Law Enforcement Assistance Administration...cont

November 25, 2014,

Defendant's moving papers consist of a rambling, prolix series of allegations, couched mainly in the form of rhetorical questions, attacking the legality of the major offender program. Without avowing any particular constitutional deprivation, criminal defendant seems to be implying that he is being denied some fundamental right by being selected for prosecution as a major offender. Such vagueness is due, no doubt, to the difficulty he has in recognizing just what right it is that he is being denied. He certainly cannot claim that he is being denied the right to a speedy trial. If anything, the program augments that right.

Generally speaking, the gravamen of defendant's complaint seems to be that by being cast as a defendant in the accelerated prosecution program, he is being deprived of the right to be treated the same as other defendants in the criminal process. This argument is without merit.
At the root of this challenge is the oft-heard criticism that defendants prosecuted under the major offense program are being denied the plea bargain opportunities that are available to those not so prosecuted. There is, of course, no constitutional right to a plea bargain. In stating this principle, there is no intention here to disparage plea bargaining or gainsay its efficacy in the criminal justice system.

Plea bargaining does in fact occur in the overwhelming percentage of major offense prosecutions but not on terms in which the elements of delay and staleness of prosecution are a factor. In most instances, the plea offered is to the highest count of the indictment or to the next highest count. Doubtless, it is this feature of the program that is so distressing to a defendant. If there is a certain intransigence in the position of the prosecutor as regards his plea offer in a major offense case, it is due to the fact that his case is relatively strong, well prepared and free of the debilitating effect of delay.

It should be noted at the outset that the major offense program involves a decision by the District Attorney of Bronx County to prosecute certain individuals by means of a procedure different from what is used to prosecute the majority of those accused of the commission of felonies. It is not a decision to prosecute only certain types of crimes or individuals. If a particular defendant is not selected for prosecution under the major offense program, he is prosecuted nonetheless. In short, what is involved is selective prosecution, not selective enforcement.

To Be Cont...

They were arrested at the next station...cont

November 25, 2014,

The Federal and State constitutions ensure those accused of a crime the right to assistance of counsel. Unlike the Federal standard which requires a showing that there is a reasonable probability that the attorney's errors affected the outcome of the case, the core of the inquiry in New York is whether criminal defendant received meaningful representation. More specifically, the question is whether counsel's mistakes were so prejudicial that they deprived defendant of a fair trial. A criminal defendant claiming ineffective assistance must demonstrate the absence of strategic or other legitimate explanations' for counsel's allegedly deficient conduct.

A defendant's right to representation entitles him to an attorney who conducts appropriate investigations, both factual and legal, to determine if matters of defense can be developed, and to allow himself time for reflection and preparation for trial. A complete abdication of the duty to investigate, for no strategic reason, renders counsel ineffective. The failure to seek an adjournment of the proceedings to arrange to interview witnesses proposed by a defendant in order to determine the relevance, materiality and potential impact of the testimony effectively denies meaningful representation' as guaranteed under the New York Constitution.

Defendant argues that he was denied effective assistance of counsel, because his attorney failed to investigate evidence that would have undermined the People's case and created reasonable doubt as to his complicity in the theft. Defendant alleges the existence of potential witnesses, documentary evidence and physical evidence that would tend to support his claim that he boarded the Lexington Avenue express train at the Broadway/Nassau stop, not at the 42nd Street station, where Officer IR testified that he saw defendant on the platform seconds before he got on the train with KJ and HT.

Because IR is the only eye witness, the jury relied on his observations to establish defendant's ties to KJ and HT and to draw the inference that the three were acting in concert. It behooved defense counsel, therefore, to consider bringing forth evidence that would cast doubt on IR's testimony. This is where defendant's lawyer failed. Reckless Endangerment could have been charged.

Counsel had a duty to search for evidence potentially favorable to the defense which could have been utilized at trial. At a minimum, he should have visited or sent an investigator to visit the ACS office, obtained a printout of defendant's Metrocard and inquired about subway surveillance tapes. An adequate investigation would have provided defendant's attorney with enough information to make an informed, deliberate decision about whether such evidence existed and whether to introduce it.

On the eve of trial, defense counsel learned that KJ, his only witness, refused to testify and could not be located. KJ was, therefore, unavailable as a matter of law. At that critical juncture, the attorney had everything to gain and nothing to lose from undertaking an investigation that would likely have revealed a creditable source of reasonable doubt. By failing to seek an adjournment for that purpose, counsel left unpursued the only remaining defense.
Defendant's attorney offered no sound reason for his derogation of duty. His failure to investigate was not part of a legitimate strategy, it was the result of neglect. Because defendant was denied meaningful representation, he is entitled to a new trial without arraignment.

The defendant's remaining arguments and find them to be without merit. Defendant's motion is granted, the judgment of conviction is vacated and the matter is adjourned to Part 51 for a new trial on April 14, 2011.

Appellate Division's reversal on the law was itself erroneous...cont

November 24, 2014,

We put to one side this latter instruction concerning the presumption. In the first place, no objection or exception was taken to it, and, consequently, this item could not have been considered an error of law by the Appellate Division; in the second place, what was said by the trial judge in connection with the presumption, when read with what immediately followed, may not be labeled misleading; and, in the third place, any possible ambiguity was thoroughly cleared up, any error cured, by the criminal court's charging the defendant's request on the subject.

This leads us to the question for decision, the correctness of the criminal court's charge on the subject of accomplices and corroboration. Before turning to it, however, we must say that, on the record before us, the patients who testified were, as a matter of law, not accomplices.

A witness may not be considered an accomplice unless the evidence establishes that he criminally participated with the defendant in the commission of the crime charged against the latter. And, since it is in the nature of a defense, the burden, we have said, 'rested on the defendant to show that the witness was an accomplice. The defendant fell far short of the burden imposed. As a matter of fact, it was the defendant's position, both in his counsel's opening and in his testimony, that the patients who testified against him suffered from bursitis and that he actually treated them for that ailment and that, if any statement of claim was erroneous in its recital to that effect, the error was to be ascribed to the volume of cases he had and to forgetfulness or carelessness on his part or that of others who assisted him in filling out the forms. Beyond this, there is just no evidence to support the hypothesis that any of the patients had co-operated with the defendant or were assisting him in the perpetration of a fraud on the insurance company.

According to the testimony of each and every one of them, they went to him for examination and treatment for particular ailments and did not know that he was guilty of misrepresentations in filling out the statements of claim which he sent to the insurer. It is true, as the defendant claims, that the district attorney did not ask the patient-witnesses whether they knew that a fraudulent claim was to be made. But it was not incumbent on the prosecutor to ask that question. In view of the position asserted by the defense in its opening, the matter was completely beside the point and irrelevant.

The only conclusion to be drawn from the evidence was that the patients acted in good faith, that they were not aware of the fact that the services rendered by the defendant were not covered by Blue Shield and that, if their medical drug bills were taken care of under Blue Shield, they truly believed that that was proper.

Toi Be Cont...

They were arrested at the next station...cont

November 24, 2014,

Defense counsel admitted that before the commencement of the trial, criminal defendant had informed him that on the morning of December 2, 2009, defendant went to an ACS office downtown. The trial attorney could not, however, remember seeing an ACS document memorializing the visit. A payment voucher, which defendant had shown his attorney before trial, was presented to this court for the first time as an attachment to defendant's motion papers. Printed on the document is defendant's name, ACS provider number and address. It covers the November 2009 pay period. The stamped form identifies by name three children in defendant's care. On the bottom are three hand-written initials LME and the date 12/2/09.

Criminal Defendant's lawyer testified that he did not investigate defendant's claim that he was not present on the 42nd Street platform, the location where IR said he spotted defendant in conversation with his two accomplices, KJ and HT, seconds before they committed the crime. Counsel made no effort to contact ACS officials to investigate whether they could corroborate defendant's visit. The attorney did not attempt to obtain a printout of defendant's Metrocard transaction record which would indicate defendant's point of entry into the subway system and the time that the card was swiped. The lawyer did not inquire about the existence of subway station surveillance tapes that may have captured defendant at the Broadway/Nassau stop. Nor did defense counsel reach out to the program on 125th Street to determine whether defendant was expected that morning.

In determining whether to hold a person criminally liable for the acts of another, the ultimate question for the jury is whether the defendant, acting with the state of mind required for the commission of the sex crimes, intentionally aided another person as an accomplice. Proof of an accomplice's mental state may be inferred from his actions and the circumstances surrounding the commission of the offense.

In the context of subway crime, conduct held to be probative of an accomplice's culpable state of mind has included: associating with a group of other juveniles minutes before boarding a subway car, surrounding and threatening the victim and then dispersing together at the sight of a police officer; conversing with the main actor and lookout behavior on a deserted subway platform before the principal culprit robbed the victims as the accomplice stood in a stairwell and holding the subway door open while checking the platform, consulting with the main actor right before he threatened the victim and exchanging high fives as they fled the scene.

To Be Cont...

Defendant was arrested on December 1,

November 23, 2014,

To cover these conversations, on October 15 the District Attorney obtained an amendment to the October 12 warrant to include communications intercepted relating to bribery.

Largely based upon the information gained from these wiretaps, criminal defendant was arrested and indicted for bribe receiving and grand larceny. She moved to suppress the wiretap evidence on the ground, Inter alia, that the prosecution failed to obtain a warrant amendment as soon as practicable. Soon after the motion was denied, defendant pleaded guilty to one count of grand larceny in the third degree.

We reverse. Once the police obtain sufficient information which manifests probable cause to believe that a crime not covered in the original warrant has been committed, it is their duty to seek an amendment of that warrant. Such an amendment must be sought as soon as practicable (CPL 700.65, subd. 4). In the case at bar, probable cause to believe an uncovered crime was being committed existed, At the latest, on September 27. During the conversation intercepted that day, it became evident that defendant might be engaging in the crime of bribery receiving in the second degree. Yet, 18 days elapsed until an amendment was procured. Especially since the police overheard other, earlier conversations of an incriminating nature, this delay was unwarranted. Moreover, in the interim, the District Attorney applied for a warrant amendment on September 29 and for a separate warrant on October 12 without informing the court of the intercepted bribe-related communications. Also noteworthy is the fact that the original warrants of September 9, under which the instant communications were intercepted, were designed to secure evidence of auto theft, but no such evidence ever appeared. Where, as here, the incriminating material discovered was not described in the original warrant, it is likely that the police have undertaken a subterfuge search which has no specific purpose and which is an illegal intrusion of the right to privacy. For these reasons, we believe that the warrant amendment of October 15 was not obtained as soon as practicable and that the motion to suppress should have been granted.

This appeal also raises the question of the denial of defendant's right to a speedy trial. Defendant was arrested on December 1, 1976 and was released on bail. The plea of guilty was entered on March 13, 1978, some 151/2 months later. However, a review of the procedural sequence in this case demonstrates that most of the delay was occasioned by defendant's numerous motions to dismiss the indictment, as well as adjournments granted upon defendant's consent. Additionally, there is evidence that the prosecution was prepared to begin the trial well before the plea of guilty was entered. We conclude that there was no denial of defendant's right to a speedy trial.

They were arrested at the next station...cont

November 23, 2014,

IR testified that as an express train was pulling in, he observed, at a distance of 10 feet away, three men in conversation on the platform: KJ, HT and defendant. A few passengers exited the train. The trio boarded the second subway car and stood near a door. MD followed. IR and RM entered the same car and sat directly behind KJ, HT and defendant. The other officers were located in the rear portion of the first car.

KJ positioned himself behind MD. HT stood on MD's right side and defendant flanked MD on the left. As the train took off, HT, while looking in the direction of Lieutenant KC and Sergeant AR, said to KJ and defendant, those guys are cops. KJ stated, fuck it I'm going to take it. HT replied, go ahead we got you, we will cover for you. Then, HT and criminal defendant shifted their bodies. KJ moved close to the decoy officer, bumped him, removed the iPhone from the backpack and placed it on his person. KJ, HT and criminal defendant sat down. They were arrested at the next station, the 59th Street stop.

MD testified that on December 2, 2009, the decoy team was working the Lexington Avenue subway line patrolling back and forth. MD did not state where he had boarded the train. Nor did he did mention observing KJ, HT and defendant chatting on the 42nd Street platform. MD testified: when I entered the train I noticed both defendants in front of me. A third person was with them. MD testified that he was facing the third individual and observed him with his own two eyes. The third person repositioned himself behind MD. As the subway car moved between stations, MD heard speech in back of him but was not sure who was talking or what was said. MD felt a bump. IR then pulled on his collar, signaling to MD that the iPod had just been stolen. MD exited the train at 59th Street and saw the two defendants being placed on the wall.

MD made no in-court identification of defendant as one of the three assailants. Nor did MD state that defendant was one of the two men placed on the wall. Aside from gender, MD offered no description of the perpetrators.

Defense counsel did not cross examine MD. I held a hearing on December 7, 2010. The motion was marked submitted on February 4, 2011. Defendant testified on his own behalf. The People called defendant's trial lawyer. I find both men credible, except in one respect. I adopt defense counsel's claim that he advised defendant that it was his call as to whether he would testify. I reject defendant's allegation that his attorney never informed defendant that he was the ultimate decision maker in the robbery.

Defendant is an independent daycare provider, pursuant to a program run by the New York City Administration for Children's Services. The agency pays him to care for minors eligible for ACS subsidized child care services.

On the morning of December 2, 2009, defendant visited the ACS office at 151 William Street in Manhattan. He had planned to travel from there to a program on 125th Street. After concluding business at ACS, defendant walked to the nearby Broadway/Nassau subway stop. In the station, he ran into KJ and HT, whom he had not seen in 16 years. According to defendant, the three boarded a northbound Lexington Avenue line express train and did not exit at the 42nd Street stop. They had been on the train for about 10 minutes when it pulled into Grand Central Station.

To Be cont...

CPL 440.10 (subd. 3, par. [a])

November 22, 2014,

Defendant's claim that the trial court abused its discretion in not providing a hearing on this charge suffers from two defects. First, although defendant waited for ov three years to bring the instant proceeding, his attorney made no effort to explain this delay other than to say he was busy working on defendant's appeal. Moreover, nowhere does criminal defendant disclose when he learned of the alleged coercive tactics employed by the prosecutor. As a result, defendant has failed to show that he used due diligence in adducing such facts prior to sentencing as required by CPL 440.10 (subd. 3, par. [a]). The second flaw in defendant's position is that he has failed to allege sufficient facts to show that the prosecutor's allegedly coercive tactics could have prejudiced his defense. Defendant was well aware that BL had given a signed statement on July 9, 1975, nearly three weeks before she was subpoenaed to appear before the Grand Jury, in which she stated that she had spoken with Mrs. SF on Wednesday morning, June 18, the day Mrs. SF died.

Nevertheless, criminal defendant did not call BL as a defense witness at trial, nor has he made any effort to explain why. If the reason for failing to do so was his knowledge that BL had subsequently signed the contradictory statement on July 29 under the improper direction of the District Attorney, then his failure to promptly investigate the circumstances surrounding this change and immediately bring the matter to the court's attention is inexcusable. If, however, the reason is that BL' original, arguably equivocal, statement and her anticipated testimony would not have been helpful to the defense, then the prosecutor's alleged misconduct did not prejudice the defendant. Finding himself on the horns this dilemma, defendant not only failed to make the requisite showing of due diligence (CPL 440.10, subd. 3, par. [a] ), but he also failed to sufficiently allege that he was prejudiced by the alleged misconduct which, because it would have to be proven for defendant to succeed in having his conviction vacated, must be alleged. (CPL 440.30, subd. 4, par. [b].) Hence, defendant has not met the minimum requirements necessary for the court to either vacate his conviction or, in the alternative, order that an evidentiary hearing be held.

We note in passing that the mere act of interviewing BL on July 29, 1975 and then deciding not to present her testimony to the Grand Jury does not constitute prosecutorial misconduct per se. Indeed, as the official charged with the orderly presentation of evidence to the Grand Jury, it is sound practice for the prosecutor to interview and, when appropriate, dismiss prospective witnesses in order to eliminate unnecessary or equivocal material so that grand jurors' time can be conserved. This is especially so where, as here, the prospective witness had given a prior statement, conceded to have been freely made, wherein she stated that she was unsure of the very facts that she would be called upon to testify to before the Grand Jury.

Consequently, it cannot be said that the trial court abused its discretion in denying defendant's motion insofar as it was based on prosecutorial misconduct.

Defendant's claim of juror misconduct, which is apparently premised on CPL 440.10 (subd. 1, par. [f]), is equally unavailing. That section provides that the court may vacate a judgment of conviction upon the ground that improper and prejudicial conduct not appearing in the record occurred during a trial resulting in the judgment which conduct, if it had appeared in the record, would have required a reversal of the judgment upon an appeal therefrom. Once again, however, the only explanation given for failing to promptly investigate and report these alleged instances of juror misconduct is that defense counsel w busy preparing defendant's appeal. We believe that this explanation, in light of defendant's three-year delay in bringing this motion, is insufficient, as a matter of law, to satisfy the due diligence requirement of CPL 440.10 (subd. 3, par. [a] ). No drug or weapon was found.

Furthermore, with respect to all but one of defendant's claims of juror misconduct, only hearsay allegations contained in the affidavits of defense counsel and a private investigator employed by him have been proffered in support thereof. Since no explanation was given as to why affidavits could not be obtained from jurors who allegedly admitted to having acted improperly or from those jurors who allegedly observed other jurors acting improperly, and since the only juror who gave an affidavit, EG, did not state which or how many jurors heard an allegedly improper comment by juror, defendant cannot be heard to say that the trial court abused its discretion in denying the motion on this ground.

We also note that, as a matter of policy, efforts to undermine a jury's verdict by systematically questioning the individual jurors long after they have been dismissed in hopes of discovering some form of misconduct should not be encouraged.

Defendant's final ground for vacatur is that the Doctor who is a medical expert who testified for the prosecution, misrepresented facts critical to his opinion concerning the time of Mrs. SF's death. While defendant seeks to frame this contention in terms of CPL 440.10 (subd. 1, par. [b] ), he is in actuality basing his claim on newly discovered evidence pursuant to CPL 440.10 (subd. 1, par. [g] ). Consequently, the trial court's exercise of discretion in denying the defendant's motion on this ground is beyond our power to review.

They were arrested at the next station

November 22, 2014,

On August 24, 2010, after a jury trial, defendants, AR and HT, were convicted of Grand Larceny in the Fourth Degree (PL § 155.30[5]) and Criminal Possession of Stolen Property in the Fifth Degree (PL § 165.40).

Defendant, AR, moves, pursuant to CPL § 440.10, to vacate the criminal conviction, on the ground that he was deprived of his constitutional right to effective assistance of counsel.

On December 7, 2009, the Grand Jury indicted defendant, HT and KJ, upon the theory that defendant and HT served as accomplices to KJ, the principal actor in a subway robbery pickpocketing. The prosecution alleges that as KJ removed an iPhone from the knapsack of an undercover police officer, defendant and HT used their bodies to conceal KJ's actions.

On March 25, 2010, Supreme Court Justice dismissed the indictment against KJ, for the People's failure to afford him the opportunity to testify before the Grand Jury.

A month later, the prosecution re-presented the charges against KJ to the Grand Jury. The People called two witnesses: NYPD Officers IR and MD. Both had been assigned to subway anti-crime duty on December 2, 2009. IR testified that he witnessed the theft. MD described his role as the decoy, the officer who wore the backpack that contained the iPhone.

KJ also testified, denying the charges and offering a different version of the events. According to KJ, on December 2, 2009, he was in Far Rockaway, Queens, visiting his mother. That morning, he boarded a westbound "A" train and ran into his friend HT. KJ and HT got off at the Broadway/Nassau stop and were transferring to the Lexington Avenue line when, by happenstance, they bumped into defendant. After KJ, HT and defendant got on a northbound express train, KJ noticed a bag near a chair located in the corner of the subway car. He examined the bag and touched the iPhone to see if it worked. KJ then set down both items on the chair. He told the Grand Jury that defendant and HT didn't do anything felony. They didn't go in the bag.

Apparently, the grand jurors believed KJ. His indictment was not resurrected. This had no impact on defendant and HT, because in a prosecution based on accessorial liability it is not a defense that a co-actor has not been prosecuted for or convicted of any offense based upon the conduct in question. PL § 20.00.

Before the trial commenced, defendant's attorney made repeated phone calls to KJ, imploring him to testify on defendant's behalf. KJ refused. He had moved to California and could not be located.

The People allege that on the morning of December 2, 2009, Officers IR and MD, both wearing plain clothes, were participating in a five-man decoy operation on the Lexington Avenue subway line. At about 10:00 a.m., they were standing in Grand Central Station, on the northbound platform of the 4/5/6 trains. MD, the decoy, was dressed as a tourist, sporting patent leather shoes, a green blazer and an I Love New York cap. The knapsack on his back contained an iPhone in an exterior mesh pouch. Officer RM, Lieutenant KC and Sergeant AR were the other members of the team.

To Be Cont...

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Law Enforcement Assistance Administration

November 21, 2014,

Defendant, charged with robbery in the first degree and related offenses, moves for a dismissal of the indictment and for other forms of relief on the ground of discriminatory prosecution in that he is being prosecuted as a major offender by the Bronx District Attorney. The major offense program, which has been operating in Bronx County since July 2, 1973, with the financial assistance of the Law Enforcement Assistance Administration, is basically a program of accelerated prosecution. It is directed towards the perpetrator of the serious crime and the repeat offender. Its goal is to insure swift and certain justice for such malefactor.

As part of the program, the Bronx District Attorney's office instituted a system of screening procedures which identifies those cases in which the crime is particularly heinous or the alleged offender is a serious recidivist. Those cases are then evaluated by the major offense bureau for selective prosecution. The criminal prosecution of major offense cases is marked by limited plea bargaining, full disclosure to defense counsel, immediate and thorough case preparation, and the assignment of a single assistant district attorney to handle a given case through all stages, from inception to conclusion.

A Bronx County Criminal lawyer said that in an evaluation of the bureau's performance in the first three years of its existence, it was found that the median time between arrest and case disposition was 97 days compared to a median time of 400 days for all other felony cases prosecuted by the Bronx District Attorney. A comparison between major offense cases and a select group of similar cases from the caseload of the Bronx District Attorney's Supreme Court bureau shows an overall conviction rate of 96% for the former and 84% for the latter; after trial, the conviction rate was 92% for the former and 52% for the latter. In cases prosecuted by the major offense bureau, 94% of those convicted were incarcerated as opposed to 79% in the comparison group cases. A survey of dispositions in a typical year since the program's inauguration shows that the average maximum sentence for a defendant prosecuted by the major offense bureau is 10 years. In the comparison group the average maximum is 3.5 years.

To Be Cont...

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CPL 460.50(5)

November 21, 2014,

The two cases hereunder involves an appeal on conviction involving the crime of grand larceny.

The first was an appeals by (1) criminal defendant NJ from a judgment of the County Court, Nassau County, rendered October 14, 1983, convicting him of grand larceny in the second degree, attempted grand larceny in the second degree, and falsifying business records in the first degree, upon a jury verdict, and imposing sentence; and (2) defendant DC from a judgment of the County Court, Nassau County, rendered September 16, 1983, convicting her of grand larceny in the second degree and falsifying business records in the first degree, upon a jury verdict, and imposing sentence.

Judgments affirmed, and the matters are remitted to the Criminal County Court, Nassau County, for further proceedings pursuant to CPL 460.50 (subd. 5).

On these appeals, defendants contend, inter alia, that they are entitled to dismissal of the indictment against them because, among other things, the record contains insufficient evidence to satisfy the corroboration requirement of CPL 60.50. We disagree.

CPL 60.50 provides that person may not be convicted of any offense solely upon evidence of a confession or admission made by him without additional proof that the offense charged has been committed. In meeting this requirement of additional proof, it is sufficient to show corroborating circumstances which, when considered in connection with the confession are sufficient to establish the defendant's guilt in the minds of the jury beyond a reasonable doubt. While is not enough that the additional proof partially corroborates the truthfulness of the confession confession may, however, be used as a key or clue to the explanation of circumstances, which, when so explained, establish the criminal act. Moreover, it is not necessary that the proof 'every reasonable hypothesis save that of guilt'the statute is satisfied by the production of some proof, of whatever weight, that a crime was committed by someone.
The People's proof herein, which consisted of, inter alia, documentary evidence of the invoices of BR, Inc., to its X-ray film supplier, EP X-Ray Company and to Franklin General Hospital, as well as testimony as to the manner in which X-ray film shipments were made from EP to Franklin General Hospital, was sufficient corroborating evidence, together with each defendant's confession or admissions, to establish the scheme whereby BR, Inc., together with defendants, arranged for the shipment of fewer X-ray films than were ordered and paid for by Franklin General Hospital, which was the basis for the counts of the indictment. As noted in People v. Lipsky: in addition to the confession there is proof of circumstances which, although they may have an innocent construction, are nevertheless calculated to suggest the commission of crime, and for the explanation of which the confession furnishes the key, the case cannot be taken from the jury for a non-compliance with the requirement of.
Accordingly, there was sufficient evidence to support the jury's findings. We have considered defendants' other contentions and find them to be without merit.

The second case is an appeal by defendant from a judgment of the County Court, Nassau County, rendered April 18, 1989, convicting her of scheme to defraud in the first degree, grand larceny in the second degree (three counts), grand larceny in the third degree (ten counts), and grand larceny in the fourth degree, upon a jury verdict, and imposing sentence.
Contrary to the defendant's contention, we find that the trial court did not improvidently exercise its discretion in denying her motion for a severance on the ground that defenses which might be offered by her codefendants would be antagonistic to her defense. The proof against the defendant and her codefendants was virtually identical since all of them were charged with participating in the same scheme to credit card fraud. Furthermore, the ground advanced simply did not constitute good cause to order separate trials.

Nor do we find error in the trial court's denial, without a hearing, of the defendant's motion to controvert a search warrant. The affidavit upon which the warrant was issued contained more than enough information to satisfy the court that there was probable cause to believe that the defendants were engaging in conduct which constituted the crimes, among others, of scheme to defraud and grand larceny. The defendant failed to make a preliminary showing that a false statement, made knowingly and intentionally, or with reckless disregard for the truth, was included in the affidavit, and thus no hearing was. We have examined the defendant's remaining contentions and find them to be without merit.

Accordingly, the judgment is affirmed, and the case is remitted to the County Court, Nassau County, for further proceedings pursuant to CPL 460.50(5).

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CPL 20.40 (2) (c) ...cont

November 20, 2014,

A court may thus exercise "protective jurisdiction" if the criminal defendant's conduct has a "materially harmful impact" upon governmental processes or the welfare of the community. It is not sufficient under the statute that the conduct caused an injury to a particular person; what is required is injury to the county's governmental processes or community as a whole, and that the defendant intended that effect or acted with knowledge of such effect.

This court is not aware of any cases applying CPL 20.40 (2) (c) to confer jurisdiction over a prosecution charging a criminal defendant with failure to register under SORA. A starting point in understanding this statute as it applies to the present case is the Court of Appeals analysis, and the examples it provided in its opinion.

Some cases have found protective jurisdiction where conduct in one county would further the commission of a potential crime in the county in which a prosecution for such conduct (but not the future crime) was brought. Other cases have found protective jurisdiction where a defendant's out-of-county conduct would have an effect particularly on governmental processes. CPL 20.40 (2), however, is not limited to these situations, for it extends to any conduct that has a material effect on the community, if such conduct was performed with the requisite intent under the statute.

Considering the policy behind SORA, this court concludes that Bronx County is a county in which this action was properly brought. As stated by the United States Court of Appeals for the Second Circuit, "The legislative history of the [SORA] supports the preamble's characterization of the twin purposes served by the SORA protecting communities by notifying them of the presence of individuals who may present a danger and enhancing law enforcement authorities' ability to fight sex crimes."

The defendant's alleged failure to register does not have an effect only on a particular individual (such as the assault victim), but instead has an effect on the community as a whole in which he resides namely, Bronx County, because the failure to register impedes notification to the community of sex offenders living in that community. It also impinges on the ability of law enforcement authorities to fight sex crimes, and thereby also has an effect on the governmental processes of Bronx County. The defendant's alleged failure to register thus meets a prime element of the jurisdictional test enumerated by Fea. Further, his alleged failure to register has an effect that is material as required by CPL 20.10 (4). The lack of registration is material in the community in which an offender resides because efforts to "conduct investigations and quickly apprehend sex offenders are impaired by the lack of information about sex offenders" in the community. Likewise, the failure to register deprives the community of the statutory information. Indeed, lawmakers have found the need for sex offender registration to be so critical that all 50 States have sex offender registration laws in effect. Moreover, the Federal Government has enacted legislation to encourage States to adopt laws requiring convicted sex crimes offenders and offenders against children to register with law enforcement agencies. Finally, because the purpose behind registration to protect a sex offender's community by requiring the offender's registration is fairly obvious, this court concludes that it has protective jurisdiction because the facts alleged, if true, would establish that the defendant failed to register, knowing that such failure would be likely to have a material effect in Bronx County.

In sum, the court concludes that the materially harmful impact to Bronx County caused by the defendant's alleged failure to register in New York County furnishes grounds, pursuant to CPL 20.40 (2) (c), for this court to properly exercise jurisdiction over the prosecution in the instant matter.

Accordingly, the defendant's motion to dismiss is denied.

Criminal Division in Bronx Supreme Court...cont

November 20, 2014,

"The well-recognized rule is that such adjudication rests within the sound discretion of the court and depends upon all of the facts and circumstances in the case. It is not an abuse of discretion to reject the recommendation of the District Attorney." Defendant disagrees, and points to the language in subdivision (1) (b) as applicable to her because, in addition to the fact that she was under the age of 19 at the time of the incident, the case was never presented to a grand jury, having originated in and remained pending in New York City Criminal Court at the time the sole felony charge was dismissed. Thereafter, there was a "merger" of the Bronx branch of the Criminal Court of the City of New York into Supreme Court, Bronx County, Criminal Term, so as to create an all new Supreme Court, Bronx County, Criminal Division for disposition of all felony and misdemeanor charges. However, counsel argues, but for the merger of Criminal Court into the new Criminal Division, defendant's case would have been disposed of in the local court, thereby triggering the mandatory provision in subdivision (1) (b).

The authority for the creation of the Criminal Division is an administrative order promulgated by Chief Administrative Judge, establishing the Criminal Division in Bronx Supreme Court, effective September 21, 2004. As counsel further argues, pursuant to those new rules, under the last section entitled Procedure upon transfer of a criminal case hereunder: "Each case transferred from the Criminal Court of the City of New York to the Supreme Court and referred for disposition to the criminal division thereof pursuant to section 142.2 of this Part shall be subject to the same substantive and procedural law as would have applied to it had it not been transferred. An appeal taken from the trial court in such a case shall be taken to the same intermediate appellate court to which such appeal would have been taken had the case not been transferred hereunder."

Clearly, the creation of the Criminal Division has spawned issues unique to the Bronx. Indeed, there have already been a slew of decisions addressing some of the special problems that have arisen.

With all respect to my colleague, I am not prepared to go so far. I am mindful of his arguments and find them sound. However, I find persuasive the fact that the Legislature neither anticipated nor was it formally consulted on the creation of the Criminal Division. While that branch of government may now act if this situation becomes apparent enough to gain Albany's attention, it is clear that the Legislature's intent was to afford youthful offender status and its benefits unless there is an overriding reason not to. In this regard, Judge's thoughtful decision for a unanimous Court of Appeals, remains instructive. Noting the difference between local criminal courts, which may only try cases up to the misdemeanor level, and superior courts such as Supreme Court, he wrote :"In light of this jurisdictional underpinning, it becomes clear that the classification in CPL 720.20 is based on the gravity of the sex crimes with which a youth is charged. Viewing the distinction as one resting upon the gravity of the crime charged, we are of the opinion that there is a rational basis for distinguishing between a youth accused of a felony and one charged with a misdemeanor. The seriousness of the crime charged in a Grand Jury indictment for a felony offense, considered in conjunction with the defendant's prior record or behavior, is of significant bearing upon the question whether youthful offender status should be afforded to a particular individual."

Because the Chief Administrative Judge's rule has done away with the jurisdictional distinction, albeit for the neutral purpose of making the disposition of criminal cases more efficient in the Bronx, the Legislature's true intent would be thwarted by literal adherence to the statute's scheme. Accordingly, the defendant's motion is granted and I will resentence the defendant as a mandatory youthful offender. Given this resolution, there is no necessity of reaching defendant's remaining constitutional arguments.