It is possible that at trial, the state would have been unable to establish beyond a reasonable doubt that Johnston possessed the requisite intent.
See, e.g., People v. Bailey, 13 N.Y.3d 67 (2009) (vacating conviction for possession of a forged instrument where defendant knowingly possessed counterfeit $10 bills, because “drawing the inference of defendant's intent from his knowledge that the bills were counterfeit improperly shifts the burden of proof with respect to intent from the people to the defendant”);
People v. Brunson, 888 N.Y.S.2d 22, 23 (1st Dep't 2009) (vacating conviction for possession of a forged instrument because “knowing possession of the forged card was not sufficient to prove intent” where defendant found in possession of altered state ID card “engaged in no conduct evincing an intent to use it”),
lv. denied, 13 N.Y.3d 937 (2010). But the standard for determining a defendant's guilt at trial is not the standard for determining probable cause. Because the evidence supports an inference that Johnston purposefully created or obtained a fraudulent police ID card, which on its face indicated that he was an active member of the NYPD, a reasonably prudent person would have sufficient basis for thinking it likely that Johnston intended to use the card for an illicit purpose.
People v. Barona, 19 Misc.2d 1122(A), at *3 (N.Y. City Crim. Ct.) (“[T]here is simply no reason to obtain or possess a New York State Identification Card unless one intends to use it in order to demonstrate one's identity. And there is, therefore, no reason to knowingly possess a
forged state identification card unless one intends to present it as real—in other words, to defraud or deceive another.”). Because the complaining officers had probable cause to prosecute Johnston under both
Penal Law § 170.20 and Administrative Code § 14–108, Johnston's state and federal malicious prosecution claims are dismissed.