New York Criminal Lawyer Blog

According to a Nassau County Grand Larceny Attorney, the defendant was originally charged with a felony violation of Grand Larceny in the Fourth Degree, which was subsequently reduced to the class A misdemeanor charge of petit larceny, upon the application of the People.

Subsequently, the People made an application to dismiss the misdemeanor charge in order to further the interests of justice. The People’s application was granted by the Court, and the accusatory instrument was dismissed. The People allege that the application for dismissal was made because of the People’s inability to contact the complainant. Now the People have made a motion for an order to restore the above-entitled action to the calendar to allow the People to reprosecute this case on the original felony charge of violating PL Sec. 155.30, Grand Larceny in the Fourth Degree.

A Nassau County Criminal Lawyer said the Criminal Procedure Law fails to bar renewed prosecution of a misdemeanor charge that has been dismissed in the interest of justice upon the People’s motion pursuant to CPL Sec. 170.30 subd. (1)(g). However, this does not appear to be a legislative oversight since the legislature did provide for a bar to renewed prosecutions in other situations. Section 210.20 of the CPL provides that reprosecution of an indictment is barred where the indictment has been dismissed due to immunity, double jeopardy, statute of limitations, and denial of speedy trial. However, Section 210.20 provides that where an indictment had been dismissed in the interest of justice, pursuant to 210.20 subd. (1)(i), the Court may, upon application of the People, authorize the People to submit the charge to the grand jury. Accordingly, a superior court has the statutory authority to grant reprosecution of a felony charge where the indictment had been previously dismissed in the interests of justice.

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Appeal by the defendant from a judgment of the County Court, Nassau County, rendered October 23, 1986, convicting him of robbery in the third degree and grand larceny in the third degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant’s omnibus motion which was to suppress identification testimony.

At trial, the manager of a Woolworth’s store in Hempstead testified that the criminal defendant, after waiting on a check-out line for several minutes, seized a sum of money from an open cash register and fled. The manager pursued him and, despite the defendant’s threats of violence during the pursuit, succeeded in capturing the defendant only moments after the crime. At an on-the-scene showup which occurred within 30 minutes of the offense, a cashier who witnessed the incident, identified the defendant as the perpetrator. The defendant, a parolee at the time of the offense, was immediately arrested. A parole revocation hearing was then scheduled. On the night before the defendant’s parole revocation hearing, the manager of the store, who was scheduled to testify against the defendant, was abducted by several individuals who handcuffed and blindfolded him and threatened to kill him if he testified. As a result, the defendant was charged in a separate indictment with, inter alia, kidnapping in the second degree in addition to the offenses of robbery in the third degree and grand larceny in the third degree charged in the initial indictment. The trial court thereafter granted the People’s motion to consolidate the indictments. The defendant subsequently was convicted of robbery in the third degree and grand larceny in the third degree and was acquitted of all other charges.

The defendant’s contention that the consolidation of the indictments constituted error is unavailing. CPL 200.20(2)(b) provides that separate offenses, even though based upon different criminal transactions, are joinable when they are of such nature that proof of one of the offenses would be material to and admissible as evidence in chief upon a trial on the other. These criteria were satisfied in the instant case, as proof that the defendant committed the robbery tended to establish a motive for the commission of the alleged kidnapping and therefore was both material and relevant to that charge. Additionally, the defendant’s claim that he suffered prejudice as a result of the joinder is belied by the fact that he was acquitted of all the charges arising from the alleged abduction of the store manager.

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The defendant appeals from an order which denied, without a hearing, his application to vacate a judgment of the same criminal court, rendered July 21, 1975, which convicted him of grand larceny in the third degree, upon his plea of guilty, and sentenced him to an indeterminate term of imprisonment not to exceed three years.

The trial court erred in denying, without a hearing, defendant’s motion to vacate the judgment. The appeal from the judgment, which was affirmed, concerned only matters in the record. The issue on this appeal concerns matters dehors the record. Consequently, it was error to hold that the instant issue on appeal was raised and already resolved against the criminal defendant on the appeal from the judgment.

The court, in denying the motion, further erred in basing its decision on People v. Davidson (35 N.Y.2d 227). The Davidson case is clearly distinguishable since it involved a patently incredible allegation which was flatly contradicted by the record. Furthermore, in Davidson, the Judge who allegedly made the off-the-record promise was deceased at the time of the second coramnobis application. In the instant appeal the record does not contradict the allegation of an off-the-record promise; nor can it be said that the allegation is incredible as a matter of law.

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Records reflect that in this first case, in a felony charge, the accused appeared to testify before the Grand Jury without an attorney. Despite the fact that he stated that he could not afford an attorney, he was not afforded the opportunity to apply for legal aid or court-appointed counsel. In the Grand Jury room, he stated that he had not spoken to an attorney about testifying before the Grand Jury, and that he did not know that he had a right to have an attorney in the Grand Jury room after he had signed and sworn to the waiver of immunity. He was then sworn, again signed the waiver, and testified about the incidents in question. He was indicted, charging him with a scheme to defraud in the first degree, grand larceny in the second degree, grand larceny in the third degree (8 counts), and petit larceny (9 counts).

He now moves, for an order pursuant to CPL 210.20 dismissing the indictment on the ground that he had immunity under CPL 190.40 with respect to the offenses charged. He argued that the waiver of immunity executed by him was invalid because his right to counsel had attached at the time he was arraigned on the felony complaint, he signed the waiver in the absence of counsel, and he did not make a knowing and voluntary waiver of that right at the Grand Jury proceedings. The motion was granted and indictment dismissed.

The court held that it is well established in this State that an accuse against whom formal criminal charges have been filed has an indelible right to counsel. Once an accusation is made by the filing of a felony complaint, the matter is in litigation and this “is precisely the juncture at which legal advice is crucial and any discussions relating thereto should be conducted by counsel: at that point the parties are in no position to safeguard their rights”. Moreover, “nice distinctions between the need for counsel at various stages of the proceedings are irrelevant once the right to counsel has indelibly attached”.

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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.

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Records reflect that a man went to the accused, who was then an Assemblyman, for assistance in recovering the designation as a County Towing Garage which he had previously enjoyed. In response to this entreaty the Assemblyman made a telephone call to the County Comptroller, and requested his help in securing the sought after designation. In return, the Assemblyman allegedly demanded and received remuneration. Another was also introduced to the Assemblyman who was interested in obtaining contracts for cement work. Again a telephone call was made and again remuneration was allegedly sought and received. Eventually these criminal events came under the scrutiny of a County Grand Jury where he denied receiving money from either complainants.

He now stands accused of Grand Larceny in the Third Degree by Extortion and of two counts of Bribe Receiving in the first indictment, and in the second indictment of two counts of Perjury in the First Degree. The accused now moves for a trial order of dismissal on the grounds that the criminal evidence is not legally sufficient and for an acquittal on the grounds that the evidence is insufficient as a matter of law to prove his guilt beyond a reasonable doubt.

The court ruled that the evidence under CPL 70.10(1) is legally sufficient. However, the only testimony as to the elements of a threat and the instilling of fear is an isolated statement by the first worker. The manner in which this testimony was given, taken in context, renders it implausible that there was a threat made by the accused to the worker which instilled in the latter a fear that the accused would harm him materially with respect to his business or financial condition. This implausibility is so manifest that there exists a reasonable doubt as a matter of law as to his guilt of Larceny by Extortion. Therefore, the first indictment should be and the same is hereby dismissed.

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On the evening of October 4, 1976 defendant was arrested on a warrant issued by the Nassau County District Court for the charge of forgery in the second degree. At that time, defendant was on parole from a 1964 sentence of 10 to 20 years’ imprisonment imposed upon his conviction of the crimes of forgery and grand larceny.

A Nassau County Criminal lawyer said that in the early hours of October 5, 1976, defendant was questioned by the police and made a statement concerning the charges then lodged against him, which involved possession of a forged $1,200 check from a Shoe Repair and attempted grand larceny arising out of an unsuccessful effort to cash that check. Thereafter defendant claims that he spoke with a Detective of the Nassau County Police Department, who solicited his co-operation and assistance in a pending homicide investigation.

Defendant was then taken to the headquarters of the District Attorney’s Rackets Bureau in Bethpage, where he met with an Assistant District Attorney. In order to effectuate the previously agreed upon bargain, there was an explanation on the conditions upon which defendant had agreed to co-operate, and obtained the consent of Inspector General of that office to defer execution of the violation of parole arrest warrant.

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Defendant moves for re-sentence of a 1964 conviction in this Court. The sentence in question was ten to fifteen years in Prison for Grand Larceny, first degree, as a third felony offender. He contends that his two prior cnvictions (both in Washington, D.C.) do not constitute felonies under Sec. 1941 of the Penal Law, which in effect provides that a court may sentence a defendant as a multiple offender if the previous crimes committed by the defendant in a foreign jurisdiction would constitute criminal felonies if committed in New York. His moving papers and memorandum of law show extensive research and his contentions are fortified with numerous citations of authority.

It appears that in April, 1946, defendant was convicted of Robbery in the Second Degree, after trial in the District Court, District of Columbia, and sentenced to a term of from two to six years in prison. Again, in 1956, in the same court, upon his plea of guilty to Attempted Robbery, he was sentenced to prison for a term of from one to three years. Criminal Defendant contends, however, that the statutes under which he was convicted in the District of Columbia are not proper multiple offender predicates since the said sections define as robbery, acts, which if committed in New York would not be considered felonies.

Defendant argues that since Sec. 22-2901 provides that a robbery may be committed in the District of Columbia by ‘stealth’ but without force that they are not crimes which, if committed within this state, would be a felony and therefore are not a proper basis for sentencing as a third felony offender.

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In a coram nobis proceeding, defendant appeals from an order of the County Court, Nassau County, dated February 26, 1963, which denied after a hearing his application to vacate a judgment of said court, rendered May 26, 1961 after a jury trial, convicting him of robbery in the first degree (two counts); grand larceny in the first degree (two counts); and assault in the second degree (two counts); and sentencing him to serve concurrent prison terms of ten to twenty years on each robbery count; five to ten years on each larceny count; and two and one-half to five years on each assault count.

The criminal defendant, his brother, one RH and two others (MO and RW) were indicated in 1956 in a thirty-count indictment arising out of the hold-up of a card game. The identity of the defendant and his brother being unknown, they were referred to in the indictment as ‘John Doe’ and ‘Richard Roe.’ Soon after the commission of the crimes, MO and RW were apprehended, tried and convicted. On appeal by RW, the judgment of conviction as to him was reversed by this criminal court.

The codefendant RH was apprehended in May, 1960. Thereafter he and the police of Nassau County made a deal whereby, in return for his identification of the defendant and his brother, RH was allowed to plead guilty to attempted robbery in the third degree in satisfaction of the indictment, whereupon he received a very light sentence, to wit, 2 1/2 to 5 years as a second felony offender.

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The petition before this Court arises in the wake of the dismissal of the referenced indictment returned in Nassau County upon a grand jury presentation by the Office of the Nassau County District Attorney. Both the “Office” and the Attorney are respondents here. The petitioners are the named defendants under the indictment which charged one count of grand larceny in the second degree under Penal Law 155.40(1). Following arraignment, each petitioner, as ‘ defendant, submitted an omnibus motion before the Nassau County Court, the Honorable Justice, presiding.

A Nassau County Criminal attorney said that the Justice decided defendants’ motion by an order dated October 22. 2010. which was entered on October 26, 2010, finding that the District Attorney indeed lacked the authority to appoint the prosecutor who presented the subject charges to the grand jury.

On appeal by the People, the Appellate Division. Second Department, on October 4.2011. affirmed the Order of the Justice. Thereafter, the People sought leave of the Court of Appeals to appeal the Order of the Appellate Division, which application was denied by Order dated March 30, 2012.

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