Nassau County Police Form 38 ...cont

October 22, 2014,


Thus, there is simply no other conclusion but that defendant was using funds invested by subsequent investors to meet his prior obligations. Investors who wished to withdraw funds from the plan were paid from funds supplied by incoming investors. Hence, defendant's ability to fulfill his promises was premised solely on the illegal continuation and expansion of receiving increased investment funds, which continuation was in jeopardy from the inception. The finding that defendant was conducting a fraudulent scheme rather than a legitimate investment program is further bolstered by his boast to associate that if his conduct became known, the Ponzi scheme would thereafter be known as the scheme.

Further evidence of defendant's fraudulent intent may be inferred from his actions after the arrest of one of his Nassau County agents. When the scheme began to fall apart, defendant fled to New Jersey, stating that he did not want to be bothered by the District Attorney. He destroyed his records relating to the plan and instructed his agents to do likewise. Defendant hoped that by raising the funds necessary to pay back investors he would be able to stave off any larceny charges.

And, of course, defendant's voluntary statements after his arrest in Sweden destroy any claim that he was merely an overly optimistic investment advisor whose fortunes plunged due to an unexpected downturn in the market.

It is true that defendant's operations assumed some of the forms of a legitimate business venture. Nevertheless, beneath it all the manner in which he obtained possession of the money of his victims was by means of false promise. No other conclusion can be drawn from the record but that defendant plainly intended from the inception, and at every stage of his operation, to obtain the money of others by means of fraudulent devices and then appropriate that money to his own use. In sum, the evidence in these cases is wholly consistent with guilty intent and excludes to a moral certainty every hypothesis except that the criminal defendant intended to perform.

As an additional ground for reversal, defendant maintains that principles of both statutory and constitutional double jeopardy precluded his trial in Nassau County in connection with drug charges arising out of the same plan which was the predicate for his prior Suffolk County convictions. The flaw in these arguments lies in the fact that each larceny was an independent criminal transaction which can be prosecuted independently. Inasmuch as none of the victims named in the Suffolk County indictment were subjects of the subsequent Nassau County prosecution, there was no bar to the second trial.

Executive Law § 63(3)

October 22, 2014,

Appeals by the defendant, as limited by his motion, (1) from a sentence of the Supreme Court, Queens County, imposed January 27, 1988, the sentence being an indeterminate term of 2 to 4 years imprisonment, upon his conviction of grand larceny in the third degree, after a plea of guilty, and (2) by permission, from an order of the same court dated June 13, 1990, which denied his motion pursuant to CPL 440.20 to vacate his sentence.

A Nassau County Criminal attorney said that on May 14, 1987, at the corner of the Van Wyck Expressway and Atlantic Avenue in Queens, the defendant stole a 1986 Pontiac Firebird. Approximately one hour later, the defendant used the stolen vehicle as a getaway car after an accomplice forcibly stole a woman's purse in Nassau County. After a high speed chase with police, the criminal defendant crashed the car into a telephone pole and was arrested.

In Queens, the defendant was charged, inter alia, with grand larceny in the third degree under Queens County Indictment Number 3518/87. In Nassau County, he was charged, inter alia, with robbery in the second degree.

On August 17, 1987, in the Supreme Court, Queens County, the defendant pleaded guilty to one count of grand larceny in the third degree in full satisfaction of the Queens County indictment.

The record indicates that sentencing in Queens County was adjourned numerous times because the defendant was unable to resolve the Nassau County charges. On December 1, 1987, the Supreme Court, Queens County, adjudicated the defendant a second felony offender and specifically informed him that this would be the last adjournment given to enable him to resolve the Nassau County charges.

The Nassau County charges were not resolved by January 27, 1988. The defendant, by counsel, then moved orally in the Supreme Court, Queens County, to vacate his plea. The Supreme Court denied the application, noting that there had been more than five adjournments to allow the defendant to dispose of the Nassau County charges.

On April 21, 1988, the defendant pleaded guilty in the County Court, Nassau County, to one count of robbery in the second degree in satisfaction of Nassau County Indictment Number 66199. The Nassau County Court expressly advised the defendant that the sentence would be for an indeterminate term of four to eight years imprisonment to run consecutively and not concurrently with the two to four years imprisonment he was then serving on the Queens County indictment.

The defendant subsequently moved to vacate the instant [179 A.D.2d 817] sentence imposed on Queens County Indictment Number 3518/87, claiming, inter alia, that the guilty plea had been induced by an unfulfilled promise and that the time limitations imposed by the Supreme Court, Queens County, to resolve the Nassau County charges were not set forth on the record.
On December 1, 1987, the Supreme Court, Queens County, made its intention to go forward with sentencing on January 27, 1988, absolutely clear, and the defendant was aware that he would have to resolve the Nassau County charges before that date in order to take advantage of the promise of concurrent terms of imprisonment. Since the condition for the promise of concurrent terms of imprisonment had not been met, the court was not obligated to allow the defendant to withdraw his guilty plea. In addition, the defendant waived any right he may have had to request the fulfillment of the original promise as to sentence, or in the alternative, withdrawal of his guilty plea in Queens County, when he agreed to the imposition of consecutive terms of imprisonment upon pleading guilty in Nassau County. Further, no circumstances in this case warrant a modification of the defendant's sentence in the interests of justice.

To Be Cont...

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The 4th Amendment to the United States Constitution

October 21, 2014,


The 4th Amendment to the United States Constitution guarantees that Citizens shall be free of unreasonable searches and seizures, of individual liberty and privacy, and the right to be left alone. The landmark Court of Appeals decision in a case, firmly established that “Before the police may stop a person pursuant to the common-law right to inquire there must exist at that moment a founded suspicion that criminal activity is present,” and “the police may not justify a stop by a subsequently acquired suspicion resulting from the stop.” It has been long held that the stop of an automobile constitutes a limited seizure of its occupants for federal and state constitutional purposes. The Court of Appeals has specifically held that in order for a Police Officer to legally stop a vehicle, the Officer needs to have either observed a violation of the Vehicle and Traffic Law, or reasonably suspects that the occupants had been, were then, or were about to be engaged in criminal conduct.

In this case, the Officer testified that she observed defendants entering a bank, in a high crime area, with clothing that was suspicious given the weather conditions. Specifically, the defendants were wearing heavy hooded sweat shirts on a warm day when Officer was wearing a T-shirt. The Officer observed defendants put up their hoods before entering the bank and then she observed them race out of the bank and into a moving Toyota Camry.

The Officer testified that she believed that a bank robbery had occurred. This Court finds that the observations of the Officer correctly supported her belief. It is clear that a Police Officer may not stop a vehicle merely based on a hunch.

The Officer testified that as soon as the defendants were removed from the Toyota Camry, they were handcuffed and placed under arrest. She testified that at the same time, she received a radio call that there had been a bank robbery at the Queens County Savings Bank. The Officer testified that various sums of currency were recovered from each of the defendants. In addition, the Officer stated that she observed the contents of defendant's wallet as it was handed to her because the wallet could not close as it was stuffed with money.

Since this Court finds that there was probable cause to arrest the defendants upon them exiting the car, the search of the defendants was legally permissible as a search incident to a lawful arrest.. Defendants' motions to suppress the items recovered pursuant to a search of each of the defendants are hereby denied.

To Be Cont...

The People argue that the Police had a basis to stop the Escalade...cont

October 21, 2014,


The People argue that the Police had a basis to stop the Escalade which fled from the Police. The People also argue that there was probable cause to arrest and search each of the defendants. The People further argue that the statements made by the defendants were voluntarily given.

The Officer testified that he received a radio assignment regarding the robbery at the Jewelers store in Manhasset. The radio assignment indicated that the suspects were male blacks who fled the scene in a black Cadillac Escalade. He then observed a black Cadillac Escalade, traveling westbound on Northern Boulevard, with two (2) male black occupants. Criminal Defense counsel's argument that his observations did not provide him with a reasonable basis to stop the black Cadillac Escalade is simply absurd. It is clear that the Officer observed a vehicle fitting the exact description of the alleged getaway vehicle in the immediate vicinity of the robbery. Whether he observed, at that point, two (2) criminal suspects or multiple suspects is of no moment.

Upon, Officer attempting to pull the black Cadillac Escalade over, the vehicle fled and a high speed chase ensued. Thereafter, he observed the vehicle committing various Vehicle and Traffic Law violations, including traveling at speeds of up to one hundred (100) miles per mile, driving on the wrong side of the street, and crashing into a marked Police car. Further, he witnessed four (4) to five (5) male black individuals leap out of a moving vehicle, run across busy traffic lanes of the Long Island Expressway, jump over a concrete center barrier, and race from the Long Island Expressway.

Since this Court finds that there was probable cause to arrest each of the defendants, the search of each defendant, at the scene of their arrest, was legally permissible as a search incident to a lawful arrest.

During a search of defendant, a watch was recovered. Defendant's argument that Officer's removal of his pants amounted to a public strip search is factually inaccurate. Officer testified that defendant was wearing two (2) pairs of pants and it was necessary to remove the first pair to gain access to the hard object which Officer detected in his cuff. Therefore, the removal of the first pair of pants did not render defendant “naked” by any stretch of the imagination.
Regarding the oral statement allegedly made by defendant to Officer, it is clear that the defendant was in Police custody at the time he made the oral statement, since he had been arrested at the golf course. Although he had not been read his “ Miranda Warnings ” prior to making said statement, this Court finds that the defendant was neither being questioned nor interrogated by Officer Alter at the time he made the statement. Therefore, “ Miranda Warnings ” were not required. This Court further finds that said statement was spontaneously and voluntarily made by defendant to Police Officer. Therefore, defendant's motion to suppress the oral statement made to Officer is hereby denied.

Regarding the oral and written statements allegedly made by defendant to Detective, the People elicited testimony from Detective that he introduced himself and asked defendant if he wanted to give a statement. Defendant responded “yes.” Detective testified that he read to defendant his “ Miranda Warnings ” using a Miranda card, which was admitted into evidence as People's Exhibit 1. Detective asked defendant if he understood his rights and was willing to answer questions.

Defendant indicated that he understood his rights, signed and initialed the Miranda card, and agreed to answer questions. Defendant made various oral statements to Detective. The latter reduced defendant's oral statements to written statements. Defendant read the written statements and signed the written statements. Defendant made written changes to his second written statement and read the statement out loud. It is clear that defendant was in custody at the time he made the oral and written statements to Detective.

The Court holds that defendant was properly advised of his “ Miranda Warnings ” by Detective, and that he knowingly, intelligently and voluntarily waived his right to remain silent, and agreed to answer the questions of Detective. This Court further finds that defendant voluntarily provided the written statements. This Court concludes that the oral and written statements made by defendant to Detective were voluntarily made without any threats, physical force or coercion. Consequently, defendant's motion to suppress the oral and written statements made to Detective is hereby denied.

Nassau County Police Department...cont

October 20, 2014,

It must be emphasized, once again, that a Grand Jury proceeding is not a mini-trial and that the District Attorney is not required to present to the Grand Jury all evidence in its possession. If an evidentiary basis can be established, the trial would be the proper forum for the introduction and exploration of the numerous reports cited by the criminal defense.

The defendant makes the additional argument that the evidence before the Grand Jury was not legally sufficient to establish the offenses charged and therefore the indictment must be dismissed. After a careful inspection of the Grand Jury minutes, the court must disagree with the defendant's argument.

The criminal defendant next argues that the indictment must be dismissed pursuant to CPL §§ 210.20(1)(a) and 210.25(1) because it is defective in that it does not substantially conform to the requirements of CPL § 200.50. CPL § 200.50(7)(a) provides that an indictment must contain a plain and concise factual statement in each count which, without allegations of an evidentiary nature, asserts facts supporting every element of the offense charged and the defendant's or defendants' commission thereof with sufficient precision to clearly apprise the defendant or defendants of the conduct which is the subject of the accusation. It has been held that an indictment must provide the accused with fair notice of the nature of the charges against him, and of the manner, time and place of the conduct underlying the accusations, so as to enable him to answer the charges against him and to prepare an adequate defense. Usually, it is sufficient to charge the language of the statute.

The language of the instant indictment, viewed according to these standards sufficiently conforms to the legal requirements. The defendant's motion based upon this ground, must therefore be denied.

The only point raised by the defendant regarding a dismissal of the indictment on this basis, concerns the chilling effect the prosecution of the defendant would have on others who might apply for benefits in the future. Although the defendant does not engage in an analysis of the factors enumerated in CPL § 210.40, the court after having done so, must deny the motion.

Based upon the foregoing, the defendant's motion to dismiss the instant indictment is denied.

The trial was adjourned until October 24, 2011

October 20, 2014,

In February 7, 2011, a one hundred seven (107) count indictment was filed with the Nassau County Court Clerk charging fourteen (14) defendants, each with a count of Enterprise Corruption, Conspiracy in the Fourth Degree and Scheme to Defraud in the First Degree. Each criminal defendant was charged with additional differing counts, including Money Laundering in various degrees, Falsifying Business Records in various degrees, Identity Theft in the First Degree and Grand Larceny in various degrees.

A Nassau County Criminal Lawyer said that all defendants were arraigned and on April 6, 2011, specific dates were scheduled by the Court regarding time limitations for plea negotiation and discovery. On that date, in light of the large number of defendants, attorneys, witnesses, and the complexity of the case, a firm date of October 17, 2011 was set for the commencement of trial.

The Court inspected the twelve hundred (1,200+) plus pages of grand jury minutes and issued orders on omnibus motions. Various discovery issues were resolved.

Several defendants entered pleas of guilty and were either sentenced or are currently awaiting sentence. On October 17, 2011, four of the defendants had not arrived at a disposition and were about to proceed to trial. Preliminary logistic matters were settled and a jury panel was ordered for October 20, 2011 in anticipation of the commencement of jury selection relative to the trial of the 4 remaining defendants.

Prior to the jury panel entering the courtroom, the People disclosed that they had just discovered that the District Attorney, when filing the indictment, failed to file a special information relative to the enterprise corruption charge and consisting of a statement to the Court attesting that she had reviewed the substance of the evidence presented to the grand jury and concurred in the judgement that the charge is consistent with legislative findings in article four hundred sixty of the Penal Law.

Later that same day, a special information pursuant to CPL § 200.65 was filed with the Clerk of the Nassau County Court. The information was executed by the District Attorney of Nassau County. The District Attorney's attestation, dated October 20, 2011.

To Be Cont...

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he 4th Amendment to the United States Constitution

October 19, 2014,

Defendant is charged with two counts of violating Penal Law § 160.10(1), Robbery in the Second Degree as a class C felony; one count of violating Penal Law § 160.05, Robbery in the Third Degree as a class D felony; and three counts of violating Penal Law § 155.30(1), Grand larceny in the Fourth Degree as a class E felony. Codefendant Dwight Washington is charged with two counts of violating Penal Law § 160.10(1), Robbery in the Second Degree as a class C felony; one count of violating Penal Law § 160.05, Robbery in the Third Degree as a class D felony; two counts of violating Penal Law § 155.30(1), Grand larceny in the Fourth Degree as a class E felony; and one count of violating Penal Law § 155.25, Petit Larceny as a class A misdemeanor.

A Nassau County Criminal lawyer said that on January 13, 17, 18, 19, and 23, 2012, upon stipulation by the attorneys, this Court conducted a Huntley, Mapp, and Wade hearing.. The Huntley hearing pertained to various oral and written statements allegedly made by defendants. The Mapp hearing pertained to money allegedly seized from defendants, and various other items allegedly seized from the car owned.

The People called four (4) witnesses at the hearing. The Court finds the testimony of these witnesses to be credible.

Defense counsels argue that there was no reason or basis for the stop of the Toyota Camry in which the defendants were traveling. Defense counsels point out that at the time of the car stop, the Police had no information that a bank robbery had occurred and there was no Vehicle and Traffic Law basis to stop the vehicle. Criminal Defense counsels contend that all the Police had observed prior to the car stop were two individuals in heavy clothes running out of a bank. Further, defense counsels assert that the testimony adduced at the hearing failed to establish a basis for the defendants to be removed from the car and searched. Defense counsels conclude that everything occurring after the defendants were removed from the car should be suppressed.

The People respond that the Officer had a basis to stop the Toyota Camry based on the defendants' suspicious actions; i.e., wearing inappropriate clothing for the season, pulling up hoods over their heads before entering a bank, and running out of the bank a minute later. The People argue that the defendants were properly removed from the Toyota Camry based on the excessive amount of money in the car. The People further argue that the search of the defendants, the duffel bag, and the car, including the trunk, were all proper since they occurred incident to a lawful arrest.

To Be Cont...

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The People argue that the Police had a basis to stop the Escalade

October 19, 2014,

Defendant and co-defendants were charged with three counts of violating Penal Law § 160.15(4), Robbery in the First Degree as a class B felony; three counts of violating Penal Law § 160.15(2), Robbery in the First Degree as a class B felony; three counts of violating Penal Law § 160.10(1), Robbery in the Second Degree as a class C felony; one count of violating Penal Law § 265.03(1)(b), Criminal Possession of a Weapon in the Second Degree as a class C felony; one count of violating Penal Law § 265.03(3), Criminal Possession of a Weapon in the Second Degree as a class C felony; one count of violating Penal Law § 155.40(1), Grand larceny in the Second Degree as a class C felony; one count of violating Penal Law § 145.10, Criminal Mischief in the Second Degree as a class D felony and one count of violating Penal Law § 140.35, Possession of Burglar's Tool as a class A misdemeanor.

A Nassau County Criminal lawyer said that on March 1, 5, 6, 8, and 12, 2012, after motion practice by the attorneys, this Court conducted a Huntley, Mapp, and Dunaway hearing. The Huntley hearing pertained to various oral and written statements allegedly made by defendants. The Mapp hearing pertained to items allegedly seized from 2 defendants. The Dunaway hearing pertained to probable cause for the arrest of the 2 defendants.

This Court finds the testimony of 4 Police Officers, and 4 Detectives. An Officer testified that on October 14, 2011, he was working a 7 am to 7 pm tour of duty for the Nassau County Police Department. He was in uniform, working alone, in a marked Nassau County Police vehicle. At approximately 1:52 pm, he was on Northern Boulevard in Manhasset, Nassau County, taking an accident report. While taking the accident report, he received a radio assignment for a robbery at the a jewelry store in Manhasset. The radio assignment indicated that the suspects were male blacks, that they were armed with multiple handguns, and that they fled in a black Cadillac Escalade (hereinafter referred to as the “Escalade”).He pursued the Escalade onto the Long Island Expressway Service Road and then onto the Long Island Expressway. As the traffic on the Long Island Expressway slowed down, he observed four (4) to five (5) male black individuals jump out of the Escalade while it was still moving, run across the traffic lanes of the Long Island Expressway, jump over the center barrier, and exit the Long Island Expressway.

Defense counsels argue that there was no reason or basis for the stop of the Escalade in which the defendants were traveling. Defense counsel for defendant points out that the description of the alleged fleeing suspects was “multiple male blacks in an Escalade.” He argues that since Officer testified that he only observed two male blacks in an Escalade, the description did not match. Defense counsels also argue that there was no reason or basis to arrest each defendant since, at the time of their arrests, they were not doing anything wrong. Defense counsels argue that none of the statements allegedly given by their clients were voluntary since their clients were either injured, wet, tired or hungry.

In addition, defense counsel for defendant argues that the People elicited testimony regarding two statements allegedly made by Reggie Fowler for which the People failed to give any prior notice. Defense counsel moves to suppress those statements.

To Be Cont....

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1977 robbery of the Ridgewood Savings Bank...cont

October 18, 2014,


The test for duplicity of a count of an indictment has been stated to be whether the defendant could be convicted of either one of the crimes charged therein if the District Attorney elects to waive the other. In discussing the problems presented by a duplicitous indictment, stated the following: "One vice of duplicity is that a general verdict for a criminal defendant on that count does not reveal whether the jury found him not guilty of one crime or not guilty of both.

Conceivably this could prejudice the defendant in protecting himself against double jeopardy. Another vice of duplicity is that a general verdict of guilty does not disclose whether the jury found the defendant guilty of one crime or of both. Conceivably, this could prejudice the defendant in sentencing and in obtaining appellate review. A third vice of duplicity is that it may prejudice the criminal defendant with respect to evidentiary rulings during the trial, since evidence admissible on one offense might be inadmissible on the other."

In applying these principles here, the lack of duplicity becomes apparent beyond peradventure since it is clear that the defendant could be convicted under count two only if the prosecutor proves that the defendant robbed the bank by robbing the three tellers. This is not a situation where the language of a count of an indictment is drawn so ambiguously as to relate to separate criminal indictments. There is only one crime which the defendant was charged with, namely, bank robbery via the three tellers. Of course, it is self-evident that if the essence of the crime was not robbery of the bank but of three individuals, grouping them into one count would create a duplicitous indictment. However, as previously indicated, such is not the case here.

Finally, it need be said that even if the indictment was duplicitous, the judgment of conviction should, nevertheless, be affirmed. The defendant did not raise any objection of duplicity during the trial. While a jurisdictional defect may be raised for the first time on appeal, the defect alleged here is not jurisdictional. For example, an indictment will be jurisdictionally defective if the acts it accuses defendant of performing simply do not constitute a crime, or if it fails to allege that a defendant committed acts constituting every material element of the crime charged."

The indictment here effectively charged the defendant with the commission of a crime and defendant's failure to raise the issue in the County Court constituted a waiver of any objection based on CPL 200.30. Accordingly, since the other contentions raised by defendant on appeal lack merit, the judgment should be affirmed.

Accordingly, the court held that the judgment of the County Court, Nassau County, rendered May 5, 1978, is hereby affirmed.

Vehicle and Traffic Law § 1192 (8)...cont

October 18, 2014,

When this provision was renumbered from subdivision seven to Vehicle and Traffic Law § 1192 (6) in 1988, the statutory language remained largely the same. However, the bulk of the enabling language was incorporated into the body of the statute — providing that the subdivision would only be applicable to convictions occurring after 29 November 1985 (L 1988, ch 47, § 18). The primary difference in the statutory language was the omission of the term "out-of-state."

The subdivision was again renumbered to Vehicle and Traffic Law § 1192 (8) (L 1990, ch 173, § 62), where it appears today.

As noted above, the 2006 amendments ended the practice of treating all prior out-of-state criminal convictions as mere traffic infractions under New York law. Rather, for purposes of determining penalties, a prior out-of-state conviction is now treated as a conviction of the equivalent conduct under New York law. In addition, the amendment again moved the date restrictions, this time from the statute to the enabling language.

This history reflects that the Legislature recognized the harsher penalties that had been applied when a person had a prior in-state conviction, as opposed to a prior out-of-state conviction, and intended to remedy that discrepancy. This bill would eliminate one of the loopholes that allows repeat DWI offenders to face lesser penalties simply because prior convictions occurred out of state. The stated purpose of the amendment was to ensure that a prior out-of-state conviction for operating a motor vehicle while under the influence of alcohol or drugs shall be deemed to be a prior conviction for the same action as if it had occurred in New York State".

Although the legislative history does not specifically discuss a time limitation, it is significant that the Legislature chose to continue applying the 29 November 1985 date originally used to allow for consideration of out-of-state convictions. The most sensible interpretation of the enabling language is that the Legislature chose to remedy this differential treatment going forward, by continuing to apply the previous statutory scheme to out-of-state convictions occurring prior to 1 November 2006, and applying the statute as amended to out-of-state convictions occurring after that date.

The People's argument that "convictions" in the enabling language refers to current New York convictions is belied by the use of that 29 November 1985 to 31 October 2006 time frame. In addition, if "convictions occurring on or after 1 November 2006," was meant to refer to current New York convictions, the enabling language establishing the effective date of the statute as 1 November 2006 would be redundant. Treating "convictions" as prior out-of-state convictions also avoids any potential ex post facto problem arising from the People's proposed interpretation of the statute.

The court notes that enabling language of the 2006 amendments should be interpreted consistently with the language of the statute itself. The subdivision is entitled "Effect of prior out-of-state conviction" and throughout the subdivision the only references are to prior convictions — when a prior out-of-state conviction will be deemed a prior conviction under New York law.

Moreover, use of the prior out-of-state convictions is necessary at the inception of the case, for charging purposes, in order to make the initial determination of whether a defendant can be indicted for misdemeanor or felony DWI.

Based upon all of the above considerations, the most reasonable interpretation of the statute and its enabling language is that out-of-state convictions from prior to 1 November 2006 cannot be used to elevate a DWI offense to a felony.

The court finds that it is not necessary to address defendant's argument concerning whether the conduct underlying his Georgia conviction would have been the equivalent of a misdemeanor under Vehicle and Traffic Law § 1192. In addition, defendant's cross appeal is dismissed, since he was not adversely affected by the Appellate Division order within the meaning of CPL 450.90 (1).

Accordingly, on the People's appeal, the order of the Appellate Division should be affirmed. Defendant's appeal should be dismissed upon the ground that the order from which the appeal is taken is not adverse or partially adverse within the meaning of CPL 450.90 (1) as in People v Edwards.

On the People's appeal, order affirmed. Defendant's appeal dismissed upon the ground that the order from which the appeal is taken is not adverse or partially adverse within the meaning of CPL 450.90(1) as in People v Edwards.

1977 robbery of the Ridgewood Savings Bank...cont

October 17, 2014,

After examining count two of the indictment in light of the traditional purposes to be served by an indictment, it becomes clear beyond cavil that those purposes are completely satisfied. Count two of the indictment unmistakably indicates that defendant is being charged for the July 22, 1977 robbery of the Ridgewood Savings Bank which he accomplished by forcibly stealing property from the employees of the bank.

The issue, therefore, resolves itself into whether merely as a matter of form the indictment is defective under the provisions of CPL 200.30. Before addressing that issue I note that, "The historical development of the form of indictment presently used in New York exemplifies a continuing attempt to eschew formalism and ritual". It is apparent that count two of the indictment charged only one offense (see CPL 200.30, subd. 1). While there is no bank robbery statute per se in New York, the indictment cannot be interpreted to mean anything other than that the charge against defendant is robbery in the first degree of the Ridgewood Savings Bank committed by taking money from three employees of the bank. The indictment cannot be construed as charging three separate offenses by virtue of the fact that the three tellers are named therein. The tellers, after all, were employees of the bank and were holding the bank's money rather than their own. "A count of an indictment is not duplicitous if the alleged acts therein were part of a transaction constituting a single continuing offense".

The dissent, in seeking to define "offense" for purposes of subdivision 1 of CPL 200.30, mistakenly points to the definition of that term as it appears in subdivision 1 of CPL 40.10. Said section provides as follows: "The following definitions are applicable to this article: "1. 'Offense.' 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. The same conduct or criminal transaction also establishes separate and distinct offenses when, though violating only one statutory provision, it results in death, injury, loss or other consequences to two or more victims, and such result is an element of the offense as defined. In such case, as many offenses are committed as there are victims."

It is true that if the definition of "offense" contained in section 40.10 is applied to CPL 200.30 and the larceny is deemed to have been of the three tellers, the second count of the indictment would be invalid as duplicitous. However, the very wording of section 40.10 precludes its application to section 200.30 since section 40.10 explicitly states, "The following definitions are applicable to this article ", which is an article of the CPL addressed to double jeopardy. The dissent fails to cite any authority for the proposition that CPL 40.10 and CPL 200.30 are to be read in conjunction.

Furthermore, an examination of CPL 200.30 in its entirety indicates that what it seeks to preclude is not that which is presented here. Subdivision 2 of section 200.30 commences by stating, "For purposes of this section". Subdivision 2 thereby shows that its purpose is to explain and clarify what is meant by subdivision 1 of section 200.30. Subdivision 2 then goes on to indicate that where factual allegations of a count of an indictment would support a conviction under more than one subdivision of a statutory provision defining an offense, the count must specify the particular subdivision violated. Accordingly, section 200.30 makes apparent what type of indictment is to be avoided. Such an indictment is clearly not present here since the second count did not allege facts which would support a conviction under more than one subdivision of the first degree robbery statute (Penal Law, § 160.15) but only under subdivision 4 of section 160.15 of the Penal Law.

To Be Cont...

Nassau County Police Form 38 ...cont

October 17, 2014,

A conviction of the crime of larceny by false promise cannot rest on mere probabilities; indeed, the standard of proof the People must satisfy is more burdensome than that of most crimes. Because the failure to perform a promise may ordinarily be redressed in the civil forum, the statute set forth " a high standard of proof for establishment of the defendant's intent".
Accordingly, the mere fact that the criminal defendant's promise was not performed, standing alone, is insufficient to sustain a conviction of larceny by false promise. A finding that the defendant obtained property by means of a promise to perform in the future when he had no intention of doing so at the time the promise was made "may be based only upon evidence establishing that the facts and circumstances of the case are wholly consistent with guilty intent or belief and wholly inconsistent with innocent intent or belief, and excluding to a moral certainty every hypothesis except that of the defendant's intention or belief that the promise would not be performed".

Only rarely is there any direct proof as to the intent of a criminal defendant at the time the promise was made. Of necessity, criminal intent must be inferred from the actions of a defendant after the promise was made, the nature of the promise and relevant circumstances surrounding it, and the actions of the defendant after his failure to perform.

In making this inquiry, however, great care must be exercised by the trier of fact so as to ensure that mere suspicion is not elevated into a finding of larcenous intent. Instead, a finding of larcenous intent may be made only where that determination flows naturally and reasonably from the facts in evidence and must exclude to a moral certainty any implication that the defendant has committed a mere civil wrong. Burglary was not involved.

That burden has been met here. The evidence discloses the existence of many circumstances beyond the mere failure of this defendant to perform his promise by his failure to pay his investors. The conclusion that defendant was engaged in a fraudulent Ponzi scheme is inescapable. Defendant represented to his associates, agents and investors that the funds placed with him would be invested in various enterprises whose business would be sufficient to generate an extraordinarily large profit within a brief period of time.

Indeed, the very size of the promised return on investment funds is indicative of larcenous intent. The investment program was not represented as a speculative venture. Instead, investors were guaranteed at the time they gave defendant their money that a large profit would be available to them in a matter of weeks. Typically, investors were promised a 30 to 40% Return in 12 weeks. To constitute a viable investment program, the profits from the funds invested by defendant must have been sufficient to return the profits guaranteed to investors, pay out 10% Of the principal sum invested to agents as well as cover the losses sustained by Associates and its subsidiaries.

To Be Cont...