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Defendant Found With Stolen Prescription Pad


The Facts of the Case:

On 9 October 1980, at approximately 11:30 A.M., the defendant was arrested on East 40th Street in Manhattan, in possession of a blank prescription pad bearing the name of a certain doctor, a hypodermic syringe, twelve tablets of Triavil, and one bottle of Procaine. Thereafter, a New York Criminal Lawyer said the arresting officer, a Police Officer of the 9th Precinct, telephoned the doctor concerned at his Bronx office, inquiring whether the doctor had been burglarized. The doctor informed the officer that he was not aware of any burglary at his Manhattan or Bronx office, but that the man arrested was not authorized to take, use, or possess the property. Thus, the officer charged the defendant with Criminal Possession of a Controlled Substance in the Seventh Degree, Criminally Possessing a Hypodermic Needle, and Criminal Possession of Stolen Property in the Third Degree. Defendant was given a Desk Appearance Ticket, returnable on 24 October 1980. A misdemeanor complaint containing these charges was filed with the court.

On the same day, at about 3:00 P.M., when the aforesaid doctor arrived at his Manhattan office, he discovered that it had indeed been burglarized. The doctor reported the incident and officers from the 17th Precinct Burglary Unit responded. On this call, one of the Police Officers lifted a latent fingerprint from a cigarette package apparently left by the burglar. The doctor informed the Burglary Unit officers of the earlier telephone call he had received at his Bronx office, but was unable to recall the name, shield or command of the earlier caller. All attempts of the 17th Precinct Burglary Unit to ascertain the identification of that first caller proved unsuccessful.

On 20 October 1980, the officer who lifted the fingerprint was informed by the Latent Fingerprint Unit that it was of sufficient value for comparison purposes. However, at that point in time, the officer had no suspects and no known prints with which to compare the lifted print.

On 24 October 1980, defendant did not appear in court on his Desk Appearance Ticket. Thus, an arrest warrant was issued.

A Brooklyn Criminal Lawyer said on 8 November 1980, defendant was arrested in Brooklyn for an unrelated burglary. However, he escaped from the custody of the 94th Precinct the same day. Ten days thereafter or on 18 October 1980, defendant was again arrested by officers from Conrail for trespassing on a private property at the Grand Central Terminal. During his arrest, defendant admitted that he was previously arrested in Brooklyn for burglary and had escaped, and the officers discovered various doctor’s prescription forms, some containing the name of the aforementioned doctor, in defendant’s possession. The Conrail police immediately notified the 94th Precinct, and a Brooklyn detective arrived and took custody of defendant. The defendant was taken back to Brooklyn and was booked on charges arising out of the incidents of 8 November 1980. On the same day, the Conrail officers contacted the doctor, and learned of the pending 17th Precinct Burglary Unit investigation. They then notified the 17th Precinct, and informed the Burglary Unit of the Conrail officers’ discovery of the doctor’s blank prescription pads in defendant’s possession. Based upon this new information, the officer of the Burglary Unit immediately ordered a comparison of defendant’s fingerprints with the one which he lifted from the doctor’s Manhattan office. Meanwhile, also on 18 November 1980, the Conrail police were informed that defendant rented a locker in the Grand Central Terminal which purportedly contained the proceeds of several burglaries. On 19 November 1980, both Conrail police and officers from the 17th Precinct Burglary Unit witnessed the opening of that locker. Its contents included identification papers of defendant, burglar’s tools, and prescription forms bearing the names of several doctors, including the aforementioned doctor.

On 20 November 1980, defendant was produced in a New York Criminal Court, for arraignment on the misdemeanor complaint on which the defendant had failed to appear on 24 October 1980. Thereafter, the defendant pled guilty to Criminal Possession of a Controlled Substance in the Seventh Degree covering the entire misdemeanor complaint and was sentenced to thirty days imprisonment.

On 1 December 1980, the officer of the 17th Precinct Burglary Unit received the results of the fingerprint comparison test. The report confirmed that the print lifted belonged to defendant. Based upon this evidence, the officer obtained an arrest warrant on 4 December 1980, charging defendant with Burglary in the Third Degree. On 5 December 1980, defendant was arraigned on the warrant. A four count indictment was filed in the New York State Supreme Court on 11 December 1980, charging the defendant with Burglary in the Third Degree; Grand Larceny in the Second Degree, involving property, including personal property and cash, valued in excess of $1,500.00 stolen from the doctor’s office; and two counts of Criminal Possession of Stolen Property in the Third Degree, the first is possession on 18 November 1980, of prescription forms stolen from the doctor’s office, the second is possession on 18 November 1980, of prescription forms stolen from another doctor, on 12 or 13 November 1980.

Consequently, a New York Sex Crimes Lawyer said the defendant filed a motion to dismiss the indictment on the ground that prosecution thereunder, violates his protection against double jeopardy guaranteed by the 5th Amendment of the United States Constitution, by the New York State Constitution, by C.P.L; and is also violative of the Criminal Procedure Law.

The Issue of the Case:

The issue before the court is whether or not an earlier plea of guilty on a misdemeanor complaint charging the defendant with criminal possession of stolen property and related crimes bars prosecution on a subsequent indictment charging the defendant with burglary, grand larceny and two counts of criminal possession of stolen property, when the offenses charged in the misdemeanor complaint and the indictment are based upon the same criminal transaction.

The Ruling of the Court:

As a rule, there is no constitutional or statutory bar to prosecuting a burglary where the defendant has previously pled guilty to possession of some of the fruits of the burglary, provided that the prosecution, exercising due diligence did not have sufficient evidence to pursue the burglary. The elements of the crimes are different and the crimes are designed to prohibit distinct and different evils. Both under the Constitution and New York Statutes, if a person is convicted of possession of stolen property, he cannot be thereafter tried for possession of additional stolen property from the original theft, provided, that the second crime is of the same degree as the first crime. If the new charge, whether larceny or possession of stolen property is of a higher degree than the original charge to which the defendant pleaded guilty and the prosecution with due diligence could not have proceeded initially on the more serious charge, there is no constitutional jeopardy claims which would bar defendant’s trial on the new charge. Nevertheless, under the Same Transaction Test, a trial for grand larceny is prohibited after a plea of guilty to criminal possession of stolen property in the third degree involving some of the stolen property since the two crimes have now been merged for jeopardy purposes.

In other words, under New York law, if a person steals one million dollars in hundred dollar bills and is subsequently apprehended with one of the bills and prosecuted for the misdemeanor of criminal possession of stolen property in the third degree, he could not be prosecuted again for the $999,900.00 balance of the theft. For this reason, only the burglary count is sustained, and the grand larceny and possession of stolen property counts related to the burglary are dismissed. This is an unfortunate result. The federal rule permitting prosecution of the greater charge, which could not have been pursued originally for lack of evidence, seems more just and appropriate. However, the court must adhere to the laws of the state and interpret it accordingly.

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