Defendant is charged with two crimes of asking for and receiving payments of money in in consideration for acts relating to the performance of his office while Commissioner of Public Safety (Penal Law, section 1826, Taking unlawful fees). His motion is based upon three claims. The first is that no legally significant act relating to the crimes set forth in the indictment occurred in New York County so that jurisdiction in New York County is lacking. Defendant next urges that the evidence presented against him before the grand jury consists solely of the uncorroborated testimony of an accomplice and is, accordingly, insufficient in law. Defendant’s final claim is that the payments allegedly received by him did not relate to matters over which, as required by Penal Law, section 1826, he could exercise any official duty or discretion; that is, the purchase of parking meters on behalf of the City of Long Beach.
The charge in each count of the indictment is that defendant, in New York County, ‘asked for, received, and consented and agreed to receive’ unlawful fees from an alleged accomplice, and a Parking Meter Division of Motor Products Corporation. The first count additionally charges that unlawful fees were also taken from a related entity, Parking Meter Corporation. The substance of both counts is that the defendant, as Commissioner of Public Safety of the City of Long Beach, agreed to exercise the authority of his office on behalf of the aforementioned corporations in order to promote the sale of their parking meters to the City of Long Beach.
The first count charges the defendant with having committed the crime in New York County between 1957 and 1960, and that he received the sum of $23,500 for his criminal efforts during that period. The second count charges the defendant with the same crime in New York County but limits itself to the specific transaction reflected by the last payment of $5,875 made and received, the sum paid to the defendant in connection with this transaction is embraced in the first count.
An examination of the grand jury testimony reveals that the defendant entered into an agreement in Chicago, Illinois, whereby he would induce and cause the City of Long Beach to purchase a certain number of parking meters from the parking Corporation for which intervention the defendant would receive the sum of.$23,500. It is contended by the People that, in order to disguise the illegality of the transaction, the defendant concocted a scheme whereby he would give a licensing agreement for the manufacture and distribution of a cigarette lighter, allegedly invented by him, to the parking corporation. Royalty payments to the defendant under the supposed license would actually be for the defendant’s co-operation and assistance in promoting the sale of parking meters to the City of Long Beach. Pursuant to this arrangement, the corporations, on a periodic basis, mailed ‘royalty’ checks to the defendant in Nassau County from their offices in Chicago, Illinois. To further camouflage these disbursements, the defendant caused to be created a corporate entity fully under his control, as the purported owner and licensor of the cigarette lighter patent. While this corporation had its principal place of business in the city of Long Beach, and its certificate of incorporation was filed in Nassau County, its licensing agreement with the parking corporation was signed by two dummy officers of the corporation in New York County. The only other vestiges of connection of New York County to the crimes charged are that corporate subscribers (not the defendant) signed the certificate of incorporation of the corporation in New York County, and that its certificate of dissolution was likewise signed in New York County by one of its corporate officers It is upon these contracts within New York County that the People’s claim of jurisdiction is based.
The issue in this case is whether there is basis for the intervention of authorities from the events of completed crime.
The Court ruled that these incidents afford any basis in law or policy for the intervention of authorities so remote from the events of the completed crime, so distant from the center of activities of the persons charged with its commission, and so removed from the public interest sought to be corrupted.
At common law, jurisdiction to prosecute crime was entirely dependent upon the occurrence–within a single county –of all the elements constituting the offense. Considerations of locality and vicinage, born of a society wherein local authority predominated, and movement was limited, produced juridical concepts restricting the power of each enclave to its own environs. Despite the present day centralization of government, the diminished importance of land as the source of political and economic duty and the immeasurably greater mobility of people, the concept of locality as a basis for jurisdiction remains with us to a very great degree. In so far as our criminal law is concerned, however, there has been within the last century some relaxation of the rigors of the past respecting jurisdiction, so that the prosecution of crime no longer depends upon the commission within a single county of all the ingredients of the offense. These revisions, however, by no means abandon the concept of locality as a basis for jurisdiction. Thus, it is now provided in section 134 of the Code of Criminal Procedure, that: ‘When a crime is committed, partly in one county and partly in another, or the acts of effects thereof, constituting, or requisite to the consummation of the offense, occur in two or more counties, the jurisdiction is in either county.
A review of the authorities on these points, however, discloses that not every act, occurrence, or effect in some way connected with the commission of a crime is jurisdictionally significant.
For an act or effect to be accorded significance, it must be established that the alleged jurisdictional incident was ‘essential in the consummation of the crime alleged in the indictment, or constituted ‘one or more of (the) substantive and material parts’ of the crime. Thus, in one case, the Court of Appeals concluded that the crime of neglect of duty on the part of a public officer could occur only in New York County, the county where the neglected duty was required to be performed. The fact that the performance of that duty also required the defendant to investigate alleged criminal conditions occurring in Kings County–which investigation the defendant did in fact conduct–was insufficient to extend jurisdiction to the latter county. In short, the defendant’s conduct in, and relationship to events in Kings County, while of historical and evidentiary relevance, constituted no substantive or material element of the crime charged.
Further support for the view that acts, to be jurisdictionally significant under section 134, must be substantively essential to the commission of a crime.
From all of the foregoing, it seems apparent that the acts claimed to have occurred in New York County in connection with the crime charged, were, as in the language of the a case law ‘mere incidents in the history and not necessary, essential, or indispensable to the consummation of the crime’. The crime for which the instant defendant is indicted is the taking of unlawful fees. The agreement to take these fees was made in Chicago and the receipt of the illicit payments took place in Nassau County, where the defendant received the bogus royalty checks. These events together constituted the crimes charged and proof of the facts concerning them alone, would satisfy the requirements of legal sufficiency. While what occurred in New York County may have the effect of lending detail to the ultimate acts constituting the crime in Nassau County, the events which transpired here were in themselves neither criminal on their face nor substantive elements of the offense as defined by Penal Law, section 1826. Falling short of these qualities, the acts depended upon should not supply the basis for so important a finding as jurisdiction, unless that concept, as derived from the common law, is to be no more than the means by which random localities may intervene in the affairs of political subdivisions over Where, as in this case, the events Where, as in this case, the events relied upon for jurisdictional support show no recognizable impact upon the persons or property of this county, and no bearing upon the public health, morals, or decency of the community here situated the conclusion reached seems all the more justifiable. Expressed somewhat differently, in the terms thought significant by Bishop, what was done in New York County constituted no ‘substantial act of wrong’ and was, at best, ‘some incidental thing, innocent in itself alone’. In the circumstances presented, jurisdiction to prosecute this defendant never vested in the courts or authorities of this county.
While the Court have chosen to rest its determination upon the language of section 134 of the Code of Criminal Procedure and the interpretation given to this provision by our courts, the court believes in its position derives considerable additional support from the previous cases, both of which are cited in the defendant’s memoranda. It is of no jurisdictional consequence that acts occurring in one county operate to bring a crime to its completion elsewhere, if those acts do not in law reach the level of an Attempt to commit the complete crime. For the acts in question here to have satisfied that test, they would have had to carry ‘the project forward within dangerous proximity to the criminal end to be attained. ‘Neither combination nor incitement nor preparation’ would have been enough. At best, the contractual and incorporative events occurring in New York County were preparatory, and supplied no immediate point of departure from which the crime charged would, of necessity, have eventuated.
It is urged by the People that the Fein case is sui generis in that the crime involved there was criminally concealing and withholding property which, it is said, is capable of commission only at a single place. Whatever merit may inhere in this view, it is nevertheless clear that the Court of Appeals decision by explicitly relying upon its previous decision. This is crucially significant for the reason that in on case, the court had before it Penal Law, section 1930(1), a statute akin to the Code of Criminal Procedure, section 134. The only difference between these two sections for the purposes of this case, is that section 1930(1) required the Court of Appeals to decide whether certain acts committed in New York State, which eventuated in a crime completed in England, constituted a crime committed ‘in part’ in New York.
In view of the court’s disposition of the indictment based upon a fatal lack of jurisdictional nexus, The court did not find the need to explore the other challenges to the indictment.
In dismissing this indictment, the court is mindful of the vigor and scholarly care with which both sides herein have presented their arguments. While the decision arrived at is the result of intensive inquiry into the merits alone, it is worthy of comment that the result reached will prevent the commencement of a lengthy trial, the results of which–if ending in conviction–would, as indicated, very probably require a reversal by our appellate courts. In the present posture of events, it is possible for the People, if they are so advised, to move for a review of this decision–a remedy not available to the defendant. Only after a protracted trial consuming the resources of the parties and the court would the defendant have an opportunity to secure what amounts to a threshold decision fully dispositive of the case.
Public Officials should act within the bounds of their duties and responsibilities. Here in Stephen Bilkis and Associates, our Nassau Criminal Attorneys will guide its clients on how to prosecute these corrupt public officials. Call us now it you are one of the victims of these officials.