Charged with criminal possession of a forged instrument in the third degree, defendant moves to dismiss the information for facial insufficiency, contending that the sworn allegations fail to establish either that he knew that the instrument was forged, or that he possessed the instrument with intent to defraud, deceive or injure another. This court previously rendered an oral decision denying defendant's motion. This opinion serves to explain the basis for the court's prior ruling.

In order to be sufficient on its face, an information must provide reasonable cause to believe that the defendant has committed the crime charged and contain nonhearsay allegations that, if true, establish every element of the crime and its commission by the defendant (see CPL 100.40 [1] [b], [c]). Reasonable cause to believe that a person has committed an offense "exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it" (CPL 70.10 [2]).

A person criminally possesses a forged instrument in the third degree when, "with knowledge that it is forged and with intent to defraud, deceive or injure another, he utters or possesses a forged instrument" (Penal Law § 170.20). A forged instrument is "a written instrument which has been falsely made, completed or altered" (Penal Law § 170.00 [7]).^[FN1] A [*2]person "falsely makes" a written instrument "when he makes or draws a . . . written instrument . . . which purports to be an authentic creation of 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" (Penal Law § 170.00 [4]).

The information here alleges that on November 29, 2007, at about 8:08 p.m., on the corner of East 33rd Street and Third Avenue in Manhattan, Police Officer Christopher Williams recovered a forged New York State Identification Card from defendant's hand. Officer Williams concluded that the identification card was forged because, he alleges, the card (1) was made of hard, brittle plastic, whereas actual New York State Identification Cards are made of flexible material; (2) contained an eight-digit identification number, whereas authentic identification numbers consist of nine digits; and (3) included a hologram of the word "genuine," whereas legitimate cards contain a hologram of the logo of the State of New York.^[FN2]

In assessing the facial sufficiency of an information, the court must consider whether both the alleged facts and the reasonable inferences to be drawn from those facts, viewed in the light most favorable to the People, would, if true, establish every element of the crime charged. Of course, an accusatory instrument need not establish proof beyond a reasonable doubt (see People v Henderson, 92 NY2d 677, 680 [1999]; see also People v Jennings, 69 NY2d 103, 115 [1986]); rather, as relevant here, the facts alleged in the information must, if true, provide reasonable cause to believe that the defendant acted with the requisite mens rea (see People v Inserra, 4 NY3d 30 [2004] [allegation that defendant's name appeared on signature line of an order of protection held sufficient to allege element — essential to charge of criminal contempt — that defendant had knowledge of the order's contents]).

To be sure, when a forgery is not readily apparent to the untrained eye, "knowledge of the forged nature of [an] instrument will not be imputed to a person solely by reason of possession or presentation of said instrument" (People v Johnson, 65 NY2d 556, 561 [1985]; see also Penal Law § 15.05 [2] [a person "acts knowingly with respect to conduct or to a circumstance described by a statute defining an offense when he is aware that his conduct is of such nature or that such circumstance exists"]). Thus, "[t]he mere negotiation or utterance of a forged instrument cannot, of itself, establish a presumption that defendant had knowledge of the forged nature of the instrument"; rather, "[g]uilty knowledge of forgery may be shown circumstantially by conduct and events" (Johnson, 65 NY2d at 561 [citations omitted]). [*3]

When a person undertakes to obtain a false identification card,^[FN3] it is inconceivable that the very person in whose name the card has ostensibly been issued would not know that the card is a forgery.^[FN4] After all, the instrument, if legitimate, is one for which the bearer would have had to apply, and which he would have received himself from an agency of state government. That the ostensible bearer must therefore know that such a card is forged is "an elemental inference based on common experience and all but universal probabilities" (People v Reisman, 29 NY2d 278, 285 [1971]; cf. People v Fletcher, 29 AD2d 838, 838 [4th Dept 1968] ["Where the utterer and the forger of the instrument are one and the same person his knowledge of the forgery is obvious" (citation omitted)]). At a minimum, possession under these circumstances provides reasonable cause to believe that defendant had knowledge of the forged nature of his own fake identification card.

Moreover, that defendant possessed the forged instrument with intent to defraud, deceive or injure another can be reasonably inferred from the facts alleged. Intent, of course, "is the product of the invisible operation of [the] mind" (People v Samuels, 99 NY2d 20, 24 [2002] [internal quotation marks and citation omitted]), and is therefore incapable of direct proof in the absence of an express declaration by the perpetrator or admission by the defendant. Typically, intent must "be inferred from the act itself . . . [or] from the defendant's conduct and the surrounding circumstances" (People v Bracey, 41 NY2d 296, 301 [1977] [internal quotation marks and citations omitted]; see also People v Smith, 79 NY2d 309, 315 [1992]).

A New York State Identification Card serves no purpose other than to establish the identity of the holder, including his or her name, address, and date of birth. And the need for such proof arises only when the bearer seeks to obtain some privilege, right, benefit or entitlement. Thus, for example, a valid New York State Identification Card can provide proof that the holder is above the legal drinking age, thereby enabling entry into a bar or nightclub (see Alcoholic Beverage Control Law § 65-b [2] [b] [limiting forms of documentation that may be lawfully accepted as written evidence of age for the purchase of an alcoholic beverage to include, among others, valid driver license or non-driver state identification card]; see also Alcoholic Beverage Control Law § 65-b [2] [a] [unlawful for a person under 21 years of age to present or offer "any written evidence of age which is false, fraudulent or not actually his own, for the purpose of purchasing or attempting to purchase any alcoholic beverage"]). In addition, "[m]any residents rely on a New York State . . . Non-Driver Photo Identification Card as secure identification for check cashing or credit purchases" (New York State Department of Motor Vehicles, Non-Driver Photo IDs — Secure Proof for Non-Drivers [2008]). Further, a valid New York State Identification Card may be used to gain access to federal facilities, board commercial aircraft, and enter nuclear power plants (see REAL ID Act of 2005, Pub L 109-13, §§ 201 [2], [*4][3], 202 [a] [1], 119 Stat 231, 312 [codified at 49 USC § 30301 note]; 6 CFR part 37).

Indeed, there is simply no reason to obtain or possess a New York State Identification Card unless one intends to use it in order to demonstrate one's identity. And there is, therefore, no reason to knowingly possess a forged state identification card unless one intends to present it as real — in other words, to defraud or deceive another (cf. People v Santos, 17 Misc 3d 520, 529 [2007] ["To claim otherwise flies in the face of common sense and sound reason, inasmuch as there would seem to be no innocent inference that can reasonably be drawn from such conduct"]). To the extent that People v Hellwig (18 Misc 3d 1143[A], 2008 NY Slip Op 50417[U] [Crim Ct, NY County 2008]) holds to the contrary, this court respectfully declines to follow it.

Moreover, in this case the information additionally alleges that the forged identification card was recovered not merely from defendant's person, but from his hand. That defendant was holding the forged instrument in his hand at the time it was seized in itself provides reasonable cause to believe that he intended to present it to the arresting officer, and thereby to deceive him.

Finally, even if defendant could posit some unlikely yet theoretically possible, law-abiding purpose for which one might seek to obtain a false state identification card — perhaps as a novelty item or joke — the accusatory instrument would still be facially sufficient."So long as the factual allegations of an information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading" (People v Casey, 95 NY2d 354, 360 [2000]). The most reasonable inference to be drawn from the knowing possession of a forged state identification card is that the possessor intended to use it to falsely establish identity. Although conduct equally compatible with guilt or innocence will not supply reasonable cause (see People v Carrasquillo, 54 NY2d 248, 254 [1981]), the People need not, for pleading purposes, disprove every conceivable defense (see People v Deegan, 69 NY2d 976, 979 [1987] ["That other, innocent inferences could possibly be drawn from the facts is irrelevant on this pleading stage inquiry"]; People v Mercado, 68 NY2d 874, 877 [1986] ["Human imagination might conjure up possible innocent behavior ... but that cannot be the test of (reasonable) cause"]; cf. People v Santana, 7 NY3d 234, 237 [2006]; see also People v Kohut, 30 NY2d 183 [1972]).

Accordingly, defendant's motion to dismiss must be denied.