AD4: phony spam emails are not "forged instruments" and a computer used to send spam is not a "forgery device"

People v Carmack, 2006 NY Slip Op 08490 [available here]

Taking New York's anti-forgery laws where they were never intended to go, a prosecutor in Erie County charged Mr. Carmack with Forgery in the Second Degree and Criminal Possession of a Forgery Device for sending "multiple emails for his computers [using] a computer program that made it appear that they were sent from the email address of another person or entity." (Carmack, 2006 NY Slip Op 08490.) The emails were pretty typical spam, described by the Court as "solicitations for computer programs, dietary supplements and other products [...]." (Id. at __.)

The Fourth Department rightfully reigned this charging practice in, holding that spam emails "do not constitute deeds, wills, codicils, contracts, assignments, commercial instruments or credit cards" and do not involve any "'legal right, interest, obligation or status'", and therefore do not fall within the statutory definition of a "forged instrument" necessary to sustain a conviction for Forgery in the Second Degree. (See id.; Penal Law 170.10[1].)

The Fourth Department likewise reversed defendant's conviction for Criminal Possession of a Forgery Device, nothing that a device must be "specifically designed for use in counterfeiting or otherwise forging written instruments" to qualify as a "forgery device", and that computers at issue, while capable of being used to generate forged documents, were not specifically designed for that purpose. (See Carmack, 2006 NY Slip Op 08490.)