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Notary Law & Procedures

 

 

 

What follows is a document I prepared when I was a notary at work prior to my retirement.

I handed to people who were asking me to break the rules.

 

Page 1 of 2

 

What’s the Big Deal? C’mon, just stamp the silly thing; no one will ever know. I just received it here at work this morning. My wife is stuck at home, the kid is sick, and this has to be filed today. You can phone her and see that she really did give me permission to sign it for her. What’s the difference? Please don’t make this a problem.”

 

            The Big Deal is that you are asking me, as a Notary, to commit a Class E Felony: §175.40 Issuing a false certificate, punishable by up to 4 years in jail. And you would be guilty of a Class D Felony: §170.10 Forgery in the second degree punishable by up to 7 years in jail.

 

New York State - Department Of State - Division of Licensing Services - Notary Public License Law

For the complete text: http://www.dos.ny.gov/licensing/lawbooks/notary.pdf

 

Professional Conduct

 

Use of the office of notary in other than the specific, step-by-step procedure required is viewed as a serious offense by the Secretary of State. The practice of taking acknowledgments and affidavits over the telephone, or otherwise, without the actual, personal appearance of the individual making the acknowledgment or affidavit before the officiating notary, is illegal. The attention of all notaries public is called to the following judicial declarations concerning such misconduct:

 

“The court again wishes to express its condemnation of the acts of notaries taking acknowledgments or affidavits without the presence of the party whose acknowledgment is taken for the affiant, and that it will treat serious professional misconduct the act of any notary thus violating his official duty.” (Matter of Napolis, 169 App. Div. 469, 472.) “Upon the faith of these acknowledgments rests the title of real property, and the only security to such titles is the fidelity with which notaries and commissioners of deeds perform their duty in requiring the appearance of parties to such instruments before them and always refusing to execute a certificate unless the parties are actually knows to them or the identity of the parties executing the instruments is satisfactorily proved.” (Matter of Gottheim, 153 App. Div. 779, 782.)

 

Equally unacceptable to the Secretary of State is slipshod administration of oaths. The  simplest form in which an oath may be lawfully administered is: “Do you solemnly swear that the contents of this affidavit subscribed by you is correct and true? (Bookman v. City of New York, 200 N.Y. 53, 56.)

 

Alternatively, the following affirmation may be used for persons who conscientiously decline taking an oath. This affirmation is legally equivalent to an oath and is just as binding: Do you solemnly, sincerely and truly declare and affirm that the statements made by you are true and correct?

 

Whatever the form adopted, it must be in the presence of an officer authorized to administer it, and it must be an unequivocal and present act by which the affiant consciously takes upon himself the obligation of an oath. (Idem, citing People ex rel. Kenyon v. Sutherland, 81 N.Y. 1; O’Reilly v. People, 86 N.Y. 154, 158, 161.)

 

Executive Law

 

Misconduct by a notary and removal from office.

 

        A notary public who, in the performance of the duties of such office shall practice any fraud or deceit, is guilty of a misdemeanor (Executive Law, §135-a), and may be removed from office. The notary may be removed from office if the notary made a misstatement of a material fact in his application for appointment; for preparing and taking an oath of an affiant to a statement that the notary knew to be false or fraudulent.

 

Page 2 of 2

Penal Law

 

§70.00 Sentence of imprisonment for felony.

 

Maximum term of sentence. The maximum term of an indeterminate sentence shall be at least three years and the term shall be fixed as follows:

***

(d) For a class D felony, the term shall be fixed by the court, and shall not exceed 7 years; and

(e) For a class E felony, the term shall be fixed by the court, and shall not exceed 4 years.

***

§70.15 Sentences of imprisonment for misdemeanors and violation.

 

Class A misdemeanor. A sentence of imprisonment for a class A misdemeanor shall be a definite sentence. When such a sentence is imposed the term shall be fixed by the court, and shall not exceed one year.

 

§170.10 Forgery in the second degree.

 

A person is guilty of forgery in the second degree when, with intent to defraud, deceive or injure another, he falsely makes, completes or alters a written instrument which is or purports to be, or which is calculated to become or to represent if completed:

 

  1. A deed, will, codicil, contract, assignment, commercial instrument, or other instrument which does or may evidence, create, transfer, terminate or otherwise affect a legal right, interest, obligation or status; or
  2. A public record, or an instrument filed or required or authorized by law to be filed in or with a public office or public servant; or
  3. A written instrument officially issued or created by a public office, public servant or governmental instrumentality.

 

Forgery in the second degree is a class D felony.

 

§175.40 Issuing a false certificate.

 

        A person is guilty of issuing a false certificate when, being a public servant authorized by law to make or issue official certificates or other official written instruments, and with intent to defraud, deceive or injure another person, he issues such an instrument, or makes the same with intent that it be issued, knowing that it contains a false statement or false information. Issuing a false certificate is a class E felony.

 

§195.00 Official misconduct.

 

A public servant is guilty of official misconduct when, with intent to obtain a benefit or to injure or deprive another person of a benefit:

 

  1. He commits an act relating to his office but constituting an unauthorized exercise of his official functions, knowing that such act is unauthorized; or
  2. He knowingly refrains from performing a duty which is imposed upon him by law or is clearly inherent in the nature of his office.

 

Official misconduct is a class A misdemeanor.


   
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