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The trial was adjourned until October 24, 2011

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.

The trial was adjourned until October 24, 2011 for the attorneys to make whatever applications deemed by them to be appropriate and further to make submissions in support thereof if they desired. Jury selection was adjourned so as to permit a full and complete airing of the issues attending the People’s revelation.

The criminal defendants had submitted the letter of the attorney for one of the defendants, dated October 24, 2011. A submission dated October 24, 2011, in the form of a motion to dismiss the Enterprise Corruption count, was provided by the attorney for another defendant. Attached thereto was the Abrams memorandum, as well as the decision in a case.

One of the assistants assigned to try the case, Assistant District Attorney submitted her affirmation dated October 24, 2011. Attached was the October 23, 2011 affirmation of the Executive Assistant District Attorney in charge of the Investigations Division of the Nassau County District Attorney’s Office from January, 2006 to September, 2011, and Chief of Staff to the District Attorney from December 2009 to September, 2011, an eight-page memorandum of law, a copy of the decision of Queens County Supreme Court Justice in a case.

On October 24, 2011, at this Court’s request, the People provided, for in camera review, copies of Penal Law § 460.60, letters sent by Nassau County District Attorney, including the consent of the “Affected District Attorneys” to the charge of Enterprise Corruption set forth in Indictment 225N–11.

The issue presented to this Criminal Court is what effect, if any, the People’s late filing of the CPL § 200.65 information has on the Enterprise Corruption count.

The Class B Felony, “Enterprise Corruption, Penal Law § 460.20, was enacted, “Organized Crime Control Act” (OCCA) in an effort to combat organized crime in the state of New York. The statute is largely grounded upon the federal “Racketeer Influenced and Corrupt Organizations” “(RICO)” act enacted in 1971, as are similar pieces of legislation existing in other states.

The application of OCCA is more limited than that of RICO. The law as enacted was codified with the legislative findings set out in Penal Law § 460.00, immediately preceding the definition section and the elements of the crimes of Enterprise Corruption. Although OCCA has its roots in the federal RICO statute “[t]he organized crime control act is a statute of comparable purpose but tempered by reasonable limitations on its applicability, and by due regard for the rights of innocent persons”.

The legislative findings continue: “Once the letter of the law is complied with, including the essential showing that there is a pattern of conduct which is criminal under existing statutes, the question whether to prosecute under those statutes or for the pattern itself is essentially one of fairness. The answer will depend on the particular situation and is best addressed by those institutions of government which have traditionally exercised that function: the grand jury, the public prosecutor, and an independent judiciary”.

In the furtherance of the tenor of the legislative findings and on the occasion of the enactment of the OCCA, CPL § 200.65 was passed into law as an implementing provision. The section reads, in pertinent part: “When filing an indictment which charges enterprise corruption in violation of article four hundred sixty of the penal law …, the District Attorney must submit a statement to the court attesting that he or she has reviewed the substance of the evidence presented to the grand jury and concurs in the judgement that the charge is consistent with legislative findings in article four hundred sixty”

The crime of Enterprise Corruption was clearly fashioned as part of a legislative effort to stem and punish the activities of organized crime. It was not designed to punish those defendants for “relatively minor or isolated acts of criminal which, while related to an enterprise can be adequately and more fairly prosecuted as separate offenses.” “The legislature inserted this provision, CPL § 200.65, to assure that the indictment has received personal review and concurrence in the charge by the chief prosecuting officer of the jurisdiction”.

It is clear that CPL § 200.65 is a mandate which imposes upon the District Attorney a non delegable duty to review the substance of the grand jury evidence to determine whether the investigation may appropriately be prosecuted as an enterprise corruption case in accord with the considerations set forth in the legislative findings.

In the instant case, the facts are not in dispute. A special information, pursuant to CPL § 200.65, was filed by the Nassau County District Attorney, not on the occasion of the filing of the indictment as required by the statute, but rather, on October 20, 2011, eight (8) months after the filing of the indictment.

Although the filing of the information was not contemporaneous with the filing of the indictment, evidence has been presented by the Office of the District Attorney from which it reasonably may be deduced that the District Attorney, at the time of the filing, had reviewed the substance of the evidence presented to the grand jury and made a determination that the charge of Enterprise Corruption was consistent with the legislative findings as set forth in Article 460 of the Penal Law.

In addition thereto, Assistant District Attorney describes in her affirmation several conversations had with Ms. Reiss regarding the progress of the investigation and presentation.

The then Executive Assistant District Attorney and Chief of Staff to the District Attorney, affirms that beginning in August, 2010 through December, 2010, she held meetings with Assistant District Attorney and certain bureau chiefs at which meetings progress of the investigation and presentation were discussed in detail and further that the subject matter of the meetings was provided to the District Attorney personally.

The Criminal Court has reviewed the People’s in camera submission consisting of copies of letters soliciting the consent of “Affected District Attorneys” pursuant to the requirements set forth in Penal Law § 460.60. The letters, each executed by the Nassau County District Attorney, and each dated December 9, 2010, described the allegations and the investigation in sufficient detail as to suggest a comprehensive familiarity with the case. Burglary was not charged.

Recourse to reported cases has not been productive in locating controlling authority. Analogies to parallel or similar statutes have likewise been non productive.

The People’s late filing, although a departure from the statutory scheme, is purely ministerial and does not render the indictment or the Enterprise Corruption count subject to dismissal.

Contemporaneous with the investigation and the grand jury presentation, the Nassau County District Attorney was privy to the details of the prosecution through meetings, a seventy two (72) page prosecution memorandum, as well as discussions with her chief of staff, bureau chiefs and the presenting assistants.

All the above occurred during the course of the investigation and the presentation, and is documented, in great detail, in the affirmations of both Assistant District Attorney and then Executive Assistant District Attorney.

Most significantly, the District Attorney’s familiarity with the facts of the investigation and her knowledge of the substance of the evidence presented to the grand jury, as well as her concurrence with presenting the Enterprise Corruption count are expressed in, and corroborated by, the substance of the CPL § 460.60 “Affected District Attorney” letters.

Accordingly, the Court finds that the late filing of the special information as required by CPL § 200.65, does not render the Enterprise Corruption count in the indictment dismissible.

Here in Stephen Bilkis and Associates, our Nassau County Criminal Lawyers will provide you an advice which will be beneficial in your case. We will make it a point that you will know everything about your case. For crimes involving robbery, you can also consult our Nassau County Robbery Attorneys.