May 17, 1976
Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered June 4, 1975, convicting him of forgery in the second degree (five counts) and signing a false instrument for filing in the first degree (five counts), upon a jury verdict, and imposing sentence. Judgment reversed, on the law, and indictment dismissed. We have examined appellant's contentions and find them to be without merit. Nevertheless, as the People admit, under People v Gottlieb ( 36 N.Y.2d 629) and the recent decision of the Court of Appeals in People v Bel Air Equip. Corp. ( 39 N.Y.2d 48), letters of recommendation containing false information as to an applicant's experience in driving gasoline trucks, which bear the applicant's signature, do not constitute a violation of section 175.35 Penal of the Penal Law, as the letters do not constitute false instruments. Nor, as the People further concede, does the signing of such letters, undeniably false, constitute the crime of forgery in the second degree; the appellant has neither falsely made, falsely completed, or falsely altered the letters, as those terms are defined in subdivisions 4, 5 and 6 of section 170.00 Penal of the Penal Law. We commend the District Attorney for the position he has taken in pointing out the deficiencies in the People's proof and his candor in recommending the dismissal of the indictment. Hopkins, Acting P.J., Martuscello, Rabin, Shapiro and Titone, JJ., concur.