Posted On: February 28, 2013 by Stephen Bilkis

Defendant Questions Court Jurisdiction

The Facts of the Case:

Defendants stole people's identities, committed bank fraud when opened fraudulent bank accounts in the victims' names, and transferred money from the victims' legitimate bank accounts to the fraudulent ones they controlled from an extensive enterprise which they oversaw. Thus, a New York Criminal Lawyer said they were indicted, among other things, eight incidents of grand larceny in the second and third degrees, based upon the transfer of funds from five separate legitimate bank accounts into five separate fraudulent accounts, after which the stolen funds were withdrawn; three instances of grand larceny in the second degree, based upon the deposit of stolen checks issued to an advertising firm into a fraudulent account defendants had opened in the firm's name in order to steal the funds. Count one of the indictment charged defendants with grand larceny in the first degree which requires that the stolen property's value exceed $1 million. Thereafter, on 2 November 2006, the Supreme Court of New York County rendered judgment convicting each defendant, after a jury trial, of grand larceny in the first degree, grand larceny in the second degree (four counts), grand larceny in the third degree (seven counts), forgery in the second degree (seven counts), criminal possession of a forged instrument in the second degree (eight counts), identity theft in the first degree (six counts) and scheme to defraud in the first degree, and sentencing defendant-one to an aggregate term of 10 to 25 years and sentencing defendant-two to an aggregate term of 12½ to 25 years.

Defendants questioned the court’s decision and claim that their convictions for first degree grand larceny should be vacated because the prosecution achieved the statutory monetary threshold by improperly aggregating the amounts taken from five individuals on eight different occasions and one advertising firm on three different occasions. A New York Criminal Lawyer said the People oppose defendants’ contention and argue that the aggregation was proper because defendants' thefts were made pursuant to a single intent and one general fraudulent plan.

Defendants also raised the issue of jurisdiction and questioned the court’s fact-finding procedures.

The Ruling of the Court:

On the issue of the grand larceny first degree conviction, the Court of Appeals had the occasion to rule in one case that aggregation was permissible and that the People may prosecute for a single crime a defendant who, pursuant to a single intent and one general fraudulent plan, steals in the aggregate as a felon and not as a petty thief. Here, the court finds that the record does not support the People's theory. It must be noted that defendants stole money from the bank accounts of five individuals after creating fraudulent checking accounts in the victims' names and that they fraudulently opened a bank account in an advertising firm's name, and then deposited checks stolen from that firm and withdrew the funds. A New York Drug Possession Lawyer said the transactions that the prosecution sought to aggregate occurred in different boroughs over several months and in a variety of ways, including ATM withdrawals, clothing purchases, and a wire transfer of funds to a jewelry store. Clearly, as the thefts in issue did not occur at the same time and place, and were not otherwise shown to have been committed pursuant to a single intent and a common fraudulent scheme, the first count of the indictment charging defendants with grand larceny in the first degree must therefore be dismissed.

On the issue that the trial court lacked geographic jurisdiction on most of the counts charged, well settled is the rule that a defendant has the right at common law and under the State Constitution to be tried in the county where the crime was committed unless the Legislature has provided otherwise. Nonetheless, unlike territorial jurisdiction which goes to the very essence of the State's power to prosecute and which may never be waived, questions relating only to the proper place for the trial can be waived. Failure to request a jury charge on venue amounts to a waiver. While defendants argued in their motion to dismiss at the close of the People's case that the trial court lacked jurisdiction as to the fraudulent bank accounts opened in Brooklyn, they failed to request a jury charge on this issue. This is tantamount to a waiver of the issue. Thus, the court declines to review it in the interest of justice.

On the issue that the court's fact-finding procedures were inadequate to establish that defendant-two was malingering, this claim was not preserved. Thus, the court must also decline to review it in the interest of justice. A New York Sex Crimes Lawyer said as an alternative holding, the court rejects it on the merits on the ground that there exists on the record that said defendant waived or forfeited his right to be present during a portion of the trial.

On the remaining contentions of defendants, the court finds them to be without weight and does not merit a discussion.

In sum, the court finds no basis for reducing the sentences on the remaining convictions. The judgment is thus unanimously modified, on the law, to the extent of vacating the convictions of first degree grand larceny, and dismissing that count as to both defendants, and affirmed as to the other convictions.

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