New York Criminal Lawyer Blog

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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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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