New York Criminal Lawyer Blog

This is a criminal case where the Relator was sentenced by the Nassau County Court as follows: For Robbery, 1st Degree, 30–60 years; Burglary, 1st Degree, 150–30 years; Grand Larceny, 1st Degree, 10–20 years; Assault, 2nd Degree, 5–10 years. The sentences were ordered to run concurrently.

A Nassau County Criminal lawyer said that on September 12, 1958, the defendant appeared without counsel for resentence before the Nassau County Court who vacated the 1948 sentence as illegal and resentenced the Relator as follows: Robbery, 1st Degree, sentence suspended; Burglary, 1st Degree, 10–20 years; Grand Larceny, 1st Degree, 2–10 years; Assault, 2nd Degree, sentence suspended.

The net result of the resentence process was the imposition of two prison sentences: for Burglary, 1st Degree, 10–20 years; for Grand Larceny, 1st Degree, 5–10 years. The other two sentences were suspended. The Court stated, however, that the sentence for Grand Larceny, 1st Degree, was to begin at the expiration of the sentence imposed for Burglary so that it became a consecutive sentence rather than a concurrent one as originally pronounced. Relator was to receive credit for all time already served.

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The records reveal that the accused moves before the Court, pursuant to Criminal Procedure Law, section 440.20, in order to vacate the sentences imposed upon him pursuant to an Indictment. It appears that after having been found Guilty by a jury of the Crimes of Burglary in the Third Degree and Grand Larceny in the First Degree, he was sentenced to an indeterminate term of imprisonment for a maximum of ten years and a minimum of five years under each count, said sentences to be served consecutively. The accused asserts that these sentences are violative of former Penal Law Section 1938 which precludes double punishment for a single act, although ‘made criminal and punishable in different ways, by different provisions of law.’

In support of the foregoing contention, the accused alludes to People v. Savarese, which involved a kidnapping and a robbery. A Judge held that if all the acts performed were Necessary or Incidental to the commission of a single crime and were motivated by an intent to commit that crime, Then even if another separate crime be committed or another statute also be violated, he may not be doubly punished. If, however, any of the acts were not necessary to or incidental to the commission of the crime intended and those acts result in the commission of a separate crime, then he may be punished for each crime. Applying this rule, the Judge found that kidnapping a truck driver and his assistant while their truck was being hijacked was necessary and incidental to the robbery; therefore, though properly convicted of both kidnapping and robbery; the accused could not be punished for both crimes.

Court ruled that Section 1938 of the Former Penal Law provides, in part, as follows: ‘An act or omission which is made criminal and punishable in different ways, by different provisions of law, may be punished under any one of those provisions, but not under more than one’.

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The defendant was indicted by a Nassau County Grand Jury on September 23, 1985, charged with Grand larceny, Second Degree. In the indictment, it is alleged that, on or about July 15, 1985, the defendant stole a 1984 Pontiac Trans-Am from an automobile dealership in Hicksville, New York.

A Nassau County Criminal lawyer said that on August 19, 1985 the defendant was charged in a felony complaint with stealing the aforesaid Pontiac, and on September 23, 1985 he was indicted for Grand larceny in the Third Degree in connection with that alleged theft.” The People do not contest the factual allegations set forth by defense counsel only his legal conclusions.

The fundamental principle that a defendant may not be placed twice in jeopardy for the same offense is embodied in the federal and New York State constitutions, and in the statutory law of this state. In the instant case, there is no federal constitutional issue involved even though the 5th Amendment prohibition was ruled applicable to the states in several cases. Under the “dual sovereignties” doctrine, successive State and Federal prosecutions based on the same transaction or conduct do not offend the double jeopardy prohibition. Therefore, the challenge here rests solely upon the application of CPL 40.20

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Records show that in this first case, it involves an appeal by the accused from a judgment, convicting her of forgery in the second degree (seven counts), grand larceny in the second degree (two counts) and grand larceny in the third degree (three counts), upon a jury verdict, and imposing sentence. After trial, accused now appeals before the court.

The court held that the jury could not have found by a preponderance of the evidence that venue was properly laid, since there was no indication of where the forgery occurred. The crime of forgery is complete when the instrument is made or altered with fraudulent intent, and the utterance of the instrument is not necessary. CPL 20.40 (subd. 1, par. (a)) requires that Conduct occur within a county sufficient to establish one element of the offense. Appellant resided in another County while the offices of the corporation on whose account the checks were drawn was located in New York County. There was no proof that any element of the crime of forgery, including the intent to forge, occurred in his County. The fact that some of the checks were deposited in banks in the County does not supply the necessary conduct evidencing the intent to forge, since forgery is not a ‘result’ offense. Thus, the seven counts in the indictment charging forgery in the second degree should be dismissed.

The only issue left to prove was whether there was the requisite intent to defraud. Proof of similar uncharged forgeries is usually admissible in order to prove the requisite intent and a common plan or scheme. However, in the case at bar, the introduction into evidence of the seven admittedly forged checks, together with the testimony of witnesses, provided enough material from which an intention to defraud could have been found by the jury. Thus, the prejudicial effect of such proof far outweighed its probative value on the issue of intent.

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The Defendant was originally charged, by Felony Complaint, on November 23, 2010 with Attempted Grand larceny in the Third Degree, in violation of Penal Law §§ 110.00/155.35.On June 9, 2011this charge was reduced, pursuant to CPL § 180.50, to Attempted Grand larceny in the Fourth Degree, in violation of Penal Law §§ 110.00/155.30(1). This reduction, and the conversion of the Felony Complaint to a District Court Information, was accomplished by the appropriate notations having been made on the Felony Complaint, in accordance with CPL § 180.50(3)(a)(iii) and by the annexing of a short form order directing such reduction to the Felony Complaint.

The Criminal Defendant now moves to dismiss the District Court Information, as being facially insufficient, pursuant to CPL § 170.30(1)(a). The Defendant argues that the People’s theory of the case is one of larceny by extortion and that “the information herein does not advise or place defendant on notice that the theory of prosecution is based upon larceny by extortion.”

In opposition the People argue that the facial sufficiency of the District Court Information was already determined at the time of the reduction of the Felony Complaint, pursuant to CPL § 180.50(3)(a)(iii), and that this court is now precluded from hearing this issue. Alternatively the People allege that the Information is facially sufficient.

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Defendant, through his attorney, moves this Court pursuant to CPL § 440.20, for an order setting aside and modifying the sentence previously imposed upon him on the grounds that the sentence was unauthorized; was illegally imposed; and is invalid as a matter of law.

A Nassau County Criminal attorney said that on February 8, 1995, the Grand Jury of Nassau County indicted the defendant for several crimes of: Offering a False Instrument for Filing; Attempted Grand larceny; Grand larceny; and Defrauding the Government.

On December 10, 1996, the criminal defendant was convicted, after a jury trial, on each count of the indictment. Post verdict, the defendant moved this Court, pursuant to CPL § 330.30(1), for an order setting aside the verdict. The Court granted the defendant’s motion with respect to Counts 3 and 4, and denied defendant’s motion with respect to Counts 1 and 2.

In this Criminal case, the defendant moves to dismiss the superior court information in this matter pursuant to section 210.20 of the Criminal Procedure Law on the ground that the information charges an offense other than the one for which he was held by the Long Beach City Court for action of the grand jury.

This matter was previously the subject of consideration by this Court in relation to a motion to amend the superior court information. In its decision on the former motion this Court expressed the view that under the provisions of the recent amendment to the New York State Constitution a person may only waive indictment and consent to be prosecuted by superior court information in relation to the charge in the local criminal court for which that person was held for grand jury action.

This precise issue, however, could not be decided on the previous motion and it required this motion to dismiss to place the question squarely before the Court.

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In this Criminal action, the defendant here pleaded guilty only after the court told him that, if he did not, he would be remanded until his next scheduled court appearance. The issue presented on this appeal is whether the plea was voluntary.

A Nassau County Criminal lawyer said that in November 2005, the People filed a felony complaint charging the defendant with two counts of falsifying business records in the first degree. He was arraigned on the complaint and released on $1,000 bail. Seven months later, a grand jury returned a 40-count indictment charging the defendant with two counts of grand larceny in the third degree, scheme to defraud in the first degree, granc larceny in the fourth degree, petit larceny, attempted granc larceny in the fourth degree, attempted petit larceny, twenty-four counts of falsifying business records in the first degree, seven counts of insurance fraud in the fourth degree, and two counts of insurance fraud in the fifth degree.

The charges were based on allegations that, between December 21, 1999 and October 13, 2005, the defendant, a licensed dentist with a practice in Hempstead, New York, repeatedly submitted falsified claim forms to a number of insurance carriers and attempted to alter his own business records to avoid detection.

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Appeals by the defendant, as limited by his motion, (1) from a sentence of the Supreme Court, Queens County, imposed January 27, 1988, the sentence being an indeterminate term of 2 to 4 years imprisonment, upon his conviction of grand larceny in the third degree, after a plea of guilty, and (2) by permission, from an order of the same court dated June 13, 1990, which denied his motion pursuant to CPL 440.20 to vacate his sentence.

A Nassau County Criminal attorney said that on May 14, 1987, at the corner of the Van Wyck Expressway and Atlantic Avenue in Queens, the defendant stole a 1986 Pontiac Firebird. Approximately one hour later, the defendant used the stolen vehicle as a getaway car after an accomplice forcibly stole a woman’s purse in Nassau County. After a high speed chase with police, the criminal defendant crashed the car into a telephone pole and was arrested.

In Queens, the defendant was charged, inter alia, with grand larceny in the third degree under Queens County Indictment Number 3518/87. In Nassau County, he was charged, inter alia, with robbery in the second degree.

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The 4th Amendment to the United States Constitution guarantees that Citizens shall be free of unreasonable searches and seizures, of individual liberty and privacy, and the right to be left alone. The landmark Court of Appeals decision in a case, firmly established that “Before the police may stop a person pursuant to the common-law right to inquire there must exist at that moment a founded suspicion that criminal activity is present,” and “the police may not justify a stop by a subsequently acquired suspicion resulting from the stop.” It has been long held that the stop of an automobile constitutes a limited seizure of its occupants for federal and state constitutional purposes. The Court of Appeals has specifically held that in order for a Police Officer to legally stop a vehicle, the Officer needs to have either observed a violation of the Vehicle and Traffic Law, or reasonably suspects that the occupants had been, were then, or were about to be engaged in criminal conduct.

In this case, the Officer testified that she observed defendants entering a bank, in a high crime area, with clothing that was suspicious given the weather conditions. Specifically, the defendants were wearing heavy hooded sweat shirts on a warm day when Officer was wearing a T-shirt. The Officer observed defendants put up their hoods before entering the bank and then she observed them race out of the bank and into a moving Toyota Camry.

The Officer testified that she believed that a bank robbery had occurred. This Court finds that the observations of the Officer correctly supported her belief. It is clear that a Police Officer may not stop a vehicle merely based on a hunch.