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While it is clearly illegal to use an invalid MetroCard to sneak onto the New York subway, it is not clear exactly what laws are being broken. In a pair of companion decisions, a Brooklyn judge has set out to establish a framework for prosecuting individuals who use specially bent expired cards to gain access without paying, as well as those who “sell swipes” from unlimited MetroCards. “This Court has observed that as the number of cases of alleged Metrocard misuse being brought by the People increases, there is an ongoing dispute between the People and the Defense Bar as to the sufficiency of the charges that have been brought against Defendants accused of crimes associated with the misuse of Metrocards,” Criminal Court Judge John H. Wilson wrote in People v. Lopez, 2004KN070147. “This opinion and [ People v. Zayas, 2005KN070147] are attempts to provide a uniform approach to the legal issues presented by these matters.” Bending an expired or invalid MetroCard at the right spot and angle can trick a turnstile’s card-reading mechanism into providing access. The phenomenon is well documented throughout the Internet, and the MTA has reportedly reprogrammed easily tricked readers. The use of bent cards costs the Metropolitan Transit Authority hundreds of thousands of dollars a year. The MTA approximated $260,000 in lost revenue last year, though one official estimated a much higher loss, according to newspaper reports. The city has used a variety of legal theories to prosecute bent-card and other MetroCard-misuse cases. In Lopez and Zayas, Wilson attempted to clarify the legal bases, upholding some of the proffered charges while dismissing others. In the first of the two companion cases, Radame Lopez was arrested after having been seen “wrongfully swiping a bent Metrocard in order to enter the transit system,” according to the initial criminal complaint. He was charged with forgery, theft of services and possession of a forged instrument, all class A misdemeanors. In response to Lopez’s motion to dismiss the charges, Wilson held the theft of services charge legally sufficient, though he dropped both of the forgery charges. The theft statute, Penal Law �165.15 (3), prohibits among other things, obtaining railroad service by “force, intimidation, stealth, deception, or mechanical tampering.” “While this Court found no definition of the term ‘mechanical tampering,’” Wilson wrote, “common sense dictates that the bending of a Metrocard would constitute such conduct.” However, Lopez’s use of a bent card did not satisfy the elements of forgery under New York’s Penal Law �170.00 (6), which proscribes the use of an instrument that “appears or purports to be in all respects an authentic creation of or fully authorized by its ostensible maker.” To be a true forgery, Wilson held, the bent cards would have to be meant to replicate authentic bent cards. “In other words, the 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,” he wrote. LARCENY CHARGE The police arrested the defendant in the companion case, Erik Zayas, after allegedly observing him use two unlimited MetroCards to allow other passengers entrance into the subway system for a fee. Prosecutors charged him with petit larceny and obstructing governmental administration, both class A misdemeanors, as well as unlawful receipt of fare for providing access to transit authority facilities, a violation. The larceny and providing-access charges survived a motion to dismiss, though the obstruction charge did not. “The Obstructing statute, while broad, simply does not include the conduct asserted here,” Wilson wrote. “The Defendant is alleged to have stood next to a subway turnstile, and sold ‘swipes’ from his unlimited access Metrocard to people willing to buy those ‘swipes,’” he added. “These actions do not even remotely fit the proscribed conduct described in the statute, and the attempt to fit the defendant’s conduct under PL �195.05 tortures the wording of the statute beyond meaning.” The fate of the larceny charge, which survived the motion to dismiss, hinged on the definition of “property.” “What Transit Authority ‘property’ has the Defendant stolen?” Wilson asked. “The ‘property’ at issue here is the money to be collected by the Transit Authority from the customers to whom the Defendant is selling the ‘swipes’ from his unlimited Metrocard,” he wrote, answering his own question.

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