Defendants are charged with Petit Larceny (PL Sec. 155.25), five counts of Criminal Possession of a Forged Instrument in the Third Degree (PL Sec. 170.20), and Obstructing Governmental Administration in the Second Degree (PL Sec. 195.05), all Class A misdemeanors.

By motion dated October 13, 2005, Defendant Griffin seeks the dismissal of all charges contained in the Criminal Court Complaint, asserting that the People's complaint is facially insufficient.

By motion dated November 30, 2005, Defendant Gatling seeks the dismissal of all charges contained in the Criminal Court Complaint pursuant to CPL Sec. 170.35, 100.40 and 100.15, asserting that the People's complaint is facially insufficient.

The People were given the opportunity to respond to Defendants' motions to dismiss, however, to date, the People have failed to file any opposition. Thus, this matter is decided without a response from the People. [*2]

Defendants motions are granted in part, and denied in part for the reasons stated below.

FACTUAL STATEMENT

In the Criminal Court Complaint, the People assert that on August 8, 2005, at about 1:45 PM, Police Officer Salvador Menendez observed the Defendants at the Subway station located at Nostrand Avenue, Brooklyn, NY. The officer allegedly watched the Defendants "acting in concert" receive United States currency from four individuals, "in exchange for which the Defendant swiped a Metrocard through the subway turnstile for each of these individuals, thereby allowing the said individuals to enter the transit system."

The Complaint states that the Officer observed "Defendant Gatling hand Metrocards and United States currency to Defendant Griffin after Defendant Gatling swiped two individuals into the transit system beyond the turnstiles."

The Complaint states further that the Officer recovered five Metrocards from Defendant Griffin's person, and that he observed "both defendants bend said Metrocards along the magnetic strip before swiping the above individuals into the turnstiles."

LEGAL ANALYSIS

Under CPL Sec. 100.15, every accusatory instrument must contain two elements; 1) an accusatory portion designating the offense charged, and 2) a factual portion containing evidentiary facts which support or tend to support the charges stated in the accusatory portion of the instrument. These facts must provide reasonable cause to believe that the defendant has committed the crime alleged in the accusatory portion of the accusatory instrument. See, People v. Dumas, 68 NY2d 729 (1986).

Further, under CPL Sec. 100.40, a misdemeanor information is facially sufficient if the non-hearsay facts stated in said information establish; 1) each and every element of the offense charged, and 2) the Defendant's commission of said crime. If both these factors are present, then the information states a prima facie case, and is sufficient. See, People v. Alejandro, 70 NY2d 133 (1987).

Applying these principles to the instant matter, the Petit Larceny charge is facially sufficient. The Possession of a Forged Instrument charges and Obstructing charge are insufficient, and are dismissed.

(A)Obstructing Governmental Administration.

In People v. Zayas, 8 Misc 2d 879, 881, 797 NYS2d 897 (Crim. Ct., Kings Cty 2005), this Court reviewed the applicability of the Obstructing charge to a "Metrocard swipe" case. There, this Court found that "the obstructing statute, while broad, simply does not include the conduct asserted here." In fact, this Court asserted that for the People to charge a Defendant with Obstructing Governmental Administration for the actions alleged herein is to torture "the [*3]wording of the statute beyond meaning." 8 Misc 2d at 882. See, also, People v. Verastegul, NYLJ, 8/22/05, p.20, col. 1-2. ("legislative history clearly shows that Obstruction of Governmental Administration involves violence or physical interference.")^[FN1]

There are no facts contained in the People's complaint which would support an application of PL Sec. 195.05 to the alleged actions of the Defendants. The sale of Metrocard "swipes" simply does not "obstruct, impair and pervert the administration of the governmental function of the New York City Transit Authority of operating the transit facilities on a self-sustaining basis." It merely deprives the NYCTA (and/or the MTA) of revenue, in a non-violent fashion. Thus, the legislative history of the statute clearly does not support the application of this law to this conduct.

Therefore, the charge of ObstructingGovernmental Administration in the Second Degree under PL Sec. 195.05 is hereby dismissed.

(B)Criminal Possession of a Forged Instrument

The People allege in their Superceding Complaint that at the time of his arrest, Defendant Griffin was in possession of 5 Metrocards, all bent along the magnetic strip. Further, it is asserted by Officer Menendez that he observed both defendants bending these same Metrocards along the magnetic strip before swiping people through the turnstiles with said bent Metrocards.

On this basis, the People assert that the Defendants "with knowledge that it was forged, and with intent to defraud, deceive or injure another, utter(ed) or possess(ed) a forged instrument." See, PL Sec. 170.20.

In People v. Lopez, 8 Misc 2d 873, 876, 797 NYS2d 893 (Crim. Ct., Kings Cty 2005), this Court found that while a Metrocard was a "written instrument" under PL Sec. 170.00(1), the swiping of a bent Metrocard was neither forgery, nor possession of a forged instrument since a bent Metrocard "does not, and cannot, purport to be an authentic, fully authorized Metrocard as issued by the Transit Authority since once it is bent, it no longer resembles the card issued by the Transit Authority." 8 Misc 2d at 877-878.

To date, three Courts of concurrent jurisdiction have disagreed with this finding; Verastegul, and Dixon, supra , and People v. Roman, NYLJ 8/19/05, p. 21, col. 4-5. All have held that the bent Metrocard fools the "eye" of the turnstile reader machine into believing that the bent Metrocard is authentic. Thus, on the basis of this authority, the People assert here that the 5 bent Metrocards found on the person of Defendant Griffin at the time of his arrest are forged written instruments.

Defendant Gatling argues that the above-cited cases ignore the plain language of PL Sec. 170.00(6), which requires that the forged instrument, in its altered form, "be in all respects an [*4]authentic creation." On this basis, Defendant Gatling believes that the Verastegul, Dixon and Roman courts have all "improperly restricted the interpretation of authenticity to apply only to an electronic reading of the Metrocard."

Adopting the logic of this argument, this Court is unpersuaded by the holdings in Verastegul, Dixon and Roman. The bending of the Metrocard, and the swiping of the bent card through the turnstile does not constitute possession of a forged instrument since the altered card does not, in all respects, appear to be an authentic creation of the issuing authority. Whether or not the bent card fools the "eye" of the electronic reader is not the issue; the statute clearly requires that the forged instrument attempt to replicate the original in all ways. A bent Metrocard does not meet this standard.

Rather than continue to attempt to "shoehorn" the conduct alleged here under the statutes proscribing forgery and possession of a forged instrument, the People are directed to consider the fact that this conduct clearly fits under the definition of two other statutes.

Under NYCRR 1050.4( c), a defendant is guilty of Unlawful Receipt of Fare for Providing Access to Transit Authority Facilities when he "not being an employee of the (NYCTA)...sell...any version of any fare media or otherwise authorize access to or use of the facilities, conveyances or services of the (NYCTA) without...written permission of a representative of the (NYCTA)..."

Further, under PL Sec. 165.16, a person is guilty of Unauthorized Sale of Transportation Services when he "with intent to avoid payment by another person...in exchange for value, sells access to ...transportation services to such person, without authorization, through the use of an unlimited farecard or doctored farecard."

Clearly, the alleged act of selling "swipes" of a bent Metrocard would fit within the two statutes described above.

Therefore, this Court reaffirms its ruling in Lopez, supra , and on that basis, the 5 counts of Criminal Possession of a Forged Instrument in the Third Degree are hereby dismissed.

( C)Petit Larceny

Under PL Sec. 155.25, a defendant is guilty of Petit Larceny when he steals property. If, as in Zayas, supra , we view the "swipe" of a Metrocard as being the property of the NYCTA, then the defendant could also be seen as stealing the property of the NYCTA. 8 Misc 2d at 884.

Defendant Gatling cites the case of People v. Harris, NYLJ, 4/24/00, p. 35, col. 3, which dismissed a prosecution for violation of PL Sec. 155.25 due to the People's failure to allege "that the defendant obtained the Metrocard illegally, or that he was in unlawful possession of the Metrocard. It does not allege how much money he was receiving in exchange for a "swipe."

Defendant's reliance on Harris is misplaced. The instant complaint states that both Defendants, acting in concert, did bend the 5 Metrocards recovered from Defendant Griffin's person before "swiping" up to four people through the turnstiles using the same bent Metrocards. [*5]Under these facts, the People have established reasonable cause to believe that the defendants stole the property of the New York City Transit Authority.

Therefore, the charge of Petit Larceny is deemed sufficient, and Defendants respective motions to dismiss this charge is denied.

All other arguments advanced by Defendants in their respective motions to dismiss have been reviewed and rejected by this court as being without merit.

This shall constitute the opinion, decision, and order of the Court.

Dated: Brooklyn, New York December 9, 2005

_______________________________ Hon. John H. Wilson, JCC