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Defendant Contends Double Jeopardy

The Facts:

On 18 April 1975, in the County of Queens, a person was assaulted and robbed. Among the items taken were a 1970 Cadillac, a wallet and four blank checks. Thereafter, that person’s signature was forged on two of the checks which bore the date 18 April 1975 and which were presented for payment. On 3 May 1975, defendant was apprehended in the County of Nassau while operating the said stolen vehicle. A New York Criminal Lawyer said as a result, defendant was indicted in Queens County for Robbery in the First Degree and Assault in the Second Degree. Defendant was thereafter convicted on both charges. In Nassau County, defendant was charged with Criminal Possession of the Forged Checks (Second Degree, 2 counts) and Criminal Possession of the Cadillac (First Degree) together with certain traffic offenses not hereto relevant.

Consequently, defendant, by his attorney, applies to the Court for an Order dismissing the indictment which accuses him of Criminal Possession of a Forged Instrument in the Second Degree (2 counts) and dismissing the first count of indictment which accuses him of Criminal Possession of Stolen Property in the First Degree. A New York Criminal Lawyer said the defendant contends that the prosecution of these charges would constitute a second prosecution in violation of CPL 40.20 and Penal Law 165.60.

The Issue:

The question to be resolved by the court is whether or not the prosecution on the forged instrument charges and the stolen Cadillac in Nassau County would violate CPL 40.20.

The Ruling:

The law, CPL 40.20 (subd. 2), specifically provides that: a person may not be separately prosecuted for two offenses based upon the same act or criminal transaction unless 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 or each of the offenses, as defined, contains an element which is not an element of the other, and the statutory provisions defining such offenses are designed to prevent very different kinds of harm or evil.

On another note, CPL 40.10 (subd. 2) defines the term criminal transaction. It is the conduct which establishes at least one offense, and which is comprised of two or more or a group of acts either so closely related and connected in point of time or circumstance of commission as to constitute a single criminal incident, or so closely related in criminal purpose or objective as to constitute elements or integral parts of a single criminal venture.

Here, the theft of the checks and its possession after they were forged, although related in time, are not connected in circumstance. A New York Drug Possession Lawyer said the forgery and subsequent possession did not take place at the scene of the robbery and assault and there was no evidence that the motive for the robbery was to obtain blank checks. Therefore, the Court cannot say that the offenses are so closely related in criminal purpose or objective so as to constitute elements or integral parts of a single criminal venture.

Moreover, even if the robbery, assault and possession of forged instrument all constituted a single criminal transaction, CPL 40.20 would still not bar their separate prosecutions. The offenses have substantially different elements and the acts establishing one are distinguishable from those establishing the other. Each offense contains an element which is not an element of the other and the statutes defining the crimes are intended to prevent different kinds of harm.

On the other hand, one indictment poses a different problem. It accuses the defendant of possessing the same automobile which he was convicted of stealing in Queens. Under the law, specifically PL 165.60 (subd. 2) provides that a person may not be convicted of both larceny and criminal possession of stolen property with respect to the same property. Therefore, since defendant has been convicted of the larceny in Queens, he cannot again be convicted of the possession in Nassau.

In sum, defendant’s application to the extent of the indictment that charges the crime of Criminal Possession of Stolen Property in the First Degree is dismissed on the ground that there exists a legal impediment to conviction; the motion is denied in all other respects.

Inasmuch as an accused can be charged with the crimes he committed, he cannot be prosecuted twice for the same criminal act or transaction. A New York Sex Crimes Lawyer said an accused also have rights which must be accorded with great importance. For the best criminal defense attorneys, contact us at Stephen Bilkis & Associates. Our Queens County Criminal Lawyers, particularly our Queens County Arrest Lawyers, and the like, have been extensively trained and they have the skill and competence to provide you with the best legal representation. Drop us a line for a free consultation.

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