This is a written version of a decision that was delivered orally on a motion to dismiss an indictment.
This case is one of a dozen separate cases resulting from an investigation by the District Attorney and a Grand Jury of alleged insurance fraud by a number of lawyers and doctors in the New York City metropolitan area involving false claims for injuries in accidents.
The decisive issue in this case is whether geographical jurisdiction–also called venue lies in the County because an undercover agent placed a telephone call from the County to the defendant in New York County, whereupon the criminal defendant solicited him on the telephone to commit the crimes.
An important witness in the investigation of many of the lawyers was an accomplice chiropractor, whose offices are in New Hyde Park and Brooklyn. Cooperating with the District Attorney, he secretly recorded conversations with targeted lawyers, and he testified before the Grand Jury. Tape recordings of conversations between the chiropractor and the lawyers were introduced in evidence before the Grand Jury.
The present indictment charges the defendant, a lawyer whose office is in Manhattan, with insurance fraud and falsifying business records of the chiropractor and the insurer. The charges, clarified by a bill of particulars, allege that the defendant solicited the chiropractor on the telephone to make up and submit back-dated bills for fictitious visits by two clients, to beef up claims on insurance policies for injuries from automobile accidents. During the conversation, the chiropractor was in the County, having telephoned the defendant’s office in Manhattan from the District Attorney’s Office in Brooklyn.
Although venue is not an element of the crime, it must be established before a grand jury. The standard of proof on review of the sufficiency of evidence of venue before a grand jury is low: whether jurisdiction fairly and reasonably can be inferred from all the facts and circumstances introduced into evidence.
The evidence before the Grand Jury, taken in the light most favorable to the complainant as it must, showed that the chiropractor created the phony bills in his office in New Hyde Park and filed them there. The defendant or the chiropractor submitted the bills from New Hyde Park or Manhattan to the insurer’s offices in Nassau County. The falsified records of the insurer were in Nassau County. All correspondence from the defendant in the alleged schemes was sent from Manhattan to places in Nassau County. Although in the crucial telephone conversation, the chiropractor was returning the defendant’s telephone call, the evidence did not show where the defendant had called to, and there was no evidence that the defendant knew that the chiropractor was in Kings County when the defendant solicited him on the telephone to commit fraud; in all other communications between them by mail or telephone the defendant was in Manhattan and the chiropractor was in his Nassau County office.
The evidence before the Grand Jury showed, and the complainant commendably conceded on oral argument, that the only contact with Kings County was that telephone conversation between the chiropractor in the District Attorney’s Office in Kings County and the defendant in his office in New York County.
The complainant rely entirely on Criminal Procedure Law which provides that in determining the proper county of venue–a statement made on the telephone or by mail by a defendant in one county to a person in another county is deemed to have been made in both counties.
If the defendant’s solicitation to defraud, although occurring in New York County, is deemed to have been committed in Kings County, then the Kings County Grand Jury and the Court have jurisdiction pursuant to Criminal Procedure Law. If the defendant is deemed to have been in Kings County, then his conspiracy with the chiropractor would be deemed to have occurred here. There would also be venue in Kings County pursuant to Criminal Procedure Law which places venue in a county if conduct in that county is sufficient to establish an element of the crime; that element would be the defendant’s intent to defraud.
The flaw in the complainant’s mechanical application of Criminal Procedure Law is that it ignores the constitutional background of Criminal Procedure Law. Viewed in such contexts, the law does not apply to the telephone conversation. The reason is that there was no actual criminal conduct or intent in Kings County, no effect in Kings County of the defendant’s conduct in Manhattan, no intent to have an effect in Kings County, not even evidence of knowledge by the defendant that the chiropractor was in Kings County when the defendant solicited the chiropractor. All acts by the defendant were performed in counties other than Kings, and every result of his conduct was outside Kings County.
A defendant has the right under Article I, Section 2, of the Constitution of New York to be prosecuted in the county where the alleged criminal conduct was committed, unless the Legislature vests jurisdiction in some other county. The right to trial by jury incorporates the common law as it stood at the time of independence. That includes the right to be tried by a jury of the vicinage, the county where the alleged criminal conduct was committed.
The guarantee to a defendant of the right to trial by a jury of the vicinage is a right historically regarded as vital. Indeed, limitation of that right was one of the grievances that led to the American Revolution. The courts of New York have long recognized that this right is not to be lightly disregarded and that only the most compelling reason could justify trial by a jury not drawn from the vicinage.
Thus, if a defendant is convicted by a jury that includes, over timely objection and after exhaustion of the defendant’s peremptory challenges, a juror who is not a resident of the county, the conviction may be void. The Court of Appeals has included a juror’s residence among the qualifications that go to the substance of a juror’s function.
The Court gave a restrictive interpretation to two other venue statutes. Criminal Procedure Law provides that an offense committed in a private vehicle during a trip through more than one county may be prosecuted in any county through which the vehicle passed. It also provides that an offense committed within 500 yards of a boundary between two counties may be prosecuted in either county. The plain language of these statutes would have placed venue in Kings County for prosecution of a rape committed in a car in Queens County within 500 yards of the border of Kings County during a trip from Brooklyn to Queens. Nevertheless, the Court held that these statutes are not applicable when the site of the crime is ascertainable.
The Court stated that statutory exceptions to the rule that the prosecution should be held at the place where the crime was committed were created out of necessity. Strict adherence to the common-law rule often created insurmountable obstacles to prosecution. For instance, if part of the crime had been committed in one county and part in another, the defendant could not be tried in either. In this and similar cases where the law would otherwise be frustrated, the general rule was altered by statute to insure that there would always be some forum where the crime could be prosecuted.
To avoid the risk of abuse, and to preserve the defendant’s right to a trial by a jury of the county where the alleged criminal conduct occurred, the courts of New York State must be hesitant, notwithstanding the literal language of Criminal Procedure Law, to base venue entirely on the location of an undercover informer’s communication.
The indictment is dismissed, without prejudice to presentation of appropriate charges to a grand jury of New York County.