The opinion
Lunn, J.
(dissenting in part). I respectfully dissent in part and
would affirm because I cannot agree with the majority that the evidence is legally insufficient to support the conviction of forgery in the second degree (Penal Law § 170.10 [2]) or, indeed, that the evidence presented to the grand jury likewise was insufficient to support that count. Contrary to the view of the majority, the analysis of this issue does not turn on whether signing a property log to make a record of personal property confiscated from a suspect by the police is analogous to signing a fingerprint card. Rather, the analysis of this issue turns on whether a property log is an “instrument or article . . . containing written or printed matter or the equivalent thereof, used for the purpose of reciting, embodying, conveying or recording information, or constituting a symbol or evidence of value, right, privilege or identification, which is capable of being used to the advantage or disadvantage of some person” (§ 170.00 [1] [emphasis added]). In concluding that a property log is not a written instrument within the meaning of Penal Law § 170.00 (1), the majority implicitly determined that a property log was not capable of being used to the advantage or disadvantage of defendant.
Although the majority correctly acknowledges that a property log is used to ensure that the property of a suspect is returned to the suspect when he or she leaves the police station, the record on appeal belies the majority’s conclusion that the property log was not used for the purpose of establishing defendant’s identity. The police officer who arrested defendant testified that a suspect may gain an advantage by providing a false name on a property log because the suspect may thereby conceal his or her true identity. Indeed, the record establishes that the police *1306 initially used the complete name, i.e., the first name and the surname, signed by defendant in the property log to search the computer identification system. It was only after that search was unsuccessful that the police learned defendant’s true identity by performing a second search using defendant’s physical characteristics and only the surname signed by defendant in the property log. Had defendant used an alias on the property log that did not include his actual surname, it is likely that the second computer search would have been as unsuccessful as the first. Although there are methods of identification other than computer database searches, such as fingerprint analysis, the police officer who arrested defendant testified that those methods may take as long as eight hours to complete and, in this case, the police did not receive the report generated from defendant’s fingerprints until the morning following defendant’s arrest. Therefore, defendant was “able to at least temporarily hide from the authorities his prior criminal history[, which included an outstanding arrest warrant,] and his true identity” (People v Kirk, 115 AD2d 758, 759 [1985], affd 68 NY2d 722 [1986]). As is true with a false signature on a fingerprint card, a false signature on a property log “could reasonably lead the authorities to conclude that a suspect has no past criminal record and, as a consequence, [the suspect] might be released on his [or her] own recognizance or upon very low bail” (id.). Because in my view the property log is a written instrument within the meaning of Penal Law § 170.00 (1), I conclude that the evidence presented at trial with respect to the forgery charge is legally sufficient to support the conviction of that charge. Present—Martoche, J.P, Centra, Lunn, Fahey and Gorski, JJ.