department was not a filing within the meaning of the law, and defendants did not possess the guilty knowledge and did not harbor the wrongful intent necessary to a finding of guilt on this count. (People v Sansanese, 17 NY2d 302; People v Gulisano, 57 Misc 2d 243; Matter of Stanley v Board of Appeals of Vil. of Piermont, 168 Misc 797; Matter of Lance, 55 Misc 13.) II. The People failed to make out a prima facie case under count 1 of the indictment; the conviction of defendants was accomplished by adoption, as the law of the case, of the erroneous interpretation of the regulations by a lay witness; the meaning of the regulations was not charged to the jury by the trial court, and the jury applied to the facts, in place of law, the erroneous misinterpretation of law authored by the lay witness. (Bank of China v Morse, 168 NY 485; Jongebloed v Erie R. R. Co., 297 NY 534; Moscow Fire Ins. v Bank of N. Y. & Trust Co., 280 NY 286; Matter of Masocco v Schaaf, 234 App Div 181; People ex rel. Jordan v Martin, 152 NY 311; Matter of Lawson v Cornelius, 35 Misc 2d 816; McMahon v Silverman, 283 App Div 1086; Matter of Mendelson v Finegan, 253 App Div 709; People v Trumid Constr. Co., 42 AD2d 873.) III. The court below found that defendants committed what are in law different acts than those found to have been committed by the jury, and in effect therefor, affirmed a conviction which was never found by the trial court and jury. IV. The court below was in error in its finding that the theory of the prosecution is that defendants violated a "policy” and "practice” of the Department of Transportation. V. The finding by the court below that the rules and regulations of the Department of Transportation are "confusing” requires a finding of not guilty as a matter of law and as a matter of constitutional necessity. (People v Berck, 32 NY2d 567, 414 US 1093; Papachristou v City of Jacksonville, 405 US 156; People v Diaz, 4 NY2d 469; People v Munoz, 9 NY2d 51; People v Kahan, 15 NY2d 311; People v Shifrin, 301 NY 445; People v Vetri, 309 NY 401; People v Caswell-Massey Co., 6 NY2d 497; People v Firth, 3 NY2d 472; People v Dioguardi, 8 AD2d 426, 8 NY2d 260.) VI. The court below has misconceived the meaning and intent of section 110.10 of the Penal Law and has misunderstood its effect upon the facts in the case at bar. (People v Lo Pinto, 27 AD2d 63; People v Clurman, 290 NY 242; People v Knapp, 206 NY 373; Smith v California, 361 US 147; Lambert v California, 355 US 225.) VII. Both counts of the indictment of which defendants stand convicted are insufficient in law. (People v Corbalis, 178 NY 516; People v Zambounis, 251 NY 94; People v Schultz, 301 NY 495; People v Grogan, 260 NY 138; People v McGuire, 5 NY2d 523; People v Bogdanoff, 254 NY 16; People v Ercole, 308 NY 425; People v Richardson, 64 Misc 684.) VIII. The action of the State Department of Transportation constituted a violation of the contract clause contained in section 10 of article I of the United States Constitution. (Bouie v City of Columbia, 378 US 347; Ross v Oregon, 227 US 150.) IX. Prejudicial error was committed when the People offered evidence which was received as to the issuance of and execution of a search warrant against defendants. X. Defendants were deprived of the constitutional right to the effective assistance of counsel. (People v Bennett, 29 NY2d 462; People v Sarmiento, 40 AD2d 562.)
    
      Carl A. Vergari, District Attorney (James M. Rose of counsel), for respondent.
    I. A duly certified State of New York standard voucher is an instrument within the meaning of section 175.35 of the Penal Law (offering a false instrument for filing). (People v Gottlieb, 36 NY2d 629; People v Sansanese, 17 NY2d 302; People v Gulisano, 57 Misc 2d 243; Mutual Ventures v Barondess, 17 Misc 2d 483; People ex rel. Smith v Foster, 27 Misc 576; Matter of Stanley v Board of Appeals of Vil. of Piermont, 168 Misc 797; Matter of Worden v State of New York, 2 Misc 2d 955; Matter of Samuels v Laufer, 28 Misc 2d 208.) II. The court below properly found that defendants attempted to commit grand larceny, second degree. (People v Smith, 5 Parker Cr Rep 490.) III. The court’s below determination that an interpretation of the Department of Transportation’s regulations is not necessary to adjudicate this case is correct, and renders several of appellants’ arguments irrelevant. IV. The State Department of Transportation has not violated the contract clause of section 10 of article I of the United States Constitution. (House v Mayes, 219 US 270; St. Louis Poster Adv. Co. v St. Louis, 249 US 269.) V. It was proper to permit testimony about the execution of a search warrant. (People v Bryant, 31 NY2d 744; People v Vidal, 26 NY2d 249.) VI. Defendants were afforded adequate counsel. (People v LaBree, 34 NY2d 257; People v Brown, 7 NY2d 359; United States v Russell, 411 US 423; People v Kingston, 8 NY2d 384.) VII. The indictment sufficiently stated the crimes charged. (People v Bryant, 31 NY2d 744; People v Corbalis, 178 NY 516; People v Weiss, 158 App Div 235, 210 NY 546; People v Trainor, 57 App Div 422; People v Cavanagh, 157 App Div 224; People v Hoyt, 145 App Div 695, 205 NY 533; People v Abelson, 162 App Div 674.)
    
      Louis J. Lefkowitz, Attorney-General (Jules E. Orenstein, Samuel A. Hirshowitz and Elliott S. Greenspan of counsel), amicus curiae.
    
    The false written voucher and annexed bills offered for filing by appellants with intent to defraud the State are written instruments within the meaning of section 175.35 of the Penal Law. (People v Sansanese, 17 NY2d 302; People v Gottlieb, 36 NY2d 629; People ex rel. Greene v Swasey, 122 Misc 388; People v Spina, 14 AD2d 505; People v Licausi, 23 Misc 2d 75; People v Coombs, 36 App Div 284, 158 NY 532; People v Sullivan, 275 App Div 956, 300 NY 696, 340 US 815; People v Cantor, 134 Misc 357; People v Gould, 41 Misc 2d 875; People v Kirk, 62 Misc 2d 1078, 34 AD2d 738.)
    
      Charles J. Hynes, Deputy Attorney-General (T. James Bryan and Hillel Hoffman of counsel), for Health and Social Services, amicus curiae.
    
    A New York State standard payment voucher is an "instrument” within the meaning of section 175.35 of the Penal Law. (Matter of Sigety v Ingraham, 29 NY2d 110; People v Sansanese, 17 NY2d 302; People v Glubo, 5 NY2d 461; People v Gottlieb, 44 AD2d 587; People v Kirk, 62 Misc 2d 1078; People v Gould, 41 Misc 2d 875.)
   Jasen, J.

The principal issue raised on this appeal is whether standard State vouchers, utilized for presenting claims against the State, are instruments within the meaning of section 175.35 of the Penal Law. We conclude that these vouchers are instruments for the purposes of that statute and would affirm the order of the Appellate Division sustaining convictions under section 175.35 for filing false instruments.

In early 1971, Steve Rossini was compelled to relocate his iron works business due to the impending construction of a State highway through the location of his enterprise. The State was obligated to pay for the actual, reasonable and necessary expenses entailed by the relocation. (Highway Law, § 29, subd 13-b; § 30, subd 13-b; § 347, subd 12-b.) In pursuance of its statutory authority, the Department of Transportation promulgated a series of regulations, since revised, governing payment procedures. (17 NYCRR 51.1 et seq.) These regulations provided for the reimbursement of "actual, reasonable and necessary moving expenses.” (17 NYCRR 51.5.) Estimates and bids on each phase of the move were to be obtained from generally recognized, qualified movers. (17 NYCRR 51.5 [b].) The department would review the bids and select the lowest acceptable bid. After the removal was completed, detailed, receipted bills reflecting actual costs incurred were to be submitted. However, these bills could not be in excess of the bid previously accepted. (17 NYCRR 51.5 [c].) An additional contingency allowance was provided for, to cover the cost of such miscellaneous moving expenses as license transfers, legal fees, door lettering, changes in stationery, and the cost of disconnecting and reconnecting utilities. An allowance of 5% of the approved moving expense estimate was authorized. (17 NYCRR 51.5 [g].) Claims for payment were to be submitted in writing to the department, accompanied with information, evidence and executed vouchers. (17 NYCRR 51.3.)

Rossini was sent a packet of information with instructions to obtain three bids. He contacted James F. Macri, the president of Bel Air Equipment Corporation. Macri submitted a bid and obtained the two other necessary bids for Rossini. Maori’s bid, in the amount of $8,975, was the lowest bid and was accepted by the department. Although Rossini was still free to retain any other mover who would do the work for $8,975 or less, Rossini hired Macri and Bel Air to perform the work. When the job was completed, Macri directed Bel Air’s project manager, Edward Purves, to prepare an itemized bill that would equal the bid amount, $8,975. Macri submitted this bill to Rossini, knowing that Rossini would, in turn, file it with the State. Rossini prepared a standard State voucher and submitted it to the State, along with the itemized bill. Unbeknown to Rossini and Macri, State investigators had kept the move under surveillance, noting the manpower and equipment employed to accomplish the task. A comparison of the surveillance logs with the itemized bill submitted by Rossini revealed substantial inaccuracies in the itemized bill. The State did not pay the claim. Instead, Bel Air and Macri were indicted by the Grand Jury of Westchester County for the crimes of attempted grand larceny in the second degree, falsifying business records in the first degree and offering a false instrument for filing in the first degree. Both defendants were convicted of all charges. On appeal, the Appellate Division reversed the convictions for falsifying business records and dismissed the count of the indictment upon which those convictions were based, but affirmed the convictions for offering a false instrument for filing in the first degree and for attempted grand larceny.

The main issue for our consideration arises out of the conviction for offering a false instrument for filing in the first degree. The defendants contend that the standard State voucher is not an instrument and that the convictions, therefore, are legally insufficient. Section 175.35 of the Penal Law provides that the crime is committed when a person "knowing that a written instrument contains a false statement or false information, and with intent to defraud the state or any political subdivision thereof * * * offers or presents it to a public office or public servant with the knowledge or belief that it will be filed with, registered or recorded in or otherwise become a part of the records of such public office or public servant.”

To begin with, the term instrument is not one susceptible to an exact, precise and inelastic definition. It is employed in many different contexts in our law and its meaning shifts, sometimes subtly, sometimes not, depending on the context. (See, e.g., Penal Law, § 170.00, subd 1; § 190.45; Uniform Commercial Code, § 3-102, subd [1], par [e]; § 3-104; Personal Property Law, § 251, subd 2; General Business Law, §§ 123, 124.) While in all cases the term serves to identify a class of paper writings, the type of document sought to be included in, or for that matter excluded from, the scope of a particular statutory enactment varies with the purpose that enactment seeks to serve. It is for this reason that the reliance appellants put upon our decisions in People v Sansanese (17 NY2d 302), and, most recently, in People v Gottlieb (36 NY2d 629), is misplaced.

In People v Sansanese, a case which arose under the somewhat broader provisions of section 2051 of the former Penal Law (Hechtman, Practice Commentaries, McKinney’s Cons Laws of NY, Book 39, Penal Law, § 175.30, p 314), we held that an application for a driver’s license was not an instrument. We took cognizance of accepted dictionary definitions of the term and concluded that to apply the statute to such applications would be extending criminal liability beyond the scope of the statutory mandate. (17 NY2d, at p 306.)

People v Gottlieb involved an interpretation of the present Penal Law provision, section 175.35. We held that an application for a certificate of occupancy submitted to a city building department was not an instrument. In reaching this conclusion, we were persuaded by the rationale of the court in the earlier Sansanese case. (36 NY2d, at p 631.)

As we view it, the purpose of section 175.35 is to guard against the possibility that officers of the State or its political subdivisions would act upon false or fraudulent "instruments” that had been filed with their offices in the belief that such documents were accurate and true. Section 175.35, which creates a felony level offense, requires proof of an additional element beyond the false filing; the People must establish that the defendant intended to defraud the State.

When a claim is made that a particular document is not an instrument within the meaning of the statutory prohibition, the character and contents of the document must be closely analyzed. The court must not only ascertain whether the particular document falls within the literal scope of the statute but also whether the document is of a character that the mischief the statute seeks to prevent would ensue if the document were filed. Where both standards are satisfied, the document, of course, is an instrument as that term is utilized in this statute.

Applying these principles to the case before us, we conclude that the standard State voucher submitted to the Department of Transportation is, in effect, a non-negotiable draft and is, therefore, an instrument within the meaning of this section. The voucher directs that the State "pay to” Steven Rossini and Bel Air Equipment Corporation certain stated amounts. The document states that "The Dept, of Audit and Control of the State of New York is hereby authorized to make payments as a consideration for moving expenses and to draw separate checks in the full amount payable to” Rossini and Bel Air. Rossini demanded payment to him of the 5% contingency allowance and to Bel Air of the full $8,975 bid price. Rossini authorized the payment and certified that "the above bill is just, true and correct” and that "the balance is actually due and owing”.

The claims in the voucher were patently false. Had the State made the payments, it would have been defrauded of a substantial amount of money. The statute was designed to protect the State from exactly this sort of chicanery. The voucher was, in effect, a demand addressed to the State for the payment of money. It represented obligations allegedly owing to Rossini and Bel Air by the State. In holding, as we do, that this voucher is an instrument, we apply the statute to a situation it was intended to cover. Penal responsibility is not extended beyond the "fair scope” of the legislative mandate. (People v Gottlieb, 36 NY 2d 629, 632, supra; People v Sansanese, 17 NY2d 302, 306, supra.)

We are also satisfied that the delivery of the vouchers by Rossini to the representatives of the Department of Transportation constituted a filing of the instrument. Since Macri and Bel Air had this filing in mind when Bel Air’s employee was directed to prepare a fraudulent bill, the filing was properly attributed to them. There is no doubt that these defendants fully intended to defraud the State by having a false instrument submitted to the State for payment. The convictions for section 175.35 violations were, thus, properly obtained.

We have considered the other contentions advanced by the appellants, but find them unavailing. We would affirm the order of the Appellate Division.

Gabrielli, J. (concurring).

I, too, vote to affirm the order of the Appellate Division which sustained appellants’ convictions for offering a false instrument for filing in the first degree (Penal Law, § 175.35).

In People v Sansanese (17 NY2d 302), a case decided under the predecessor statute of section 175.35 (former Penal Law, § 2051), we pointed out that while the language used in the statute was very general, due to (p 306) "[t]he all-encompassing nature of [the statute, it] must be read * * * in the light of the extremely narrow construction which the term 'instrument’ has been otherwise given”. We then set forth the restrictive definition of the term "instrument”, viz. (p 306) "An instrument has been defined as a 'formal or legal document in writing, such as a contract, deed, will, bond, or lease’ (Black’s Law Dictionary [4th ed., 1951, p. 941]), and as a 'legal document (as a deed, will * * * ) evidencing legal rights or duties, esp. of one party to another’ (Webster, Third New Int. Dictionary [1961], p. 1172).” Noting that (p 306) "While on the one hand we must not be overly technical in interpreting penal provisions, on the other hand 'Penal responsibility * * * cannot be extended beyond the fair scope of the statutory mandate’. (People v. Wood, 8 N Y 2d 48, 51 [1960]; Penal Law, § 21)”, we held that an application for a driver’s license was not a written instrument.

In People v Gottlieb (36 NY2d 629), we observed that section 175.35 was (p 631) "similarly intended in most respects” to its predecessor and, if anything, was more limited in scope. We explicitly ré-embraced the restricted definition of written instruments developed in Sansanese and held that an application for a certificate of occupancy was not a written instrument within the meaning of section 175.35. The definition articulated in those cases is simple, straightforward and definite; and it should be applied in this case, as indeed it is, and in other cases arising under section 175.35; and I find no reason to now depart therefrom. As both Sansanese and Gottlieb make clear, an "instrument” for the purpose of section 175.35 is a formal or legal document that evidences legal rights and duties of one party to another.

Applying that definition here, it is clear that the payment voucher is an "instrument”. A voucher possesses the characteristics of a formal legal document in that it is to be subscribed by the contractor who must certify that all the statements contained therein are true and accurate; and, importantly, a voucher evidences the legal rights and duties of parties in that the contractor is required to document and certify that he has completed certain prescribed work and is now entitled to be paid by the State which must rely upon the verity of the instrument in acting upon and discharging its responsibility and obligation. As such, it may be contrasted with an application for a certificate of occupancy or a driver’s license which merely present a citizen’s request that the State take a specified action favorable to the applicant, a request which is not founded on duty nor granted as of right. Hence, I would- reaffirm the clear and unequivocal tests and determinations spelled out in Gottlieb and Sansanese, and hold that appellants offered a false written instrument for filing.

Chief Judge Breitel and Judges Jones, Wachtler, Fuchs-berg and Cooke concur with Judge Jasen; Judge Gabrielli concurs in result in a separate concurring opinion in which Chief Judge Breitel and Judges Jones, Wachtler, Fuchs-berg and Cooke also concur.

Order affirmed.  