According to sources, in this first instant case, the accused’s present conviction is based upon an investment scheme which grossed approximately four million dollars in the instant County. He has been convicted on similar charges in another County and that conviction has been upheld by this court. The central argument set forth on this appeal is that the County prosecution is barred by the prior County conviction pursuant to the double jeopardy provisions of the CPL in that the accused’s investment scheme, which extended from the other County to other areas, constituted a single criminal transaction. Generally, multiple larcenies are considered as a single offense or transaction only where the property is taken from the same owner and place by a series of acts which are pursuant to a single intent and in execution of a common fraudulent scheme.
The Judgment against him was modified, on the criminal law, by reducing the conviction under count 18 of the indictment from grand larceny in the second degree to grand larceny in the third degree and by reducing the maximum term of the sentence imposed thereon from seven years to four years, to be served concurrently with the sentences imposed on the other convictions of grand larceny in the third degree.
As to his contentions that the People failed to establish he committed the crimes of larceny as charged, and that the sentence imposed was illegal and excessive. Finally, we consider his criminal allegation that pretrial publicity and the sentencing in the prior County denied him a fair trial in the present County. In view of his waiver of a jury trial and his election to proceed in the present County rather than to request a change of venue, his argument is without merit.
In this second case, the Grand Jury received evidence from three witnesses, it handed up a first Indictment, charging the accused with the crimes of Burglary in the Second Degree, Grand Larceny in the Second Degree, and Assault in the Second Degree. Two of these witnesses later gave identical evidence to the Grand Jury, which returned a second Indictment, charging the accused with the crime of Robbery in the First Degree. The accused, by motion, urges the Court to dismiss the later indictment as a nullity, by reason of the District Attorney’s failure to obtain permission of the Court to re-present the case to a second Grand Jury.
The criminal court ruled that, common law gave the prosecutor a wide latitude in resubmitting charges to a Grand Jury. His discretion in this regard has been curbed only in certain specified situations. Our concern here focuses on the rule that, when a Grand Jury dismisses a charge, the prosecutor may not re-present it for reconsideration by the same or another Grand Jury without permission of the Court.
There are sound reasons for this rule. The dismissal of a charge by the Grand Jurors after a full hearing establishes as fact that the evidence presented to them is not of sufficient importance or credible worth to warrant a prosecution and should not, therefore, be presented to the petit jury. The spirit of the Grand Jury procedure would be violated and nullified if the District Attorney, because he disagreed with the factual finding of one Grand Jury, resubmitted the same charge until he could find a Grand Jury that agreed with his opinion that a prosecution was warranted. Chaos would result if one Grand Jury could overrule the factual findings of another, and personal liberty would be endangered.
The District Attorney explained the law only as it related to the crimes that he charged. This first Grand Jury then indicted the accused for each and every crime explained to them. The District Attorney explained the criminal law as it related to robbery, and this second Grand Jury indicted the accused for that crime. Under these facts and circumstances, does the law deem that the robbery charge was dismissed by the first Grand Jury? This Court thinks not. The record clearly indicates that the jurors never considered such a charge, and they, therefore, cannot be deemed to have made a factual determination that the evidence was insufficient to present it to the petit jury.
The Court is constrained to note that it has painstakingly examined the minutes of both Grand Jury proceedings and has not found any suggestion of prosecutorial gymnastics, unfair dealing or practices, or subterfuge of any kind, and is fully convinced that good faith was exercised by the District Attorney to the extent that there was no attempt whatsoever to frustrate the purpose of the Grand Jury. The second indictment does not charge ‘the accused with an offense charged in the first indictment’ and is, therefore, not a superseding indictment. The Court notes that no party has moved for consolidation under C.P.L. section 200.20(2), and that the Court is powerless to order same without application by either side. The instant motion is denied in all respects.
Cases such as the above discussed or those involving crimes of petit larceny, wire fraud, murder and the likes are tried before the courts, hence there is a need for legal assistance under such instances. Stephen Bilkis & Associates, with offices throughout New York, offers the services of its Nassau County Robbery Lawyers or its New York Criminal Attorneys who are capable to represent you fully in all faces of trial.