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Defendant Claims Double Jeopardy

A New York Criminal Lawyer said 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 Robert Chevrolet, an automobile dealership in Hicksville, New York.

The defendant has moved to dismiss the indictment on the ground that the prosecution of the indictment is barred by dint of a previous prosecution, pursuant to section 40.20 of the Criminal Procedure Law. In support of his motion, the defendant alleges the following facts: Upon information and belief, the defendant appeared on September 25, 1985 in Passaic County New Jersey Superior Court and was sentenced to four years in a correctional facility for receiving stolen property. The receiving stolen property conviction was based on the defendant’s having been arrested on July 16, 1985 in Passaic County in possession of the same 1984 Pontiac automobile that he allegedly stole in Nassau County on July 15, 1985 from Robert Chevrolet.

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.

A New York Criminal Lawyer said 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 Benton v. Maryland. 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.

A Long Island Criminal Lawyer said that CPL 40.20 supersedes the dual sovereignties doctrine, and extends double jeopardy protection generally to offenses arising out of a common event. Unless one of the seven enumerated exceptions set forth in CPL 40.20(2) is made out, a person may not be separately prosecuted for two offenses based upon the same act or criminal transaction. Thus, absent the statutory exceptions, no matter the number of statutory offenses technically violated, or the number of jurisdictions involved, an accused is not to suffer repeated prosecution for the same general conduct.

This Court must therefore first determine whether the instant prosecution for larceny of a 1984 Pontiac Trans-Am automobile and the prior prosecution in New Jersey for receiving stolen property arise from the same criminal transaction.

A criminal transaction is defined as, conduct which establishes at least one offense, and which is comprised of two or more or a group of acts either (a) so closely related and connected in point of time and circumstances of commission as to constitute a single criminal incident, or (b) so closely related in criminal purpose or objective as to constitute elements or integral parts of a single criminal venture.

There is no question, and the People do not really contest, that this prosecution and the previous prosecution in New Jersey arise out of a single criminal incident, and are integral parts of a single criminal venture.

However, the determination that only one criminal transaction is involved does not automatically bar a second prosecution. Seven exceptions, set forth in CPL 40.20(2), qualify the general proscription. The People argue that the first two such exceptions apply to this case. The first provides, A person may not be separately prosecuted for two offenses based upon the same act or criminal transaction unless: (a) The offenses as defined have substantially different elements and the acts establishing one offense are in the main clearly distinguishable from those establishing the other.

The People argue that there is clearly a difference in the elements between the New York larceny statute (PL 155.35) and the New Jersey law defining receiving stolen property. The People must prove value and theft by the defendant in a grand larceny, but under the New Jersey statute merely possession and knowledge of property stolen is sufficient.

The People further argue that the acts necessary to establish larceny are clearly distinguishable from those necessary to establish receiving stolen property, apparently because, (1) under New Jersey law, larceny and receiving stolen property are offenses of separate and inconsistent nature; (2) the possession occurred in another state one day after the larceny was allegedly perpetrated; and (3) proof of possessing stolen property would not prove Grand Larceny in the Second Degree.

A Queens Criminal Lawyer said that in support, the People argue that the defendant’s New Jersey conviction for receiving stolen property is analogous to New York’s charge of receiving stolen property prior to New York’s revision of that Penal statute in 1967. Citing People v. Zimmer, and State v. Vanderhave, the People assert that larceny and possession of stolen property are.

separate, distinct offenses aimed at very different evils. They contend, based upon Vanderhave, that New Jersey does not treat larceny and receiving stolen property as offenses aimed at the same evil, as New York [now] appears to be doing. They also reiterate their contention, set forth in detail above, relating to the differing elements of the two crimes.

The state of the law in New York with respect to the double jeopardy/previous prosecution considerations implicated by successive prosecutions for larceny and possession of stolen property is clear. It is generally held that the exception contained in CPL 40.20[2][a] is inapposite because the acts establishing the larceny are not clearly distinguishable from those establishing the possessory crime.

As emphasized above, the statutory exception is couched in conjunctive, not alternative, terms. Both parts of the statutory exception must be satisfied before it may be invoked in a particular criminal transaction to defeat a previous prosecution claim. That portion of the exception requiring that the acts establishing the offenses be clearly distinguishable is not so satisfied. The exception contained in CPL 40.20(2)(b) is generally held to be inapplicable to successive larceny/possession prosecutions because the harms or evils to be prevented by the respective statutes are not very different. In fact, in New York, criminal possession of stolen property is but a form of larceny. Furthermore, the other requirement of the paragraph (b) exception has also been deemed satisfied in larceny/possession prosecutions because, the larceny charge would have been impossible without the criminal possession. Thus the latter is considered a lesser included offense of the former

Accordingly, it cannot be said that each offense contains an element not contained in the other. Moreover, although a defendant may now be prosecuted for and convicted of both larceny and criminal possession, he may not be punished consecutively for both where they arose from the same criminal transaction.

Therefore, if the New Jersey statutes treating larceny and possession of stolen property are not radically dissimilar from those in New York, the rationale of, and reasoning contained in, the foregoing cases would apply to this case and bar the instant prosecution.

The defendant was convicted in New Jersey of Receiving Stolen Property. In pertinent part, that statute provides, A person is guilty of theft if he knowingly receives or brings into this State movable property of another knowing that it has been stolen, or believing that it is probably stolen. It is an affirmative defense that the property was received with purpose to restore it to the owner. Receiving means acquiring possession, control or title, or lending on security of the property. The statute thus makes the knowing possession of stolen property, with intent to benefit someone other than the owner, a crime. And, that, of course, is the basic definition of criminal possession of stolen property in New York. Theft is the New Jersey equivalent of larceny and is defined, for the purposes of this case, as follows: A person is guilty of theft if he unlawfully takes, or exercises unlawful control over, movable property of another with purpose to deprive him thereof.

Deprive means: (1) to withhold or cause to be withheld property of another permanently or for so extended a period as to appropriate a substantial portion of its economic value, or with purpose to restore only upon payment of reward or other compensation; or (2) to dispose or cause disposal of the property so as to make it unlikely that the owner will recover it.

When the foregoing is compared with New York’s definition of larceny, the similarity is striking: A person steals property and commits larceny when, with intent to deprive another of property or to appropriate the same to himself or to a third person, he wrongfully takes, obtains or withholds such property from an owner thereof.

The similarities extend further than that. It should be noted that the relationship between the larceny and the possession statutes in both jurisdictions is also similar, if not identical. For example, in New Jersey, on the facts presented by this case, the grade of both the actual theft and the possession crimes would be the same. That grade may be determined by reference to either the value of the property or its nature. In either instance they are both third degree crimes, punishable in the ordinary case by imprisonment for a specific term of years which shall be fixed by the Court and shall be between 3 years and 5 years. Had both crimes been within the geographical jurisdiction of New Jersey, consecutive sentences would have been warranted only if the receipt of the goods somehow occurred separately from the actual taking. In New York, the larceny/possession crimes chargeable in this case would both be Class D felonies, based upon the value of the property stolen, punishable by up to 7 years imprisonment in the ordinary case. As with New Jersey, consecutive sentences in this case would not be authorized.

Further, New Jersey has classified receiving stolen property as a form of theft.. In New York, criminal possession of stolen property is but a form of larceny. Furthermore, both pay no more than lip service to the concept that larceny and possession of stolen property by the thief are separate and discrete offenses, separately punishable.

Finally, New Jersey’s lack of geographical jurisdiction over the actual stealing of the automobile does not dilute either constitutional or statutory double jeopardy/previous prosecution protections.

Double jeopardy claims invoked under CPL 40.20 often arise where another State or the Federal Government has previously prosecuted a New York defendant for one segment of a criminal transaction, although only New York has jurisdiction over another, perhaps more serious segment of the same transaction.

Here, as in Matter of Wiley v. Altman, the New Jersey receiving stolen property statute provides for the same penalty as the object crime. Clearly, then, both the New Jersey prosecution, based though it was on that State’s receiving stolen property statute, and the present prosecution for larceny under this State’s laws were directed at a like goal: punishment for the unlawful taking of a particular automobile.

Based upon the foregoing, it is clear that the double jeopardy/previous prosecution analyses contained in Lennon, Harris, and Fletcher apply here. This case does not fit within the parameters of any of the exceptions set forth in CPL 40.20(2). Specifically, the acts establishing larceny are not clearly distinguishable from those establishing the possessory crime, and the statutory provisions involved are not designed to prevent very different kinds of harm or evil. The instant prosecution of the defendant for larceny of a 1984 Pontiac Trans-Am on July 15, 1985 is therefore barred by his previous conviction in New Jersey for possession of that stolen vehicle on July 16, 1985. That portion of the defendant’s motion seeking an Order dismissing the instant indictment pursuant to CPL 210.20(1)(e) is granted.

If you have been accused of a crime, similar to the above, contact Stephen Bilkis and Associates for free legal consultation. Our Nassau County Criminal Lawyers together with Nassau County Family Attorneys can advice you of your constitutional rights and make the proper legal defenses, just contact us for more information, our offices are located around New York Metropolitan, including Corona.

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