People v. Savarese

October 30, 2014,

The records reveal that the accused moves before the Court, pursuant to Criminal Procedure Law, section 440.20, in order to vacate the sentences imposed upon him pursuant to an Indictment. It appears that after having been found Guilty by a jury of the Crimes of Burglary in the Third Degree and Grand Larceny in the First Degree, he was sentenced to an indeterminate term of imprisonment for a maximum of ten years and a minimum of five years under each count, said sentences to be served consecutively. The accused asserts that these sentences are violative of former Penal Law Section 1938 which precludes double punishment for a single act, although 'made criminal and punishable in different ways, by different provisions of law.'

In support of the foregoing contention, the accused alludes to People v. Savarese, which involved a kidnapping and a robbery. A Judge held that if all the acts performed were Necessary or Incidental to the commission of a single crime and were motivated by an intent to commit that crime, Then even if another separate crime be committed or another statute also be violated, he may not be doubly punished. If, however, any of the acts were not necessary to or incidental to the commission of the crime intended and those acts result in the commission of a separate crime, then he may be punished for each crime. Applying this rule, the Judge found that kidnapping a truck driver and his assistant while their truck was being hijacked was necessary and incidental to the robbery; therefore, though properly convicted of both kidnapping and robbery; the accused could not be punished for both crimes.

Court ruled that Section 1938 of the Former Penal Law provides, in part, as follows: 'An act or omission which is made criminal and punishable in different ways, by different provisions of law, may be punished under any one of those provisions, but not under more than one'.

The leading case interpreting this Section is People ex rel. Maurer v. Jackson. There, the Court of Appeals, at pages 264 and 265, stated: 'It is clear that if separate and distinct acts were committed, and that they violated more than one section of the Penal Law, punishment for each of them would be proper although they arose out of a single transaction. It is also not open to dispute that if there were merely a single inseparable act violative of more than one statute, or if there were an act which itself violated one statute and was a material element of the violation of another, there would have to be single punishment. We recognize that Section 1938 is not by its terms limited to included crimes although it is clear that the statute will there apply; If, however, the acts are separable, it will not apply.'

To Be Cont...

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The trial was adjourned until October 24, 2011 ...cont

October 30, 2014,

The legislative findings continue: “Once the letter of the law is complied with, including the essential showing that there is a pattern of conduct which is criminal under existing statutes, the question whether to prosecute under those statutes or for the pattern itself is essentially one of fairness. The answer will depend on the particular situation and is best addressed by those institutions of government which have traditionally exercised that function: the grand jury, the public prosecutor, and an independent judiciary”.

In the furtherance of the tenor of the legislative findings and on the occasion of the enactment of the OCCA, CPL § 200.65 was passed into law as an implementing provision. The section reads, in pertinent part: “When filing an indictment which charges enterprise corruption in violation of article four hundred sixty of the penal law ..., the District Attorney must submit a statement to the court attesting that he or she has reviewed the substance of the evidence presented to the grand jury and concurs in the judgement that the charge is consistent with legislative findings in article four hundred sixty”

The crime of Enterprise Corruption was clearly fashioned as part of a legislative effort to stem and punish the activities of organized crime. It was not designed to punish those defendants for “relatively minor or isolated acts of criminal which, while related to an enterprise can be adequately and more fairly prosecuted as separate offenses.” “The legislature inserted this provision, CPL § 200.65, to assure that the indictment has received personal review and concurrence in the charge by the chief prosecuting officer of the jurisdiction”.

It is clear that CPL § 200.65 is a mandate which imposes upon the District Attorney a non delegable duty to review the substance of the grand jury evidence to determine whether the investigation may appropriately be prosecuted as an enterprise corruption case in accord with the considerations set forth in the legislative findings.

In the instant case, the facts are not in dispute. A special information, pursuant to CPL § 200.65, was filed by the Nassau County District Attorney, not on the occasion of the filing of the indictment as required by the statute, but rather, on October 20, 2011, eight (8) months after the filing of the indictment.

To Be Cont...

CPL § 180.50(3)(d)...cont

October 29, 2014,

To regard a unilateral determination about how the reduction should be effectuated as a definitive ruling that, e.g, a felony complaint —the function of which is to demonstrate the existence of reasonable cause to believe the defendant committed a felony has been transformed into a facially sufficient information the purpose of which is to demonstrate the existence of a prima facie case — simply because of court notations and, perhaps, annexation of a supporting deposition, is untenable and impractical."

The Judge further noted that the "law of the case" doctrine could have no application in such a situation, where one party, the criminal defendant, had no opportunity to be heard on the issue which the People wish to give preclusive effect.

Further belying the People's argument are the provisions of CPL § 180.50(3)(d), which, inter alia, require the court to "arraign the defendant on the new accusatory instrument " and the provisions of CPL § 170.30(1) which explicitly set forth that it is this arraignment which serves as the trigger for a defendant's motion to dismiss for facial insufficiency pursuant to subparagraph (a) and CPL § 170.35(1).

In harmony with these provisions, and with the court's opinion that a reduction pursuant to CPL § 180.50(3)(a)(iii) cannot act a substitute for a defendant's motion to dismiss pursuant to CPL §§ 170.30(1)(a) and 170.35(1), are the provisions of CPL § 170.45, which provide, inter alia, that the "procedural rules prescribed in section 210.45 with regard to the making of a motion to dismiss an indictment are also applicable to a motion to dismiss an information." and the provisions of CPL § 210.45(1), which mandate, among other things, that a motion to dismiss "must be made in writing."

Following the People's argument, Sections 170.30, 170.35, 170.45 and 210.45, among others, would simply be written out of the Criminal Procedure Law whenever a felony offense is reduced pursuant to CPL § 180.50(3)(a)(iii). Moreover, the People's position would preclude a defendant from ever challenging the facial sufficiency, jurisdictional or otherwise, of the converted District Court Information, without ever having been provided the opportunity to be heard. For the reasons set forth above, the court does not believe that was the intended purpose of CPL § 180.50 and refuses to adopt the People's argument.

The District Court Information will be found facially sufficient where it contains an accusatory part, designating the offense charged, CPL § 100.15(2), setting forth every element thereof, and a factual part containing "a statement of the complainant alleging facts of an evidentiary character supporting or tending to support the charges[,]" CPL § 100.15(3) based upon either the complainant's personal knowledge or upon information and belief. The factual part, taken together with any supporting depositions, must "provide reasonable cause to believe that the defendant committed the offense,"

The Defendant is correct in asserting that "[w]here [as here] the theory of prosecution is larceny by extortion, proof that the defendant compelled or induced another person to part with property by instilling fear of future injury is necessary.

Viewing these allegations in a light most favorable to the People, , without giving them an overly restrictive or technical reading, , the court finds that they establish, through first hand non-hearsay allegations, that the Defendant attempted to compel the victim to provide him with property having a value in excess of one thousand ($1,000.00) dollars, to which the Defendant was not otherwise entitled, by instilling in the victim fear that the Defendant would "expose a secret or publicize an asserted fact, whether true or false, tending to subject to hatred, contempt or ridicule" Penal Law § 155.05(2)(e)(v) and/or by "performing any other act which would not in itself materially benefit the [Defendant] but which is calculated to harm the victim materially with respect to his business, calling, career, financial condition, reputation or personal relationships."

Contrary to the Defendant's argument, while it may have been a better practice to annex the Defendant's alleged typewritten note to the Information, the failure to have done so is not fatal to the facial sufficiency of the accusatory instrument. The contents of the note, as related by the victim in his supporting deposition, are not offered for the truth of those statement, the very definition of hearsay; rather they are set forth as a demonstration that such statements, true or not, where made by the Defendant to the victim, as part of the criminal res gestae of the alleged extortion.

Based upon all of the foregoing, the court finds that the Information serves its intended purpose of providing the Defendant with notice enabling him to prepare for trial and to distinguish the offense sufficiently to prevent him from again being tried for the same offense.
Accordingly, the Defendant's motion to dismiss is denied.

New Jersey statutes treating larceny and possession of stolen property...cont

October 29, 2014,

The People must prove value and theft by the defendant in a grand larceny, but under the New Jersey statute merely possession and knowledge of property stolen is sufficient."

The state of the law in New York with respect to the double jeopardy/previous prosecution considerations implicated by successive prosecutions for larceny and possession of stolen property is clear. It is generally held that the exception contained in CPL 40.20[2][a] is inapposite because the acts establishing the larceny are "not clearly distinguishable from those establishing the possessory crime." As emphasized above, the statutory exception is couched in conjunctive, not alternative, terms. Both parts of the statutory exception must be satisfied before it may be invoked in a particular criminal transaction to defeat a previous prosecution claim. That portion of the exception requiring that the acts establishing the offenses be "clearly distinguishable" is not so satisfied. The exception contained in CPL 40.20(2)(b) is generally held to be inapplicable to successive larceny/possession prosecutions because the harms or evils to be prevented by the respective statutes are not "very different." "In fact, in New York, criminal possession of stolen property is but a form of larceny." Furthermore, the other requirement of the paragraph (b) exception has also been deemed satisfied in larceny/possession prosecutions because, "the larceny charge would have been impossible without the criminal possession. Thus the latter is considered a lesser included offense of the former.

Therefore, if the New Jersey statutes treating larceny and possession of stolen property are not radically dissimilar from those in New York, the rationale of, and reasoning contained in, the foregoing cases would apply to this case and bar the instant prosecution. The defendant was convicted in New Jersey of "Receiving Stolen Property." In pertinent part, that statute provides, "A person is guilty of theft if he knowingly receives or brings into this State movable property of another.

The statute thus makes the knowing possession of stolen property, with an intent to benefit someone other than the owner, a crime. And, that, of course, is the basic definition of "criminal possession of stolen property" in New York. "Theft" is the New Jersey equivalent of "larceny" and is defined, for the purposes of this case, as follows: "A person is guilty of theft if he unlawfully takes, or exercises unlawful control over, movable property of another with purpose to deprive him thereof."

"Deprive" means: " ... (1) to withhold or cause to be withheld property of another permanently or for so extended a period as to appropriate a substantial portion of its economic value, or with purpose to restore only upon payment of reward or other compensation; or (2) to dispose or cause disposal of the property so as to make it unlikely that the owner will recover it."
“A person steals property and commits larceny when, with intent to deprive another of property or to appropriate the same to himself or to a third person, he wrongfully takes, obtains or withholds such property from an owner thereof."

"The larceny, fraud and receiving being offenses of separate and inconsistent nature, there results the legal concept that the receiver must be someone other than the thief, or as our criminal court has stated, ' that a person cannot be guilty of larceny and receiving of the same property.'

Finally, New Jersey's lack of geographical jurisdicition over the actual stealing of the automobile does not "dilute" either constitutional or statutory double jeopardy/previous prosecution protections.

Double jeopardy claims invoked under CPL 40.20 often arise where another State or the Federal Government has previously prosecuted a New York defendant for one segment of a criminal transaction, although only New York has jurisdiction over another, perhaps more serious segment of the same transaction.

Based upon the foregoing, it is clear that the double jeopardy/previous prosecution analyses contained in several jurisprudence apply here. This case does not fit within the parameters of any of the exceptions set forth in CPL 40.20(2). Specifically, the acts establishing larceny are not "clearly distinguishable" from those establishing the possessory crime (CPL 40.20[2][a] ), and the statutory provisions involved are not designed to prevent "very different" kinds of harm or evil (CPL 40.20[2][b] ).

The instant prosecution of the defendant for larceny of a 1984 Pontiac Trans-Am on July 15, 1985 is therefore barred by his previous conviction in New Jersey for possession of that stolen vehicle on July 16, 1985. (CPL 40.20[1].) That portion of the defendant's motion seeking an Order dismissing the instant indictment pursuant to CPL 210.20(1)(e) is granted.

New Jersey statutes treating larceny and possession of stolen property

October 28, 2014,

The defendant was indicted by a Nassau County Grand Jury on September 23, 1985, charged with Grand larceny, Second Degree. In the indictment, it is alleged that, on or about July 15, 1985, the defendant stole a 1984 Pontiac Trans-Am from an automobile dealership in Hicksville, New York.

A Nassau County Criminal lawyer said that on August 19, 1985 the defendant was charged in a felony complaint with stealing the aforesaid Pontiac, and on September 23, 1985 he was indicted for Grand larceny in the Third Degree in connection with that alleged theft." The People do not contest the factual allegations set forth by defense counsel only his legal conclusions.

The fundamental principle that a defendant may not be placed twice in jeopardy for the same offense is embodied in the federal and New York State constitutions, and in the statutory law of this state. In the instant case, there is no federal constitutional issue involved even though the 5th Amendment prohibition was ruled applicable to the states in several cases. Under the "dual sovereignties" doctrine, successive State and Federal prosecutions based on the same transaction or conduct do not offend the double jeopardy prohibition. Therefore, the challenge here rests solely upon the application of CPL 40.20

CPL 40.20 supersedes the "dual sovereignties" doctrine, and extends double jeopardy protection generally to offenses arising out of a common event. Unless one of the seven enumerated exceptions set forth in CPL 40.20(2) is made out, a person may not be "separately prosecuted for two offenses based upon the same act or criminal transaction." Thus, "absent the statutory exceptions, no matter the number of statutory offenses technically violated, or the number of jurisdictions involved, an accused is not to suffer repeated prosecution for the same general conduct."

The Court must therefore first determine whether the instant prosecution for larceny of a 1984 Pontiac Trans-Am automobile and the prior prosecution in New Jersey for "receiving" stolen property (to wit: the same Trans-Am one day later) arise from the same criminal transaction.
There is no question, and the People do not really contest, that this prosecution and the previous prosecution in New Jersey arise out of a "single criminal incident," and are integral parts of a "single criminal venture."

However, the determination that only one criminal transaction is involved "... does not automatically bar a second prosecution." Seven exceptions, set forth in CPL 40.20(2), "qualify the general proscription." The People argue that the first two such exceptions apply to this case.

The first provides, "A person may not be separately prosecuted for two offenses based upon the same act or criminal transaction unless: (a) The offenses as defined have substantially different elements and the acts establishing one offense are in the main clearly distinguishable from those establishing the other"

To Be Cont.

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Support of Assembly Bill 10473-A...cont

October 28, 2014,

Defense counsel seeks to have this Criminal Court vacate a condition of defendant's sentence of probation wherein the Court directed that the defendant reimburse Nassau County for the costs associated with its investigation of the defendant. Defense counsel asserts that the portion of the sentence directing restitution "was illegally imposed, unauthorized and invalid as a matter of law in that neither the Nassau County District Attorney nor the Nassau County Police Department is a 'victim' qualified to receive restitution for public monies received in the pursuit of solving crimes.

In response to defense counsel's application and argument, the People do not contest defense counsel's assertion that the restitution portion of criminal defendant's sentence was unauthorized, but maintain that "... the entire sentence imposed by this Court on March 7, 1997 should be vacated and the matter should be scheduled for resentencing"

It is clear by the language of the applicable statutory sections and the case law interpreting those sections that the reimbursement ordered by the Court as a condition of the sentence of probation imposed upon the defendant is not "restitution" as that term has been interpreted and defined by case law. Such monies are "part of the county's operating costs" and cannot be categorized as restitution or reparation because the county is not a "victim." Thus, the Court agrees with counsel that such a condition would be unauthorized and could not stand when challenged, if, the particular statutory sections cited to by counsel were the only authority for imposing such a condition of probation for DWI.

The legislature noted that public policy considerations dictate that courts should "be scrupulously concerned about public safety in making sentencing decisions." Legislative Memorandum in Support of Assembly Bill 10473-A. Recognizing this, the legislature specifically overruled McNair by enacting subdivision (4). At the same time, the legislature enacted subdivision (5) which further expanded the authority of sentencing courts to fashion and impose reasonable conditions as part of a sentence of probation. The legislature, in its statement of support, simply noted that subdivision (5), set forth below, provides "sentencing judges with greater flexibility in imposing other conditions of probation." Legis. Memorandum at 2589.

PL § 65.10(5)--Other conditions provides: When imposing a sentence of probation the court may, in addition to any conditions imposed pursuant to subdivisions two, three and four of this section, require that the defendant comply with any other reasonable condition as the court shall determine to be necessary or appropriate to ameliorate the conduct which gave rise to the offense or to prevent the incarceration of the defendant.

To Be Cont...

CPL § 180.50(3)(d)

October 27, 2014,

The Defendant was originally charged, by Felony Complaint, on November 23, 2010 with Attempted Grand larceny in the Third Degree, in violation of Penal Law §§ 110.00/155.35.On June 9, 2011this charge was reduced, pursuant to CPL § 180.50, to Attempted Grand larceny in the Fourth Degree, in violation of Penal Law §§ 110.00/155.30(1). This reduction, and the conversion of the Felony Complaint to a District Court Information, was accomplished by the appropriate notations having been made on the Felony Complaint, in accordance with CPL § 180.50(3)(a)(iii) and by the annexing of a short form order directing such reduction to the Felony Complaint.

The Criminal Defendant now moves to dismiss the District Court Information, as being facially insufficient, pursuant to CPL § 170.30(1)(a). The Defendant argues that the People's theory of the case is one of larceny by extortion and that "the information herein does not advise or place defendant on notice that the theory of prosecution is based upon larceny by extortion."

In opposition the People argue that the facial sufficiency of the District Court Information was already determined at the time of the reduction of the Felony Complaint, pursuant to CPL § 180.50(3)(a)(iii), and that this court is now precluded from hearing this issue. Alternatively the People allege that the Information is facially sufficient.

The People's position, that the reduction of a felony charge to a misdemeanor pursuant to CPL § 180.50(3)(a)(iii) results in a binding determination as to the facial sufficiency of the newly created District Court Information, effectively converts the reduction procedure to a defendant's motion to dismiss pursuant to CPL § 170.30(1)(a). The court finds that such an application of CPL § 180.50(3)(a)(iii) is not only contrary to the intended purpose of that section, but eviscerates the application of CPL § 170.30(1)(a) to any felony offense reduced pursuant to CPL § 180.50(3)(a)(iii) and potentially denies a defendant the opportunity to be heard concerning the facial sufficiency of the accusatory instrument.

Clearly, "[t]he drafters of the Criminal Procedure Law provided for the reduction of Felony Complaints in order to expedite the resolution of less serious cases in local criminal courts, and in order that superior courts not be cluttered up with cases that do not truly merit prosecutions as felonies." It is not the statute's purpose to be the mechanism by which an ultimate determination as to the facial sufficiency, jurisdictional or otherwise, of a District Court Information is to be determined.

The expedited mechanism spelled out in CPL § 180.50 for the reduction of felonies to misdemeanors provides, in subparagraph 1, that the court may make inquiry, with the People's consent, to determine whether there is reason to believe an offense other than a felony was committed, as a predicate to such reduction.

To Be Cont...

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CPL 20.40 (subd. 1, par. (a))

October 27, 2014,

Records show that in this first case, it involves an appeal by the accused from a judgment, convicting her of forgery in the second degree (seven counts), grand larceny in the second degree (two counts) and grand larceny in the third degree (three counts), upon a jury verdict, and imposing sentence. After trial, accused now appeals before the court.

The court held that the jury could not have found by a preponderance of the evidence that venue was properly laid, since there was no indication of where the forgery occurred. The crime of forgery is complete when the instrument is made or altered with fraudulent intent, and the utterance of the instrument is not necessary. CPL 20.40 (subd. 1, par. (a)) requires that Conduct occur within a county sufficient to establish one element of the offense. Appellant resided in another County while the offices of the corporation on whose account the checks were drawn was located in New York County. There was no proof that any element of the crime of forgery, including the intent to forge, occurred in his County. The fact that some of the checks were deposited in banks in the County does not supply the necessary conduct evidencing the intent to forge, since forgery is not a 'result' offense. Thus, the seven counts in the indictment charging forgery in the second degree should be dismissed.

The only issue left to prove was whether there was the requisite intent to defraud. Proof of similar uncharged forgeries is usually admissible in order to prove the requisite intent and a common plan or scheme. However, in the case at bar, the introduction into evidence of the seven admittedly forged checks, together with the testimony of witnesses, provided enough material from which an intention to defraud could have been found by the jury. Thus, the prejudicial effect of such proof far outweighed its probative value on the issue of intent.

Furthermore, such evidence is inadmissible to refute the defense of authorization, especially in view of the fact that no charge was given directing the jury not to consider said evidence insofar as the defense of authorization is concerned. The prejudicial effect of the introduction into evidence of the more than 40 checks undoubtedly spilled over into the jury's deliberations on the charges of grand larceny. Thus, she was deprived of a fair trial on those counts and should be afforded another trial thereon.

In this second case, the accused was charged with six counts involving robbery, grand larceny and burglary. He was convicted by a plea of guilty to robbery in the first degree and ultimately sentenced to five years' imprisonment. The crime with which he is now charged involves the fruits of the crime to which he pleaded guilty. He is now charged with criminal possession of stolen property in the second degree, and moves for dismissal of the indictment pursuant to section 210.20 of the Criminal Procedure Law.

In support of his motion he urges dismissal on the ground of double jeopardy under section 165.60(2) of the Penal Law, which states that: 'In any prosecution for criminal possession of stolen property, it is no defense that: (2) the defendant stole or participated in the larceny of the property; provided that a person may not be convicted of both larceny and criminal possession of stolen property with respect to the same property.'

Revised Penal Law (1965), section 165.45, eliminates the apparent inconsistency by defining the crime simply in terms of 'possession', clearly evincing an intent that one knowingly in possession of stolen property may be guilty of criminal possession whether or not he committed the basic larceny. In harmony with this revised definition and case law, Penal Law, section 165.60 negates theft or larceny of the property by the defendant as a defense and prohibits conviction for both larceny and criminal possession. The crime of robbery in the revised Penal Law is defined in terms of larceny: 'a person forcibly steals property and commits robbery when, in the course of committing a Larceny, he uses or threatens the immediate use of physical force upon another person.'

Robbery is essentially a larceny accompanied by use of physical force. It is submitted the Daghita rationale is equally applicable to the crime of robbery as it is to larceny per se. By definition robbery necessarily encompasses larceny and certainly the addition of an element, i.e., physical force, to the larcenous taking, does not so alter the facts as to avoid the injustice worked by convicting defendant of both the crime of robbery and criminal possession of the stolen goods. In Heflin v. United States, the court indicated that absent an express contrary indication, a defendant charged under bank robbery statute may not be convicted for stealing and receiving the same goods. To hold the Penal Law section 165.60(2) speaks in terms of larceny exclusive of robbery and a former conviction of robbery is without its purview, would be harsh, unreasonable and anomalous. To avoid such result and to harmonize with case law, this court construes the statute as using the term larceny in a generic sense, as defined in Penal Law section 155.05, thereby precluding conviction for criminal possession whenever the defendant has been convicted of a crime incorporating the causative larceny as an essential element. Accused cannot, therefore, be convicted of criminal possession of the same property as obtained through a robbery for which he has been convicted.

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The court ultimately sentenced the defendant...cont

October 26, 2014,

The criminal defendant asked some questions, particularly about the suspension of his dentistry license. The court replied that the suspension of the license was a condition of the plea, "but it's not going to be carried forth until date of sentence. If things happen between now and [the] sentence that make me change my mind, then that's a possibility.

The allocution concluded and the criminal court adjourned the matter for two months for the preparation of a presentence report. The defendant's bail was continued.

Thereafter, the matter languished as the defendant twice changed attorneys and moved to withdraw his guilty plea, inter alia, on the ground that the court had coerced him to plead guilty by threatening to remand him if he did not. By order entered August 29, 2007, the court (Peck, J.) denied the motion, finding, among other things, that the defendant had not been coerced into pleading guilty. In its decision, the court wrote, in pertinent part:

"As to the issue of remanding the defendant if a plea did not take place, an examination of the historical record of the case, especially the Court dates prior to the defendant's plea date is necessary to fully understand what transpired. The defendant's custody status was that he was released to the custody of the Nassau County Probation Department. Pending the outcome of his case, he failed on eight separate occasions to comply with their mandates.

The court ultimately sentenced the defendant, inter alia, to concurrent terms of five years' probation, restitution in the amount of $10,102.20, and a fine of $20,000. The court, however, did not require the defendant to surrender his dentistry license. The defendant now appeals, challenging the voluntariness of his plea.

In order to be valid, a guilty plea must be entered voluntarily, knowingly, and intelligently. A plea is voluntary if it represents a choice freely made by the defendant among legitimate alternatives. When offered benefits for pleading guilty and confronted with the risk of more severe punishment if a plea offer is refused, a defendant will certainly feel pressure to plead guilty. But such pressure does not render a guilty plea involuntary because "`the imposition of these difficult choices is an inevitable'—and permissible—`attribute of any legitimate system which tolerates and encourages the negotiation of pleas'".

To Be Cont....

The trial was adjourned until October 24, 2011

October 26, 2014,

The trial was adjourned until October 24, 2011 for the attorneys to make whatever applications deemed by them to be appropriate and further to make submissions in support thereof if they desired. Jury selection was adjourned so as to permit a full and complete airing of the issues attending the People's revelation.

The criminal defendants had submitted the letter of the attorney for one of the defendants, dated October 24, 2011. A submission dated October 24, 2011, in the form of a motion to dismiss the Enterprise Corruption count, was provided by the attorney for another defendant. Attached thereto was the Abrams memorandum, as well as the decision in a case.

One of the assistants assigned to try the case, Assistant District Attorney submitted her affirmation dated October 24, 2011. Attached was the October 23, 2011 affirmation of the Executive Assistant District Attorney in charge of the Investigations Division of the Nassau County District Attorney's Office from January, 2006 to September, 2011, and Chief of Staff to the District Attorney from December 2009 to September, 2011, an eight-page memorandum of law, a copy of the decision of Queens County Supreme Court Justice in a case.

On October 24, 2011, at this Court's request, the People provided, for in camera review, copies of Penal Law § 460.60, letters sent by Nassau County District Attorney, including the consent of the “Affected District Attorneys” to the charge of Enterprise Corruption set forth in Indictment 225N–11.

The issue presented to this Criminal Court is what effect, if any, the People's late filing of the CPL § 200.65 information has on the Enterprise Corruption count.

The Class B Felony, “Enterprise Corruption, Penal Law § 460.20, was enacted, “Organized Crime Control Act” (OCCA) in an effort to combat organized crime in the state of New York. The statute is largely grounded upon the federal “Racketeer Influenced and Corrupt Organizations” “(RICO)” act enacted in 1971, as are similar pieces of legislation existing in other states.

The application of OCCA is more limited than that of RICO. The law as enacted was codified with the legislative findings set out in Penal Law § 460.00, immediately preceding the definition section and the elements of the crimes of Enterprise Corruption. Although OCCA has its roots in the federal RICO statute “[t]he organized crime control act is a statute of comparable purpose but tempered by reasonable limitations on its applicability, and by due regard for the rights of innocent persons”.

To Be Cont...

The 4th Amendment to the United States Constitution

October 25, 2014,

The Officer testified that she observed an open duffel bag on the center console of the Toyota Camry and she noticed a wig protruding out. The duffel bag and the wig were in plain view. She testified that the duffel bag was searched at the scene incident to arrest. The Officer also testified that the inside and the trunk of the Toyota Camry were searched at the scene incident to arrest. On cross-examination, she testified that the duffel bag and the trunk were searched back at the 107th Precinct. It is well settled that “[a] police officer's entry into a citizen's automobile ... is a significant encroachment upon that citizen's privacy interest” An ordinary traffic infraction standing alone will not justify a search of the vehicle. However, circumstances unique to the automobile context justify a search incident to a lawful arrest when it is “reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle”

If probable cause justified the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search.

Furthermore, in these circumstances, the location of the car search, whether it is on the roadside or at the Precinct, is of no moment. This Criminal Court finds that both the duffel bag and the Toyota Camry were properly searched incident to the arrest of the defendants. Defendants' motions to suppress the items recovered pursuant to the search of the duffel bag and the Toyota Camry are hereby denied.

The Defendant allegedly made oral statements to Detective, oral statements and a written statement to Detective, and oral statements and a written statement to Detective.

Regarding the oral statements to Detective, defense counsel moves to preclude the use of said statements based upon the People's failure to timely serve notice of the statements to defendant. The People concede that the oral statements allegedly made by defendant to Detective were not previously turned over to defendant. The People indicated that they litigated the oral statements in order to use them on cross examination should defendant take the stand and testify. Therefore, the People sought to establish that the statements were voluntarily made by defendant. The People elicited testimony from Detective that he read “ Miranda Warnings,” using a Miranda sheet, to an individual who he referred to the defendant.

Thereafter, the individual made various statements to Detective. At the conclusion of the discussion, the individual declined to give a written statement. The prosecutor failed to have Detective identify defendant as the person who was read his “ Miranda Warnings,” and who voluntarily made the oral statements. Defendant's motion to preclude said oral statements is granted since the People failed to give the defendant timely notice of said statements pursuant to C.P.L. § 710.30. The People are also precluded from using said statements on cross examination since they failed to establish that defendant was the individual that voluntarily made the statements to Detective.

The Court has reviewed the photo array and examined each of the six (6) photographs contained therein. The six (6) photographs depict individuals who exhibit similar characteristics as the criminal defendant. This Court finds that a viewer's attention is not particularly drawn to the defendant. The Court holds that there was nothing unduly suggestive regarding the photo array, or the manner in which Detective presented the photo array to the complainant. This Court finds that the People established the reasonableness of the Police conduct and the absence of suggestiveness in the photo array.

Finally, this Court finds that the seal in the top left corner of the photo array is practically illegible to the naked eye. Upon a close examination one can discern the words “New York, New Jersey High Intensity Drug Trafficking Area.” Nevertheless, this Court finds that said seal did not taint the photo array since under these circumstances, even if the complainant had noticed the markings, they would not have influenced her selection of the defendant's photo. Consequently, defendant Washington's motion to suppress the identification is hereby denied.

Long Beach City Court...cont

October 25, 2014,

It is not required to reach those questions in the case at bar, however, since the short answer to the District Attorney's contention is that grand larceny in the second degree has not been joined with anything either in the waiver of indictment or the superior court information in this matter; rather, it has been substituted for the offense for which the defendant was held by the Long Beach Court.

In any event, under the facts of this case grand larceny in the second degree would not be an offense properly joinable with grand larceny in the third degree. The felony complaint in the Long Beach City Court charges the defendant with committing the offense of grand larceny in the third degree by stealing currency in excess of $200.00 and checks in excess of $80.00.

As may be noted the property stolen consists of cash and checks and little doubt can exist that the value of such items is readily ascertainable. Since the felony complaint did not charge grand larceny second degree, it is evident that the charge relates to cash and checks less that $1,500.00 in amount.

Thus the single act of stealing property over $250.00 but less than $1,500.00 in value constitutes the offense charged.

The statute relating to joinable offenses (CPL 200.20) provides that two offenses are joinable when they are based upon the same act. Under the statute, however, even if based upon the same act, there must be two offenses in order that they may be joinable.

'An 'offense' is committed whenever any conduct is performed which violates a statutory provision defining an offense; and when the same conduct or criminal transaction violates two or more such statutory provisions each such violation constitutes a separate and distinct offense. '

Under the facts of this case it would be evident that the defendant's act of stealing less than $1,500.00 did not violate another statutory provision, such as grand larceny in the second degree, and thus such higher degree of larceny did not constitute an additional separate and distinct offense which could be joined with the offense charged in the felony complaint.

Indeed, as alluded to above, the crime for which the defendant could consent to be prosecuted was not even included in the waiver of indictment or superior court information.

It is the conclusion of this Court, therefore, that the defendant is being prosecuted by superior court information for an offense not constitutionally permissible. Moreover, as previously pointed out by this Court unless expressly authorized by the constitution a defendant may not waive his right to be prosecuted by indictment and any such purported waiver is jurisdictionally defective. The only waiver permitted by the recent constitutional amendment is in relation to the offense for which the defendant was held in the Long Beach City Court for grand jury action, namely, grand larceny in the third degree and no such valid waiver exists in this matter.

For the foregoing reasons and for the reasons previously expressed by this Court the superior court information is dismissed and it is so ORDERED.