Recent Blog Posts

Charge of Endangering the Welfare of a Child Deemed Facially Sufficient

Brian Perskin — Thu, 26 May 2011 16:28:00 GMT

The People of The State of New York, Plaintiff v. RG, Defendant, 2010NY093732

Judge Matthew A. Sciarrino

Decided: May 19, 2011

DECISION AND ORDER

The defendant, RG, is charged with endangering the welfare of a child (P.L. §260.10(1) and criminal possession of a controlled substance in the seventh degree (P.L. §220.03). She now moves the Court for an order dismissing the charge of endangering the welfare of a child for facial insufficiency.

FACIAL SUFFICIENCY

An accusatory instrument upon which the defendant may be held for trial "must allege 'facts of an evidentiary character' (CPL §100.15[3]) demonstrating reasonable cause to believe that the defendant committed the crime charged (CPL §100.40[4][b])." People v. Dumas, 68 N.Y.2d 729, 731 (1986). Further, a valid criminal court information must contain non-hearsay factual allegations which, if true, "establish...every element of the offense charged and the defendant's commission thereof." CPL §100.40(1)(c).

In determining the facial sufficiency of an accusatory instrument, the court must view the facts in the light most favorable to the People. People v. Contes, 60 N.Y.2d 620, 621 (1983). "That other, innocent inferences could possibly be drawn from the facts is irrelevant on this pleading stage inquiry...." People v. Deegan, 69 N.Y.2d 976, 979 (1987). "So long as the factual allegations of an information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading (citations omitted)." People v. Casey, 95 N.Y.2d at 360.

The within accusatory instrument states that on November 25, 2010, at about 7:20 p.m. inside of 242 West 63rd Street, apartment #1E in the County and State of New York:

...deponent recovered cocaine from on top of the refrigerator in the above apartment.

Deponent further states that the above-described substance is in fact what it is alleged to be based upon information and belief, the source of which is as follows: deponent's prior experience as a police officer in drug arrests and defendant's statements that the substance is in fact what it is alleged to be in that the defendant stated in substance that it was cocaine and she uses a little.

Deponent further states that deponent observed a girl sitting on the couch in the above apartment and that said girl is between two and three feet tall and approximately 40 pounds and, in regards to said girl, the defendant stated in substance that the girl is defendant's granddaughter.

A violation of P.L. §260.10(1) occurs when a person "knowingly acts in a manner likely to be injurious to the physical, mental or moral welfare of a child less than seventeen years old...." "Actual harm to the child need not result for criminal liability...." People v. Johnson, 95 N.Y.2d 368, 371 (2000). "The statute is broadly written and imposes a criminal sanction for the mere 'likelihood' of harm." People v. Johnson, 95 N.Y.2d 368, 372 (2000). "...a court cannot and should not 'await broken bone or shattered psyche before extending its protective cloak around [a] child....'" People v. Portorreal, 25 Misc.3d 1238(A) (Crim.Ct. Queens County [2009], citing Matter of Priscilla Cruz, 121 A.D.2d 901, 903 (1st Dept. 1986).

In the instant case, the cocaine was accessible to anyone in the apartment because it was on top of the refrigerator. Although the cocaine may have been recovered from an area above the height of the child,¹ the cocaine was not "secured or locked.... " People v. Portorreal, 25 Misc.3d 1238(A) (Crim. Ct. Queens County 2009). "It is fair to assume that...the defendant's [granddaughter] could walk and climb and that therefore she could put herself within reach of the [cocaine]." Id. Also, the cocaine could simply fall off the refrigerator. Ingestion of cocaine by the child would certainly be injurious to her physical, mental and moral welfare.

Guidance in reaching this conclusion can be found in People v. Hitchcock, 98 N.Y.2d 586 (2002) and its companion case People v. Duenas, 98 N.Y.2d 586 (2002). See People v. Noce, 24 Misc.3d 1202(A) (Dist. Ct. Nassau County 2009). "In People v. Hitchcock, supra., the court affirmed the defendant's conviction for Endangering the Welfare of a Child where the defendant left firearms openly accessible, while residing with his fiancee and her 14 year-old son. The child took one of the guns and loaded it. The gun accidentally discharged and the child's friend was injured. The Court of Appeals affirmed the defendant's conviction for endangering the welfare of a child.

In People v. Duenas, supra, the defendant lived with his 11 year-old brother. The defendant purchased a gun illegally, and wrapped it in rags, put it "inside a stereo speaker hidden in a closet behind various items of clothing and bags." Id. at 590. The defendant was unaware that his brother had looked through a crack in the bedroom door, and had seen the defendant "cleaning what appeared to be a gun." Id. Several months later, defendant's brother, searched for "about an hour" and found the gun. The defendant's brother and a friend then played with the gun. It accidentally discharged and killed the friend. The Court of Appeals reversed the defendant's conviction for endangering the welfare of a child.

The distinguishing factor between the two (2) cases was that in the former case, where the gun was left out in the open, the evidence supported a finding that the defendant was aware that his conduct would likely be injurious to a child, whereas in the latter case, where the gun was secreted, the defendant did not know that his conduct would likely be injurious to a child.

People v. Noce, 24 Misc.3d 1202(A) (Dist. Ct. Nassau County 2009).

Based on this rationale, the factual allegations, as set forth in the within accusatory instrument, are sufficient, at the pleading stage, to support the charge of endangering the welfare of a child. The allegations that the cocaine was left on top of a refrigerator, and not concealed in any manner, are similar to the factual allegations set forth in Hitchcock where the drugs were openly accessible, and the Court affirmed the conviction for endangering the welfare of a child. Unlike the defendant in Duenas, Ms. Gunter did not make a "significant effort to conceal" the cocaine. People v. Duenas, 98 N.Y.2d at 592.

Furthermore, when a child, "who is capable of absorbing all of his or her surroundings," observes illegal drugs in the home, "there is a real likelihood that he or she will come to view such illegal substances as common household items." People v. Jones, 25 Misc.3d 995, 998-999 (Crim. Ct. N.Y. County 2009). "...the prospect of moral harm in such circumstances, as well as potential physical and mental harm, is neither remote nor speculative." Id. at 999.

Accordingly, the defendant's motion to dismiss the charge of endangering the welfare of a child for facial insufficiency is denied.

This opinion shall constitute the decision and order of the Court.

1. The accusatory instrument is silent as to the size of the refrigerator.

Prostitution Conviction Dropped on Appeal

Brian Perskin — Thu, 26 May 2011 16:05:00 GMT

The defendant plead guilty to prostitution charges but was never informed of any of her rights under Boykin v. Alabama, which requires that a defendant have a full understanding of the consequences and conditions of a plea.

The People of the State of New York, Respondent, Jasmine Vickers, Defendant-Appellant., 59103C/08

Before: Andrias, J.P., Saxe, Catterson, Abdus-Salaam, JJ.

Decided on May 24, 2011

Judgment, Supreme Court, Bronx County (George Villegas, J.), rendered December 8, 2008, convicting defendant, upon her plea of guilty, of loitering for the purpose of engaging in a prostitution offense, and sentencing her to a conditional discharge, unanimously reversed, as a matter of discretion in the interest of justice, the plea vacated, and the accusatory instrument dismissed.

In a criminal court complaint dated October 2, 2008, defendant was charged with prostitution (Penal Law §230.00). According to the complaint and supporting deposition, defendant approached a detective and asked if he wanted to engage in sexual conduct in exchange for $50.

On December 8, 2008, defendant appeared before the criminal term of Bronx Supreme Court. After hearing that the prosecutor was offering "240.37, conditional discharge," defense counsel, after an off-the record discussion, advised the court that "we have a disposition." Defendant then allocuted as follows:

"The Court: Ms. Vickers, your attorney tells me that you wish to plead guilty to section 240.37, is that what you wish to do?

"The Defendant: Yes, sir.

"The Court: Is anyone forcing you to plead guilty?

"The Defendant: No.

"The Court: Are you pleading guilty because you are guilty?

"The Defendant: Yes.

"The Court: Plea acceptable to the People?

"Mr. Dolan: Yes, Your Honor.

"The Court: Waive prosecution by information?

"Mr. Sturman: Yes, Your Honor.

"The Court: Sentence of the Court is a conditional discharge, judgment entered as to mandatory surcharges. Advise your client of her right to appeal."

Defendant now argues that the plea should be vacated since she was never informed of any of her rights under Boykin v. Alabama (395 US 238 [1969]). We agree.

A trial court has the constitutional duty to ensure that a defendant, before pleading guilty, "has a full understanding of what the plea connotes and of its consequences" (Boykin at 244; see People v. Harris, 61 NY2d 9, 19 [1983]). Although the court is not required to engage in any particular litany when allocuting the defendant, due process requires that the record must be clear that "the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant" (North Carolina v. Alford, 400 US 25, 31 [1970]; see People v. Moissett, 76 NY2d 909, 910-911 [1990]). Thus, the court should conduct an allocution that is adequate to ensure that the defendant is guilty of the crime charged and understands the constitutional rights he or she would be waiving by pleading guilty (People v. Harris, 61 NY2d at 17; People v. Nixon, 21 NY2d 338 [1967], cert denied 393 US 1067 [1969]). While the court need not "thoroughly advise[]" the defendant of the rights being waived (People v. Paris, 305 AD2d 334, 334 [2003], lv denied 100 NY2d 597 [2003]), no waiver of these constitutional rights may be presumed from a silent record (Boykin at 242-243). Among the factors to be considered in determining whether a defendant understands the nature of his or her proffered guilty plea are the "age, experience and background of the accused" (People v. Seaberg, 74 NY2d 1, 11 [1989]).

Here, the New York City Criminal Justice Agency Report states that defendant was 20 years old and that this was her first arrest. The New York State Division of Criminal Justice Services report lists only the subject arrest and states that a fingerprint search shows no available prior information for defendant. The abbreviated plea allocution is utterly bereft of any indication that this inexperienced defendant was made aware of the constitutional rights she was giving up as a result of her misdemeanor guilty plea by the court or through consultation with counsel. The allocution consisted, in its entirety, of the court asking defendant whether she wanted to plead guilty, whether she was being forced to plead guilty, and whether she was guilty. Thus, the record fails to establish that defendant knowingly, intelligently and voluntarily entered her plea (see People v. Harris, 61 NY2d at 18; People v. Aleman, 43 AD3d 756, 757 [2007]; People v. Artusa, 19 Misc 3d 145[A], 2008 NY Slip Op 51125[u] [App Term, 2d Dept 2008]).

Moreover, it can not be determined on this record whether defendant knew exactly what she was pleading guilty to. The plea minutes mention Penal Law §240.37, but do not describe the crime or specify whether defendant was pleading guilty under subsection (2) or (3). Further, a conviction for loitering for the purpose of engaging in a prostitution under Penal Law §240.37(2) may be a violation, if it is the defendant's first offense, or a class B misdemeanor, if the defendant has previously been convicted of a violation of that section or of sections 230.00 or 230.05 of the Penal Law. Although defendant was purportedly convicted of the offense as a class B misdemeanor, there is no indication that she was ever made aware of this distinction. Indeed, if this was defendant's first offense, as it appears to be from the records cited above, she may have nevertheless pleaded guilty to a class B misdemeanor even though she could not satisfy an express element of the crime (see People v. Van Buren, 82 NY2d 878 [1993]; People v. Cooper, 78 NY2d 476 [1991]; People v. Denise L., 159 Misc 2d 1080 [1994]).

Although defendant did not preserve her challenge to the voluntariness of her plea (see People v. Lopez, 71 NY2d 662 [1988]), we nevertheless reach the issue in the interest of justice since the plea allocution was so "woefully deficient" (People v. Colon, 42 AD3d 411, 411 [2007]; see People v. Pearson, 55 AD3d 314 [2008]).

The particular circumstances of this case also warrant dismissal of the accusatory instrument in the interests of justice (see People v. Clayton, 41 AD2d 204 [1973]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

NYPD Must Provide Surveillance Tapes in Sexual Assault Case

Brian Perskin — Mon, 23 May 2011 17:21:00 GMT

The People of the State of New York, Plaintiff v. Ray Duran, Defendant, 2010KN093321

Justice Evelyn J. Laporte

Decided: April 14, 2011

DECISION AND ORDER

The defendant, RAY DURAN, is charged with Sexual Misconduct (PL §130.20 [1]); Attempted Sexual Misconduct (PL §110/130.20 [1]); Forcible Touching (PL §130.52); Sexual Abuse in the Third Degree (PL §130.55); Attempted Sexual Abuse in the Third Degree (PL §110/130.55); Petit Larceny (PL §155.25); Criminal Possession of Stolen Property in the Fifth Degree (PL §165.40); and Endangering the Welfare of a Child (PL §260.10 [1]). This court previously signed a subpoena duces tecum for the production of surveillance tapes by the New York Police Department. The NYPD now moves to quash that subpoena. The defendant opposes the quashal of the subpoena.

THE SUBPOENA

The subpoena demands the following from the NYPD:

1. Provide any and all video surveillance images of the front entrance, including but not limited to the lobby, showing individual(s) entering and exiting 452 Marcy Avenue, Brooklyn, New York 11206 on October 27, 2010 between the hours of 1:00 p.m.-4:00 p.m.

2. Provide any and all video surveillance images of the fifth floor hallway of 452 Marcy Avenue, Brooklyn, New York 11206 on October 27, 2010 between the hours of 1:00 p.m.-4:00 p.m.

3. Provide any and all records, including but not limited to logbook or sign-in sheet for guests and visitors, for apartment 5A of 452 Marcy Avenue, Brooklyn, New York 11206 on October 27, 2010.

BACKGROUND

These charges arise from an incident that occurred inside of 452 Marcy Avenue in Kings County New York State, which is a public housing structure. The information alleges that on October 27, 2010, at approximately 12:00 p.m., Defendant took Complainant's iPod without her permission; he then proceeded to repeatedly grab the complainant's breasts and attempted to place his penis inside of the complainant's vagina. The complaint also alleges that the defendant ignored the complainant's pleas to stop and pushed her down, attempting to insert his penis into her mouth. It is further alleged that the complainant was 14 years of age at the time of this event.

Nonparty New York City Police Department (NYPD) moves to quash the above-described judicial subpoena duces tecum (CPLR §2304), issued on behalf of the defendant.

ARGUMENTS

In support of the motion to quash, the NYPD contends that (1) the defendant failed to comply with CPLR §2307 by giving the NYPD at least one day's notice of the motion of the subpoena prior to its issuance; and (2) the court cannot allow a criminal defendant to circumvent the applicable provisions of CPL §§240.20 and 240.40 by the means of a subpoena.

CPLR §2307 provides that a defendant wishing to serve a judicial subpoena duces tecum on any governmental agency must afford the People at least one day's notice to object to the issuance of the subpoena on legitimate grounds. The purpose of this one-day period is to adequately afford the People and the NYPD an opportunity to make an application to prevent the inappropriate disclosure of any subpoenaed material. People v. Miranda (1982, Sup) 115 Misc 2d 533, 454 NYS2d 236, 455 NYS2d 247, app dismd (1984, 1st Dept) 102 App Div 2d 742, 477 NYS2d 291, app dismd (1984) 64 NY2d 702, 485 NYS2d 524, 474 NE2d 1192. However, the court finds that this contention is rendered moot by the very fact that the NYPD has taken advantage of a full and fair opportunity to oppose this subpoena duces tecum via the instant motion to quash.

The movant further contends that a defendant cannot invoke the court's subpoena power to obtain property whose procurement is regulated by the rules governing discovery.

A subpoena duces tecum is a process of a court (CPL §610.10 [2]; People v. Natal, 75 NY2d 379 [1990]) requiring that a witness "bring with him and produce specified physical evidence" (CPL §610.10 [3]; see also, CPLR §2301 ["subpoena duces tecum requires production of books, papers and other things"]). When such a subpoena is directed to any department, bureau or agency of the state, or of a political subdivision thereof, it may be issued on behalf of a defendant only upon order of a court (CPL §610.20 [3]; CPLR §2307).

While a defendant cannot use a subpoena as a means to circumvent the discovery statutes (see, Matter of Terry D., 81 NY2d 1042 [1993]) there are some items, such as the New York City Housing Authority video tapes that are sought here, that are in the possession of the New York City Police Department and certainly can be the subject of a valid subpoena. The discovery and subpoena articles of the Criminal Procedure Law each serve different purposes, and are governed by different standards. The discovery provisions under CPL Article 240 are meant to control the right of the defendant to ascertain certain information that is in the possession of the People. Some of this information must be disclosed within a specified period of time following the defendant's arraignment on an accusatory instrument (CPL §§240.20 [1] [a]-[k]; 240.80).

Other information must be disclosed at a pretrial hearing (CPL §240.44), and some other information must be disclosed before the People's opening statement at trial (CPL §240.45 [1]; People v. Rosario, 9 NY2d 286 [1961]).

By contrast, a subpoena enables the defendant to obtain evidence relevant to the issues that are material to the trial itself, despite the fact that the entity (such as the NYPD in this case) that possesses the material is not a party to a criminal action being prosecuted by the District Attorney. See, People v. Bagley, 279 AD2d 426, 426 (1st Dept 2001); see also, County Law §700 (1), (police reports are among the quintessential material required to be obtained, and disclosed, by the People at the statutorily mandated time.) See, also, Rosario, supra. (The People must disclose "[a]ny written or recorded statement," made by a witness called or intended to be called, "which relates to the subject matter of the witness's testimony".) CPL §§240.44 (1); 240.45 (1) (a). Also discoverable are other items routinely generated by the police including reports concerning physical examinations or scientific tests (CPL §240.20 [1] [c]); photographs (CPL §240.20 [1] [d]); and documents containing exculpatory information (CPL §240.20 [1] [h]; Brady v. Maryland, 373 U.S. 83 [1963]).

Although trial courts can neither broaden the scope of material subject to disclosure (People v. Colavito, 87 NY2d 423 [1996]), nor require that such material be provided earlier than statutorily mandated (Matter of Catterson v. Rohl, 202 AD2d 420 [2d Dept 1994] [court may not order that Rosario material be provided prior to trial]; Matter of Hynes v. Cirigliano, 180 AD2d 659 [2d Dept 1992] [no right to discovery prior to indictment]), a defendant "cannot use the procedural mechanism of a subpoena duces tecum to expand the discovery available under existing law" (Matter of Terry D., supra).

A defendant typically seeks to review police reports in order to find out whether impeachment materials, or leads to potential defense evidence, exist. But a defense subpoena duces tecum may not properly be used merely as a discovery tool "to ascertain the existence of evidence" (Terry D., supra). Rather, its proper function is to enable the defendant to obtain actual evidence that he hopes to use to challenge the People's case at trial (see id.; Matter of Constantine v. Leto, 157 AD2d 376 [3d Dept 1990] ["purpose is to compel the production of specific documents that are relevant and material to facts at issue in a pending judicial proceeding". Accordingly, since routine police reports are generally subject to discovery, the defense may not obtain them by means of subpoena, absent the proffer of "a factual predicate to support the contention that the documents sought in the subpoena will bear relevant and exculpatory evidence" (People v. Bagley, 279 AD2d 426, 426 (1st Dept 2001).

But in this case, defendant Ray Duran is not seeking to subpoena routine police reports created in connection with the investigation of the case. Instead, defendant Duran is seeking to obtain surveillance tapes depicting the very incident giving rise to the criminal charges in this case. These police records are properly subject to subpoena because, here, the defendant established that the solicited data is "relevant and material to the determination of guilt or innocence," and not sought solely in the speculative hope of finding possible "impeachment of witnesses' general credibility" (People v. Gissendanner, 48 NY2d 543 [1979]).

The surveillance tapes at issue in the instant matter would provide a visual account of the actual events alleged to constitute the crimes charged against the defendant in this case. Hence, they are relevant and material to the defendant's guilt or innocence, and therefore "the quest for [their] contents is not merely a desperate grasping at a straw" (Gissendanner, supra at 550).

CONCLUSION

This court finds that this subpoena in question is not being used in "an attempt to conduct a fishing expedition" (Gissendanner, supra at 547). The accusatory information here alleges that defendant Ray Duran engaged in the charged conduct "at about 12:00 p.m.". This subpoena seeks only those tapes portraying events during that same afternoon, at a relevant, time and place: the lobby and 5th floor hallway of "452 Marcy Avenue, Brooklyn, New York 11206 on October 27, 2010 between the hours of 1:00 pm-4:00 p.m." The subpoena also seeks any visitor sign-in sheet that may have existed for the building on that date. The sign-in log, while it will not provide any statements made by any particular people or witnesses, is likely to show the identity of anyone who entered the building at the time in question-also a relevant issue in this case.

Finally, the tapes and visitor's log are not "otherwise procurable reasonably in advance of trial by exercise of due diligence" (United States v. Nixon, 418 U.S. 683 [1974]; see also Constantine, supra at 379 ["material exculpatory evidence un-available from other sources"]). That is because first, since they contain no statements of a witness, these video tapes are not Rosario material. And second, unless the People intend to introduce them at trial, they are not discoverable under CPL §240.20 (1) (g) (tapes or other electronic recordings).

Thus, inasmuch as these surveillance tapes and visitors logs comprise specific evidence relevant and material to his guilt or innocence in this case, defendant is entitled to obtain them by this subpoena duces tecum.

Accordingly, the motion to quash must be denied.

ORDER

The New York Police Department is hereby directed to comply with the subpoena and to provide the materials enumerated in the subpoena no later than Monday, April 18, 2011. The NYPD is further directed to provide this court with an affidavit of compliance with this order no later than Friday, April 22, 2011.

The foregoing is the decision and the order of the court.

Defendant's Crimes Do Not Qualify Him Under Rockefeller Drug Laws

Brian Perskin — Mon, 23 May 2011 15:15:00 GMT

The People of the State of New York, Plaintiff v. EM, Defendant, 4384-1998

Justice Dominic R. Massaro

Decided: May 17, 2011

DECISION and ORDER

Pursuant to CPL §160.58, Defendant EM moves for an order conditionally sealing his 1999 conviction for criminal possession of a controlled substance in the second degree (see, Penal Law §220.18). Defendant argues that, while receiving a certificate of civil disabilities relief, he has been prevented from achieving career goals and full community membership because of the conviction. In this regard, Defendant says conditional sealing is a "second chance" for him as was intended by our Legislature when enacting the "Rockefeller Drug Law" reforms.

The District Attorney opposes relief because Defendant is not eligible for relief based upon the magnitude of the crime to which he pled guilty and because his sentence did not involve a drug treatment alternative to prison. Defendant submitted no documentation of successfully completing a drug program or similar program and presented no evidence that he was addicted when he committed the crime.

Movant's Position

Movant pled guilty to criminal possession of a controlled substance before this Court (Skloot-Bamberger, J.) in 1999 (Exhibit A) and was sentenced to three years and nine months imprisonment (Exhibit B)¹. Subsequently, Defendant says he participated in a shock incarceration program at Lakeview Shock Incarceration Facility in Chautauqua County and subsequently was released to parole supervision on November 18, 1999 (Exhibit C). ² Defendant appealed his conviction but withdrew that appeal before the Appellate Division's decided it (see, People v. Modesto, 269 AD2d 883 [1st Dept. 2000]).

As a parole condition, Defendant agreed, among other things, to substance abuse testing (see, Exhibit C). He claims he completed the Partnership for a Drug Free America's six months outpatient drug treatment program. ³ His parole supervision ended on February 10, 2003 allegedly followed by a certificate of relief from civil disabilities.

In support of relief, Defendant's counsel recites a litany of aviation training and licenses obtained since release (see, Exhibit D). While Defendant achieved these goals, counsel claims his client was hampered in obtaining professional employment because of the narcotics conviction. Counsel argues that conditional sealing will enhance "public safety" presumably because the public will be served by his client's reentry to the workforce as a pilot.

In summary, counsel argues that Defendant's conviction is eligible for conditional sealing because it is an offense defined in Penal Law Article 220⁴ as specified in CPL §160.58(2). He was discharged from parole supervision. Finally, upon release to parole supervision, Defendant successfully completed a mandatory six months outpatient drug treatment program, that is, the Partnership for a Drug Free America program. Finally, sealing Defendant's sole criminal conviction will enhance public safety by allowing him to successfully reintergrate into the community. In addition, Defendant asks the court to consider the fact that while heroin was involved, Defendant's role was in essence only as a bodyguard for his brothers who were the chief participants in the sale. At the time of the crime, he was immature and under the influence of his siblings. Now he has matured and realizes his mistake.

People's Opposition

The District Attorney opposes Defendant's relief, arguing he is ineligible for conditional sealing because he did not complete a judicially sanctioned drug treatment program while incarcerated. Further, the District Attorney says that the crime for which he plead guilty does not qualify for judicial diversion or other drug treatment alternative to prison. In this regard, "shock incarceration" is not a judicial diversion program referred to in CPL §160.58, nor is it a drug treatment plan. Defendant failed to provide documentation substantiating that he completed a judicial diversion program or a drug treatment program. Therefore, Defendant's sentence does not qualify as a judicially sanctioned drug treatment program and is not eligible for conditional sealing.

Likewise, the facts surrounding Defendant's application do not merit sealing. Most critical, the crime to which Defendant plead guilty is a Class A felony indicating that the weight involved exceeds the casual user targeted by the Rockefeller Drug Reform Act of 2009. The reform was not intended to reach persons such as Defendant who are not addicted but instead profited from others' addictions.

Defendant does not fall into the category of persons protected by the statute because of the sales volume involved in his crime. Further, he presented no evidence that he was an addict, that he is committed to a drug free life style, or continues to be involved in any sobriety program. Because Defendant is not an addict, he is not the intended target of the drug law reform.

In summary, the District Attorney position is that Defendant is not entitled to relief because Defendant has not been precluded from gainful employment, nor is he prevented from living a productive life.

Legal Discussion

CPL §160.58, as enacted in 2009, provides that the Court that sentenced a defendant to a judicially sanctioned drug treatment program may, on its own motion or upon defendant's motion, order that all official records and papers relating to the arrest, prosecution and conviction which resulted in Defendant's participation in the judicially sanctioned drug treatment program be conditionally sealed.

Conditional sealing is a narrowly tailored procedure enacted to provide a meaningful second chance for individuals who have a proven commitment to rehabilitation as shown by factors such as a successful completion of a judicially sanctioned drug treatment program. Our Legislature enacted CPL §160.58 by the Laws of 2009, ch. 56, §3 (Part AAA), effective June 6, 2009. However, as of this date, the Court finds no cases interpreting the instant statute.⁵

In making a determination under CPL §160.58, the statute directs the Court to consider "any relevant factors, including but not limited to: (i) the circumstances and seriousness of the offense or offenses that resulted in the conviction or convictions; (ii) the character of the defendant, including his or her completion of the judicially sanctioned treatment program as described in subdivision one of this section;⁶ (iii) the defendant's criminal history; and (iv) impact of sealing the defendant's records upon his or her rehabilitation and his or her successful and productive reentry and reintegration into society, and on public safety" (see, CPL §160.58[3]).

Considering these factors, Defendant's motion is denied. Defendant failed to present adequate evidence supporting sealing the record herein.⁷ Upon the evidence presented, the Court cannot find that the prerequisites of CPL §160.58 are met. In particular, the record fails to show that the trial court sentenced Defendant to a judicially sanctioned drug treatment program (see, Exhibit B). Likewise, the record lacks proof of adverse effect upon Defendant's employment opportunities. Significantly, no copy of the certificate of relief from civil disabilities is included and no copy of the relevant indictment and judgment of conviction is included.

This bench is not the bench that presided at the original proceedings and, therefore, cannot on its own, verify the conditions required in CPL §160.58. The Court is not required to retrieve from the Clerk papers filed previously even if this bench were the bench that originally heard the case. It remains the moving party's responsibility to assemble complete papers which document the procedural history of an application and provide a proper foundation for the relief requested. The burden created by an incomplete record seriously hinders the Court's ability to do justice in this matter. Further, the failure to provide post release documents, such as the certificate of civil disabilities relief, must be held against Defendant.

With this in mind, the Court finds that Defendant failed his burden. Defendant failed to convince that his conviction, which involved the sale of heroin committed while he was not an addict, deserves relief. Defendant failed to present proof of his character independent of business training. All these factors detract from the prayed for relief. Further, Defendant failed to convince the Court to use its discretion to permit the requested relief for a serious felony. The Court agrees with the District Attorney that Defendant's current circumstances are a result of his own conduct.

The Court has not invoked the authority of CPL §160.58(3) to hold a hearing on this application because neither party requested such hearing. Were the Court to consider such an alternative, the present record is insufficient to justify a CPL §160.58(3) hearing.

BASED UPON THE FOREGOING,⁸ it is

ORDERED that Defendant EM's motion for an order conditionally sealing the record of his 1999 conviction for criminal possession of a controlled substance in the second degree is DENIED.

The foregoing constitutes the Decision and Order of this Court.

1. Defendant submitted copies of his plea and sentencing transcripts (Exhibit A and B).

2. The copy of the Certificate of Release to Parole Supervision (Exhibit C) is illegible in part.

3. Defendant failed to submit his certificate of relief from civil disabilities or adequate proof he successfully completed the drug free program.

4. Criminal Possession of a Controlled Substance in the second degree is a class A-II felony (Penal Law §220.18).

5. For a discussion of the instant statute in the context of prior reform, see generally, Mancuso, Comment: Resentencing after the "Fall" of Rockefeller: the Failure of the Drug Law Reform Acts of 2004 and 2005 to Remedy the Injustices of New York's Rockefeller Drug Laws and the Compromise of 2009, 73 Alb. L. Rev. 1535, 1574 [2010]).

6. CPL §160.58 (1) provides, in relevant part, that "(a) defendant convicted of any offense defined in article two hundred twenty…. of the penal law…. who has successfully completed a judicial diversion program…or one of the programs heretofore known as drug treatment alternative to prison or another judicially sanctioned drug treatment program of similar duration, requirements and level of supervision, and has completed the sentence imposed for the offense or offenses, is eligible to have such offense of offenses sealed pursuant to this section."

7. Defendant's documents submitted include: guilty plea transcript (Exhibit A); sentence transcript (Exhibit B); certificate of release to parole supervision (Exhibit C); various FAA certificates, licenses, and records of professional training. No copy of the indictment, judgment of conviction, or certificate of civil disabilities relief, were submitted. No copy of Defendant's criminal record was included although the District Attorney concedes the instant conviction is Defendant's first felony conviction and only criminal conviction in this state (People's Response, p.3).

8. In deciding this motion, the Court read Defendant's notice of motion for conditional sealing pursuant to CPL §160.58; Defendant's Affidavit in Support of Motion for Conditional Sealing; Defendant's Memorandum of Law with attached exhibits; People Response to Defendant's Motion for Conditional Sealing with exhibits.

Judges Dismiss Accusatory Instrument in the Interest of Justice

Brian Perskin — Thu, 19 May 2011 16:04:00 GMT

The People of the State of New York, Respondent v. PB, Appellant, 2008-189 S CR

Before: Tanenbaum, J.P., Molia and Iannacci, JJ.

Decided May 9, 2011

Appeal from a judgment of the Justice Court of the Town of Southold, Suffolk County (Rudolph H. Bruer, J.), rendered December 14, 2007. The judgment convicted defendant, upon a jury verdict, of criminal trespass in the second degree. The appeal from the judgment of conviction brings up for review, among other things, the denial (Rudolph H. Bruer, J.), without a hearing, of the branches of defendant's omnibus motion seeking to suppress evidence and to compel discovery. By decision and order dated December 3, 2009, this court remitted the matter to the Justice Court for a determination on the merits, following such hearings as might be warranted, of those branches of defendant's omnibus motion seeking the suppression of evidence, and for a report, and the appeal was held in abeyance in the interim (25 Misc 3d 141[A], 2009 NY Slip Op 52463[U]). The Justice Court (Rudolph H. Bruer, J.) has now filed its report, setting forth, among other things, its denial, following a hearing, of those branches of defendant's motion seeking the suppression of evidence.

ORDERED that the judgment of conviction is reversed, on the law, the order denying defendant's motion to suppress evidence is vacated, defendant's motion to suppress evidence is granted to the extent set forth in this decision, and, as a matter of discretion in the interest of justice, the accusatory instrument is dismissed.

Defendant was charged with criminal trespass in the second degree (Penal Law §140.15) on the theory that he had unlawfully entered the house of his ex-wife and her husband. He was also charged with assault in the third degree (Penal Law §120.00 [1]) for allegedly assaulting his ex-wife while inside the house. A defense theory at the jury trial was that defendant had been justified in entering the house (see Penal Law §35.05 [2]) because he had heard his daughter screaming inside and feared for her safety. Defendant was acquitted of the assault charge, but convicted of the criminal trespass charge.

In People v. PB (25 Misc 3d 141[A], 2009 NY Slip Op 52463[U]), we concluded, among other things, that the Justice Court erred in summarily denying the suppression branches of defendant's omnibus motion on the ground that the motion was untimely. We held the appeal in abeyance and remitted the matter to the Justice Court to, among other things, hear and report on the branch of defendant's omnibus motion that was to suppress statements on the grounds that they were obtained in violation of Miranda v. Arizona (384 US 436 [1966]) and defendant's right to counsel under the New York State Constitution (NY Const, art I, §6). On remittitur, the Justice Court decided, after a suppression hearing, that the suppression of defendant's statements was not warranted. We now reverse the judgment of conviction and dismiss the accusatory instrument.

The statements at issue are contained in a DVD, introduced into evidence at trial, of a conversation that took place between defendant and a police officer while defendant was sitting handcuffed in the back of the police car after the incident in question. The People correctly concede that defendant was in custody at that time (see e.g. People v. Weekes, 52 AD3d 1032, 1034 [2008]). According to the DVD, and the police testimony at the suppression hearing held by the Justice Court following this court's remittal, Miranda warnings were at no point administered.

The DVD reveals that, in the first phase of the conversation, defendant, on his own initiative, asserted that his ex-wife had "been tormenting and torturing" their child. This was a spontaneous statement not requiring suppression under Miranda (see People v. Lynes, 49 NY2d 286, 293-295 [1980]; People v. Norman, 77 AD3d 497, 498 [2010]). In the next phase of the conversation, defendant first informed the police officer that he had "called [his] attorney already." From this point on, as a New York State constitutional matter (NY Const, art I, §6), defendant's right to counsel had "attach[ed] indelibly" (People v. McLean, 15 NY3d 117, 120 [2010] [internal quotation marks and citation omitted]), and he could not be interrogated in his attorney's absence (see id.; People v. Burdo, 91 NY2d 146, 149 [1997]). Defendant then asked the police officer whether the officer thought that the incident would be treated as "domestic," and responded with dismay when the officer said, "Right now it's a domestic." The comments made by defendant during this second phase of the conversation were also spontaneous, rather than the product of interrogation, and were therefore not subject to suppression on either Miranda (see People v. Lynes, 49 NY2d at 293-295; People v. Norman, 77 AD3d at 498) or right-to-counsel (see People v. Rivers, 56 NY2d 476, 479 [1982]; People v. Cunningham, 49 NY2d 203, 210, n 2 [1980]) grounds.

The next portion of the conversation began with the police officer's responding to defendant's expression of dismay by saying, in part, "We'll see what we can do." The exchange continued with the officer's asking defendant, "You and your wife have been split up for 10 years?"; defendant's answering, "Yeah, for 10 years," and the officer's asking, "[W]hat's the story with [your daughter]?" An extended conversation ensued about defendant's relationship with his wife and daughter. Defendant's statements after the police officer posed these questions were no longer spontaneous, but, rather, were the product of interrogation or its "functional equivalent" (Rhode Island v. Innis, 446 US 291, 301 [1980]; see People v. Lombardi, 97 AD2d 278 [1983]; see also People v. Lanahan, 55 NY2d 711 [1981]; cf. People v. Rivers, 56 NY2d at 479-480; People v. Lynes, 49 NY2d at 293-295; People v. Ziegler, 78 AD3d 545 [2010]; People v. Webb, 224 AD2d 464, 465 [1996]), and, as such, should have been suppressed on both Miranda (see Miranda v. Arizona, 384 US 436) and New York constitutional right-to-counsel (see People v. McLean, 15 NY3d 117) grounds.

The proof of defendant's guilt was not "overwhelming" (People v. Crimmins, 36 NY2d 230, 241 [1975]), in that the proof that his entry into the premises was not justified was very weak. Consequently, the erroneous admission of the statements cannot be deemed harmless, and reversal of defendant's conviction is warranted (see id.). Moreover, in light of the weakness of the proof of guilt, rather than order a new trial, we dismiss the accusatory instrument, as a matter of discretion in the interest of justice (see generally People v. Kidd, 76 AD2d 665 [1980]; People v. Canner, 2002 NY Slip Op 50527[U] [App Term, 9th & 10th Jud Dists 2002]).

In light of our disposition of the case, we reach no other issues.

Tanenbaum, J.P., Molia and Iannacci, JJ., concur

People, v. PB, 2008-189 S CR, NYLJ 1202493977783, at *1 (App. Tm., 2nd Decided May 9, 2011)

People Charged with Over Ninety Days in Criminal Proceedings

Brian Perskin — Mon, 16 May 2011 15:43:00 GMT

The People of the State of New York, Plaintiff v. Neil Prisco, Defendant, 2010QN035024

Judge Elisa S. Koenderman

Decided: April 20, 2011

DECISION/ ORDER

The defendant, Neil Prisco, is charged with Criminal Contempt in the Second Degree, Penal Law ["PL"] §215.50(3) and two counts of Aggravated Harassment in the Second Degree, PL §§240.30(1)(a) & (1)(b). The defendant moves to dismiss the criminal proceeding against him on the ground that he has been denied his right to a speedy trial pursuant to Criminal Procedure Law ["CPL"] §30.30(1)(b), alleging that more than ninety days have elapsed since his arraignment. Because the Court calculates that more than ninety (90) days are chargeable to the People, the defendant's motion to dismiss is granted.

Pursuant to CPL §30.30(1)(b), the People must be ready for trial within ninety (90) days of commencement of a criminal action charging a defendant with a misdemeanor punishable by a sentence of imprisonment of more than three months. Although a criminal action commences when the accusatory instrument is filed, counting for speedy trial purposes starts the following day (see People v. Stiles, 70 NY2d 765 [1987]).

Whether the People have satisfied their obligation to be ready under CPL_§ 30.30 is generally determined by calculating the time between the filing of the first accusatory instrument and the People's declaration of readiness, then subtracting statutorily excludable periods of delay and finally adding any additional delays that transpire after readiness has been declared when such delays are attributable to the People and are ineligible for any exclusions under the statute (see People v. Cortes, 80 NY2d 201, 208 [1992]).

For the People to be "ready for trial" under CPL§30.30, they must meet two requirements. First, they must communicate their readiness either on the record in open court or by a written notice simultaneously sent to defense counsel and filed with the court clerk (see People v. Kendzia, 64 NY2d 331, 337 [1985]). Second, the People must declare their readiness only when they are presently ready to proceed to trial (see id.).

The People are presently ready to proceed to trial when they "have done all that is required of them to bring the case to a point where it may be tried" (People v. England, 84 NY2d 1, 4 [1994]). Trial readiness is established where "the People have a valid accusatory instrument upon which the defendant may be brought to trial, where the People have complied with their obligation to produce for trial a defendant in their custody and where the People have complied with all pending proceedings required to be decided before trial can commence" (People v. Caussade, 162 AD2d 4, 8 [2d Dept 1990] [internal citations omitted]).

Once the People have declared their readiness for trial they have satisfied their obligation under the statute (see People v. Giordano, 56 NY2d 524 [1982]) and are not chargeable with any delay in proceeding due to court congestion (see People v. Chavis, 91 NY2d 500, 502 [1998]). The People are chargeable only with delay they have caused which "directly implicates [their] ability to proceed with trial" (Cortes, 80 NY2d at 210).

Delays occasioned by adjournments which are requested or consented to by the defendant are not chargeable to the People (see People v. Worley, 66 NY2d 523, 525 [1985]; People v. Kopciowski, 68 NY2d 615, 617 [1986]). Specifically, the period of delay resulting from a defendant's pretrial motion and the time during which it is under consideration by the court is excludable as having been "caused by the defendant for his own benefit" (Worley, 66 NY2d at 527; see CPL §30.30[4][a]).

On June 9, 2010, the defendant was arraigned on the misdemeanor complaint and the case was adjourned to July 7, 2010 for the People to file and serve a supporting deposition to convert the complaint to an information. The People concede that there are twenty-seven (27) days chargeable to them for this adjournment.

On July 7, 2010, the People filed and served a supporting deposition from the complainant. Nevertheless, the court declined to deem the complaint an information, ruling that the complaint was defective because it was jurisdictionally and facially insufficient. The court adjourned the matter to July 29, 2010 for the People to file a superceding information. Since the People did not have valid accusatory instrument upon which they could try the defendant (see People v. Colon, 59 NY2d 921 [1983]; see also Caussade, 162 AD2d at 8), there are twenty-two (22) days chargeable to the People for this adjournment. On July 29, 2010, the People filed and served an amended supporting deposition from the complainant and announced ready for trial. The court set a motion schedule at defense counsel's request and adjourned the matter to September 24, 2010 for decision. Off-calendar on August 18, 2010, the defendant filed a motion to dismiss for facial insufficiency. On September 24, 2010, the People filed and served their affirmation in opposition to the defendant's motion and the court again adjourned the matter for decision to October 29, 2010. On October 29, 2010, the court adjourned the matter for decision to November 18, 2010. These adjournments are excludable as a period of delay resulting from the defendant's pretrial motion and the time during which it was under consideration by the court (see CPL§30.30[4][a]; see also Worley, 66 NY2d at 525). There are zero (0) days chargeable to the People for this period.

On November 18, 2010, the court rendered a written decision and order finding that the complaint was defective because it was jurisdictionally and facially insufficient. Nevertheless, the court denied the defendant's motion to dismiss and granted the People leave to file a superceding information. The court then adjourned the case to January 11, 2011 for the People to comply with its decision and order.

The adjournment following a decision on a pretrial motion generally is not chargeable to the People. The rationale underlying the exclusion of this period is that after the court renders a decision on a pretrial motion the People are entitled to a reasonable time to prepare for hearings and/or trial, and that the delay therefore results from motion practice (see People v. Wells, 16 AD3d 174 [1st Dept 2005] [adjournment properly excluded as a reasonable time for People to prepare for hearings ordered by the court on pretrial suppression motion ]; People v. Reed, 19 AD3d 312, 314 [1st Dept 2005]; People v. Forbes, 7 AD3d 473, 474 [1st Dept 2004]; People v. Fleming, 13 AD3d 102 [1st Dept 2004] [adjournment after court decided defendant's omnibus motion excludable since People were entitled to a reasonable time to prepare for trial]; People v. Rene, 292 AD2d 302 [1st Dept 2002] [adjournment properly excluded under CPL §30.30(4)(a) as a reasonable period of time for the People to prepare for the newly ordered hearing]; People v. Hayes, 291 AD2d 334, 334-335 [1st Dept 2002] [adjournment to prepare for trial after denial of speedy trial motion was reasonable]; People v. Roebuck, 279 AD2d 350, 351 [1st Dept 2001]; People v. Ailes, 268 AD2d 370 [1st Dept 2000]; People v. Diaz, 275 AD2d 652, 653 [1st Dept 2000]; People v. Moolenaar, 262 AD2d 60 [1st Dept 1999] [adjournment for People to prepare for suppression hearings after decision on omnibus motion was a reasonable period of delay resulting from motion practice]; People v. David, 253 AD2d 642, 645 [1st Dept 1998] [adjournment following court's decision on motion excludable as a reasonable time for People to prepare for trial]; People v. Heine, 238 AD2d 212 [1st Dept 1997] [adjournment properly excluded as a reasonable amount of time to prepare the case following motion practice]; People v. Roberts 236 AD2d 233, 233-234 [1st Dept 1997]; People v. Chambers, 226 AD2d 284 [1st Dept 1996]; People v. Greene, 223 AD2d 474 [1st Dept 1996] [adjournment after court rendered decision on omnibus motion excludable since prosecution could not be expected to be ready for hearing immediately]; People v. Green, 90 AD2d 705 [1st Dept1982] [adjournment for the People to prepare for pretrial suppression hearing reasonable since the People could "hardly be expected to prepare for a hearing before they were aware that the court was ordering one"]; People v. Hairston, 242 AD2d 466 [1st Dept 1997]; People v. Douglas, 156 AD2d 173 [1st Dept 1989] [adjournment requested by People after denial of speedy trial motion reasonable and not chargeable to them]; accord People v. Osorio, 39 AD3d 400, 401 [1st Dept 2007] [period of delay following reversal order excludable since "the People could not be expected to be ready instantly and were entitled to a reasonable period of time to contact witnesses and prepare for trial"]).

Indeed, where the court has ordered a hearing on a defendant's pretrial suppression motion, the court has determined that it cannot decide the motion until it holds a hearing and makes findings of fact (see People v. Taylor, 16 Misc 3d 339, 402-403 [Crim Ct, NY County 2007]). Because the motion therefore remains "under consideration by the court" until the court renders a decision after the hearing, the adjournment for a hearing ordered on a pretrial suppression motion is expressly excludable under the statute (see CPL §30.30[4][a]; Taylor, 16 Misc 3d at 402).

In contrast, the defendant's motion to dismiss in the instant case was plainly decided against the People on November 18, 2010 when the court ruled that the complaint was defective. The ensuing adjournment therefore did not result from motion practice but from the fact that the People did not have a jurisdictionally and facially sufficient information. Since the exclusion of a reasonable period of delay following motion practice for the People to "contact witnesses and prepare for trial" (Osorio, 39 AD2d at 401) presupposes that the People have a valid accusatory instrument upon which to try the defendant, where, as here, the People have no such instrument, there is no justification for such an adjournment. An adjournment to prepare for trial where the People have no valid accusatory instrument upon which to try the defendant is fictitious. To exclude an adjournment following a decision finding the complaint defective serves no purpose other than to afford the People extra time to be ready to which they are not entitled under the statute.

Furthermore, had the court dismissed the complaint (see CPL §170.30[1][a]) rather than granted the People leave to supercede it, there is no question that the time would be chargeable to the People until they declared their readiness upon a valid accusatory instrument refiled against the defendant (see People v. Nuccio, 78 NY2d 102 [1991] [no statutory bar to reprosecution for nonfelony charges which had been dismissed for facial insufficiency]). Simply because the court did not exercise its statutory authority to dismiss the complaint is no reason for a different rule to apply. Regardless of the court's action, the People had no valid accusatory instrument upon which to try the defendant and therefore could not be ready for trial. Accordingly, there are fifty-four (54) days chargeable to the People for the adjournment from November 18, 2010 to January 11, 2011 (see Colon, 59 NY2d at 921; see also Caussade, 162 AD2d at 8).

On January 11, 2011, the People answered not ready and requested additional time to file a superceding information since they were awaiting receipt of a certified copy of the underlying order of protection from family court. The court ordered the People to file a certificate of readiness off-calendar and adjourned the matter to February 17, 2011. On January 31, 2011, the People filed and served a superceding information and certificate of readiness. There are twenty (20) days chargeable to the People for this period.

The defendant filed and served the instant motion to dismiss pursuant to CPL §30.30 off-calendar on February 10, 2011. On February 17, 2011, the defendant was arraigned on the superceding information. The court directed the People to respond to the defendant's motion and adjourned the matter to March 24, 2011 for decision. On March 24, 2011, the People filed and served their affirmation in opposition to the defendant's motion and the court again adjourned the matter for decision to April 20, 2011. These adjournments are excludable as a period of delay resulting from the defendant's pretrial motion and the time during which it was under consideration by the Court (see CPL §30.30[4][a]; see also Worley, 66 NY2d at 525). There are zero (0) days chargeable to the People for this period.

Pursuant to the above analysis, the Court finds that one hundred twenty-three (123) days are chargeable to the People to date. Accordingly, because more than ninety days have elapsed since the defendant's arraignment, the defendant's motion to dismiss pursuant to CPL_ §30.30(1)(b) is granted.

This constitutes the decision and order of the Court.

People v. Prisco, 2010QN035024, NYLJ 1202493639927, at *1 (Crim., QU, Decided April 20, 2011)

White-Collar Crimes Dismissed

Brian Perskin — Thu, 12 May 2011 17:12:00 GMT

The People of the State of New York, Plaintiff v. JSC, Inc, JS, SM, CS, JM, MM, PO, AF, CR, ST, JMM, SC, MT, DDC, JR, MME, HM, Defendants, 2394/2009

Justice Marcy L. Kahn

Decided: May 2, 2011

DECISION AND ORDER ON MOTIONS TO DISMISS INDICTMENT (OMNIBUS)

(Edited and portions of opinion omitted for publication)

(D2, DPO1, DJR1, DJM1, DCS1, DMT1)¹

Defendants, including sixteen individuals who are owners or employees of JSC (or the firm), a securities broker-dealer firm, and the firm itself, have been charged in a 94-count indictment with enterprise corruption, securities fraud, larceny and other crimes committed against the firm's customers based upon allegations that they systematically engaged in deceptive and fraudulent trading in small cap securities with the goal and result of artificially increasing firm profits to the detriment of the firm's clients. Specifically, defendants have been charged with enterprise corruption (PL §460.20)(the Organized Crime Control Act [L.1986, ch. 516, §2, codified as Penal L. art. 460][OCCA] count)(138 criminal acts); securities fraud under the Martin Act (General Business Law §352-c[5],[6])(38 counts); criminal possession of stolen property in the second (PL §165.52), third (PL §165.50) and fourth (PL §165.45[1]) degrees (26 counts); grand larceny in the second (PL §155.40[1]) and third (PL §155.40[1]) degrees (23 counts); and falsifying business records in the first degree (PL §175.10)(six counts)(collectively, the non-OCCA counts). It is alleged that through a corrupt scheme involving, inter alia, market manipulations, solicitation of new accounts, falsification of documents related to those accounts in furtherance of manipulative practices, failures to properly disclose aspects of stock trades to customers and the wrongful obtaining of unauthorized commissions on the trading of shares in the firm's account, defendants engaged in a pattern of criminal activity intended to maximize profits for themselves unlawfully at the expense of their customers.

Defendants now jointly move, inter alia, for the following relief: inspection and release of the grand jury minutes pursuant to CPL §210.30(2),(3); dismissal of the indictment as defective (CPL §§210.20[1][a], 210.25[2], [3]), on the grounds that this court lacks geographic jurisdiction as to certain of the counts against defendants, that the enterprise corruption statute as applied in this case is unconstitutionally vague and denies defendants due process of law, that the state criminal charges contained within the indictment are preempted by federal law and that OCCA's pattern of criminal activity requirement is defectively pleaded in the enterprise corruption count; dismissal of the indictment on the ground that the grand jury proceedings were defective and the integrity of those proceedings was impaired (CPL §§210.20[1][c], 210.35[2],[3],[5]), in that, inter alia, the People introduced misleading evidence, engaged in improper use of expert testimony, gave improper instructions to the grand jury, used misleading summary charts, failed to offer exculpatory evidence, failed to give proper instructions to the grand jury on the use of a cooperating defendant's guilty plea, made impermissible use of hearsay before the grand jury and permitted the grand jury to vote on counts of the indictment without sufficient grand juror attendance; dismissal on the grounds of legal insufficiency of the indictment due to lack of corroboration of accomplice testimony, and of the counts of enterprise corruption and grand larceny on various grounds (CPL §210.20[1][b]); and dismissal of the enterprise corruption count in the interest of justice (CPL §210.40[2]).

Defendant Tripodi separately moves to dismiss all counts of the indictment pending against him in the interest of justice (CPL §§210.20[1][i]; 210.40[1]). Defendant Orthos, joined by his co-defendants, moves pursuant to CPL §210.25(1) to dismiss the grand larceny and securities fraud counts of the indictment as defective, for lack of sufficient specificity of the time periods involved, as required by due process and by CPL §200.50(6). In addition, defendant Micciola moves to preclude introduction at trial of any unnoticed statements made by him pursuant to CPL §710.30; defendants Tripodi and Micciola move for disclosure of exculpatory information under Brady v. Maryland, 373 US 82 (1963), and CPL §240.20; defendants Tripodi, Shapiro, Micciola and Rathgeber² move to preclude cross-examination at trial by means of any prior bad acts, or in the alternative, for a Sandoval (People v. Sandoval, 34 NY2d 371 [1974]) hearing; and defendants Micciola and Rathgeber move to preclude introduction of any prior uncharged crimes against them on the People's case in chief, or, alternatively, for a Ventimiglia (People v. Ventimiglia, 52 NY2d 350 [1981]) hearing.

At a pre-trial status conference held on March 25, 2011, this court issued a summary order setting forth the dispositions of the six motions before it. This decision and order explains and supplements that summary order.

For the reasons stated, the motion to inspect is granted; the motions to dismiss are denied, except as follows: Criminal Acts 58, 59, 113, 114 and 115 are dismissed as to all defendants, on quorum grounds, pursuant to CPL §§190.25(1), 210.20(1)(c) and 210.35(3); Criminal Act 14 and Count 12 are dismissed pursuant to CPL §210.20(1)(b) as to all defendants, as legally insufficient; as to defendant Craig Shapiro, Criminal Acts 71, 86 and 93 and Counts 56, 61, 67 and 82 are dismissed pursuant to CPL §210.20(1)(b), as legally insufficient; as to defendant John Moraitis, Criminal Acts 97, 124, 133 and 135 and Counts 52, 69 and 84 are dismissed pursuant to CPL §210.20(1)(b), as legally insufficient; as to defendant Massimo Martinucci, Criminal Act 131 and Counts 48, 82 and 90 are dismissed pursuant to CPL §210.20(1)(b), as legally insufficient; and Counts 59, 62, 65, 72, 87 and 88 are dismissed pursuant to CPL §§20.40, 210.20(1)(a) and 210.25(2) as to all defendants based upon lack of geographical jurisdiction. Other pretrial relief is determined as set forth in this opinion.

TABLE OF CONTENTS

I. FACTUAL AND PROCEDURAL BACKGROUND

A. The Investigation

B. The Indictment

II. MOTION TO INSPECT AND DISMISS

A. Evidence Before the Grand Jury

*B. Motion for Inspection and Release of the

Grand Jury Minutes

C. Dismissal for Defects in Indictment

1. Geographic Jurisdiction of Non-OCCA

Counts

2. Due Process Vagueness Challenge to

Application of the Enterprise Corruption Statute

3. Federal Preemption

4. Defective Pleading of OCCA Pattern of Criminal Activity

*5. Lack of Specificity and Notice

D. Defective Grand Jury Proceedings and Impaired

Integrity of Grand Jury Proceedings

*1. Misleading Evidence and Improper Use of Experts

2. Use of Summary Charts

*3. Failure to Offer Exculpatory Evidence

*4. Instructions on Cooperating Witnesses

*5. Hearsay

*6. Quorum Requirement

*7. Miscellaneous Defects

*8. Abuse of Discretion

E. Motion to Dismiss for Legal Insufficiency

*1. Use of Accomplice Testimony

2. Enterprise Corruption Count

3. Grand Larceny Counts

*4. Martin Act Counts

*5. Criminal Possession of Stolen Property Counts

*F. Dismissal of Enterprise Corruption Count in Interest of Justice

*1. Exercise of Prosecutorial Discretion

*2. Scienter

*3. Minor Participation

*G. Dismissal of Remaining Counts in Interest of Justice (Tripodi)

*III. MOTIONS FOR OTHER PRETRIAL RELIEF

*A. Motion to Preclude Statements

*B. Brady and Other Disclosures

*C. Sandoval Motions

*D. Molineux/Ventimiglia Applications

IV. CONCLUSION

* Omitted for purposes of publication.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. The Investigation

From 2005 to 2009, the Office of the New York County District Attorney (DANY) investigated allegations of criminal conduct at JSC, a broker-dealer firm that was headquartered in New York County with branch offices in Melville and Staten Island, New York and Old Bridge, New Jersey. On three separate occasions between December 2005 and December 2007, DANY investigators executed court-authorized search warrants at all four JSC offices and at storage facilities located in Staten Island, Brooklyn and New Jersey. In all, more than one thousand boxes of evidence were seized pursuant to the search warrants.

B. The Indictment

On May 20, 2009, the instant indictment was filed charging the seventeen defendants as set forth above. The indictment alleges that the individual defendants ran JSC as a criminal enterprise from January 2001 through December 2005, defrauding more than 800 clients of the firm in more than 5000 securities trades, resulting in the generation of more than $6,000,000 in illegal undisclosed commissions to the defendants. It is further alleged that through a corrupt scheme involving, inter alia, market manipulations, falsification of documents and failures to make required disclosures, defendants engaged in a pattern of criminal activity intended to maximize profits for themselves unlawfully at the expense of their customers. The indictment was obtained by the DANY³ and unsealed on May 19, 2009, following which the defendants were arraigned on it by this court.

II. MOTION TO INSPECT AND DISMISS

A. Evidence Before the Grand Jury

The evidence before the grand jury established that during the period between January 2001 and December 2005, JSC, a registered broker-dealer firm which specialized in making markets in small cap securities primarily in the biotechnology field, had its headquarters in Manhattan, with branch or satellite offices in Long Island, Staten Island and New Jersey. Defendants Joseph Sorbara and Steven Markowitz were the firm's principals (principal defendants), and supervised the firm's traders, including defendants Craig Shapiro, John Moraitis and Massimo Martinucci (trader defendants), as well as its brokers, including defendants Peter Orthos, Alan Ferraro, Charles Raspa, Scott Tierney, John Micciola, Steven Scarcella, Michael Tripodi, Douglas Costabile, James Rathgeber, Matthew Menies and Hajradin "Harry" Mucovic (broker defendants).

The evidence further demonstrated that during this period, defendants systematically engaged in a practice to promote the purchase and sale by firm clients of selected securities (scheme stocks) in which the firm made a market solely for the purpose of maximizing profits to themselves and without regard to the suitability of the investment for the clients' investment objectives or any disclosure that their true motivation for recommending the stock was to earn additional undisclosed profits from the trades. The trader defendants would inform the broker defendants that trading in a scheme stock was being planned for an upcoming date. The brokers would then solicit orders for trades in such stocks from their customers and would inform the traders of the advance commitments they had received from their customers for purchases or sales of shares of the particular scheme stock. The stocks would be largely illiquid securities of minimally capitalized companies which, for example, were awaiting, but had not yet received, approval of their pharmaceutical products for release from the federal Food and Drug Administration. The brokers would encourage their clients to purchase the stock, notwithstanding the absence of any positive information having been received about the company, and frequently in contravention of the customer's own stated investment objectives. Upon their receiving commitments from the brokers as to the number of shares the brokers' clients would purchase (or sell), the trader defendants would then acquire (or sell) shares of the scheme stock based upon that information, using carefully executed trading techniques to raise (or lower) and maintain the prices of the otherwise lightly traded scheme stocks artificially. The brokers, meanwhile, had obtained the trading orders from their clients but would delay their execution, for hours or days, until advised by the traders that they had successfully manipulated the price of the stock to a price which would maximize the defendants' income from the transactions while concomitantly producing a less advantageous price for the customer, in contravention of the broker's duty to attempt to obtain the best price execution for the customer on the trade. Upon receipt of that advice from the trader to do so, the broker would then immediately direct the virtually simultaneous execution of all of the trading orders he had obtained for the scheme stock over the preceding hours and days, completing each customer's purchase (or sale) of the scheme stock at a significantly less advantageous price to the customer than could have been achieved in the absence of the delay of the execution and ensuing market manipulation by the traders. After the flurry of the execution of these delayed trades, which often would exhaust JSC's inventory of the scheme stock, the price of the scheme stock would typically decline significantly, leaving the customer with heavy losses.

The scheme would essentially take one of two forms. The first type (block schemes) involved the firm acquiring a block of a scheme stock at a discounted price and then selling the shares to firm customers at the (higher) market price, never disclosing to the customers the lower price at which the firm acquired the stock and at which the customer, too, could have purchased it, nor that customers were purchasing their shares from JSC's firm inventory. The second type of scheme (spread schemes) involved the firm manipulating the price of the scheme stock by making timed purchases throughout the early part of the trading day ("walking up the stock"), sometimes by putting in a bid above any other bids for the stock, at the ask level, in an effort to drive up the price ("ripping out" the offer), and only executing the customers' buy orders later in the day, after the price had risen accordingly. In neither case would the customer be informed that she was not receiving the best possible execution price on the trade, nor the price at which she could have acquired the stock absent the scheme, and under neither scenario would the customer be informed that the primary, if not sole, reason for the trade was the incentive for the broker, trader and firm principals to receive the inflated commissions and excess profits so generated.

The compensation received by the broker defendants on trades in the scheme stocks consisted of two parts: first, the regular per-share mark-up (or mark-down) commission on the price of the stock, which was generally no greater than five percent of the share price, in accordance with industry guidelines, and which was regularly disclosed to the customer through the confirmation report received shortly after the execution of the transaction; and second, the receipt of a percentage of the trading profit for the firm (the "inside" commission, based upon the spread between the price at which the firm acquired the market maker stock and the price at which it sold the shares to its clients), which was generated by the trader defendants and a portion of which comprised their compensation, and which they shared with the broker defendants in the scheme stock trades, and which was never disclosed to the customers. The combination of the mark-up and inside, together characterized by the firm as the "gross credit," was the broker's compensation on the trade, and, similarly, was never disclosed to the client.

The grand jury heard evidence that in any transaction in which it is a market maker and assumes the risks of the acquisition and (uncertain) eventual sale of stock from its own inventory, a firm may legitimately capture the inside profit and charge its clients for the risk it has taken, with industry guidelines, and JSC's own internal policies, setting a cap of ten percent on such charges. The grand jury also received evidence that in the block and spread scheme stock transactions at JSC, the firm took no risk, as it had received commitments for the purchase of its stock inventory holdings at a higher price than the firm's own acquisition cost.

The grand jury heard testimony that the defendants established various strategies for the concealment of their improper remuneration in these transactions from effective review by customers, regulatory agencies and even the firm's own compliance department. These strategies included falsifying and misrepresenting customer authorizations to reflect a desire for speculative investments and the granting of discretionary trading authority (not held orders) where none existed; misrepresenting the time at which the trading order had been received from the client; cancelling commissions exceeding the ten percent guideline (cancel and correct) in accordance with the direction of JSC's compliance department and in order to evade regulators' scrutiny, but then immediately returning the amounts to the firm's trading account and redistributing them to be paid to the defendants in connection with future, unrelated market maker transactions; and mischaracterizing such resulting additional payments, for example, as credits against the broker's expenses.

***⁴

C. Dismissal for Defects in Indictment

1. Geographic Jurisdiction of Non-OCCA Counts

a. Parties' Contentions

Defendants argue that to the extent that the non-OCCA counts charged in the indictment relate to conduct which allegedly occurred outside of New York County, they must be dismissed for lack of geographic jurisdiction under CPL §20.40. (CPL §§210.20[1][a], 210.25[2],[3]). Specifically, this argument applies to those defendants who worked outside of New York County, including: Mucovic (Staten Island); Tripodi, Micciola, Scarcella, Raspa and Tierney (New Jersey); and Martinucci and Rathgeber (Long Island) (collectively, the out-of-county defendants).

b. Discussion

In order to establish geographical jurisdiction to prosecute an offense, the evidence must satisfy the terms of CPL §20.40(1)(a), which provides, in pertinent part, that:

[a] person may be convicted in an appropriate criminal court of a particular county, of an offense...committed either by his own conduct or by the conduct of another for which he is legally accountable...when...[c]onduct occurred within such county sufficient to establish...an element of such offense....

(CPL §20.40[1][a][emphasis added]). Thus, CPL §20.40(1)(a) makes clear that jurisdiction will lie in a particular county if any the conduct of a defendant or a defendant's accomplice in that county establishes an element of the offense to be prosecuted.⁵

With respect to the grand larceny counts, a person commits larceny "when, with intent to deprive another of property, or to appropriate same to himself or to a third person, he wrongfully takes, obtains or withholds such property from an owner thereof." (PL §155.05). Here, the evidence before the grand jury established that accomplices in JSC's New York office acted in concert with the out-of-county defendants in obtaining property from their clients in the form of profits from trades by calculating and distributing those profits from the New York office. Thus, the jurisdictional requirements of CPL §20.40(1)(a) are satisfied as to the grand larceny counts against the out-of-county defendants.

With respect to the GBL §352-c(5) counts, the pertinent elements of the offense are that "[a]ny person, partnership, corporation, company...or any agent or employee thereof who intentionally engages in any scheme constituting a systematic ongoing course of conduct with intent to defraud ten or more persons...and so obtains property from one or more of such persons while engaged in inducing or promoting the...sale...or purchase of any securities...." is guilty of the crime. (GBL §352-c[5]). Here, the evidence showed that the out-of-county defendants acted in concert with their New York County-based accomplices on an ongoing basis in intentionally obtaining property from JSC customers as described above through the execution of orders for the sales and purchases of securities, and the record-keeping and payroll accounting activities occurring in the New York office. Therefore, jurisdiction over the out-of-county defendants lies in New York County with respect to the GBL §352-c(5) counts.

Similarly, with respect to the GBL §352-c(6) counts, which apply to "[a]ny person, partnership, corporation, company...or any agent or employee thereof who intentionally engages in fraud, deception, concealment...[or] false pretense ..." with respect to the sale or purchase of securities, the evidence shows that the out-of-county defendants acted in concert with their New York County-based accomplices to engage in fraud and concealment of commissions based on artificial pricing of the traded securities in the manner described above and, with respect to each count, acted in concert to "wrongfully obtain property of a value in excess of two hundred fifty dollars...." (GBL §352-c[6]). Thus, with respect to the out-of-county defendants, jurisdiction as to these counts is similarly properly placed in New York County.

Regarding the counts of criminal possession of stolen property, elements of those counts include "knowingly possess[ing] stolen property" or "imped[ing] the recovery by an owner thereof...." (PL §§165.45, 165.50, 165.52). Here, once again, New York-based accomplices of the out-of-county defendants obtained the property of JSC customers in the form of profits from larcenous and fraudulent trades, which they calculated and distributed to the out-of-county defendants from New York County, pursuant to the plan to which they had all agreed, thereby knowingly possessing the unlawful profits. Further, by misstating the records of the trades in question on the confirmation reports ordered from the New York office and distributing the profits of those trades from the New York office, defendants, directly and through their accomplices, acted to impede the recovery of those monies by the customers while in New York County. Thus, jurisdiction over the counts of criminal possession of stolen property as to the out-of-county defendants is properly placed in New York County.

In any case, CPL §20.60(2) provides, in pertinent part:

A person who causes property to be transported from one jurisdiction to another by means of mail, common carrier or any other method is deemed to have personally transported it in each jurisdiction....

Here, since the proceeds of the transactions in question, including those trades not made in New York County, were received by and distributed from the New York office, the property in question was transported through New York County, thereby establishing jurisdiction in that county with respect to the counts of grand larceny, securities fraud and criminal possession of stolen property. (See People v. Taylor, 304 AD2d 434 [1st Dept. 2003][jurisdiction lay in New York County where, as part of a scheme to defraud, defendant caused property to be delivered from New York County to defendant in Florida]).

Cases such as People v. Lightbody, 62 AD3d 632 (1st Dept. 2009), cited by the defendants, are distinguishable. There, every element of the crime occurred in a county other than the one in which the defendant was being prosecuted. Here, the proceeds of their crimes were obtained, processed in and transmitted to the out-of-county defendants by their accomplices in the New York County office of JSC.

With respect to the counts charging falsifying business records in the first degree, defendants are correct that since each count of the indictment is deemed to be a separate accusatory instrument pursuant to People ex rel. Ortiz v. Commissioner of New York City Dep't of Corr., 253 AD2d 688 (1st Dept. 1998), aff'd, 93 NY2d 959 (1999), the prosecution was required to present evidence to the grand jury establishing geographical jurisdiction as to each count. Specifically, defendants question whether the evidence presented before the grand jury establishes that the out-of-county broker defendants charged with these counts, defendants Raspa, Scarcella and Rathgeber, caused false documents to be filed in New York County.

"A person is guilty of falsifying business records when, with intent to defraud, he...makes or causes a false entry in the business records of an enterprise...." (PL §175.10). Here, the evidence demonstrates that the documents in question, i.e., the new account applications, were signed by the customers in question in JSC's New Jersey and Long Island offices and prepared or completed by the defendants in question or by their assistants in said out-of-county offices. Thus, any false entries made or caused to be made by defendants Raspa, Scarcella and Rathgeber on the documents in question were made in their New Jersey or Long Island offices. Further, any intent to defraud on the part of Raspa, Scarcella or Rathgeber was likewise formulated in the New Jersey or Long Island office. Thus, neither the actus reus nor mens rea elements of falsifying business records occurred in the New York office.

In this regard, the People's only argument is that the branch offices of JSC are so interconnected with the main office in Manhattan as to establish jurisdiction in New York County. This argument is unavailing, as it does not establish conduct in New York County of the out-of-county defendants or any New York County accomplice sufficient to establish at least one element of the offense of falsifying business records occurring in this county.

Accordingly, Counts 59, 62, 65, 72, 87 and 88, each charging falsifying business records in the first degree (PL §175.10), are dismissed.

2. Due Process Vagueness Challenge to the Application of the Enterprise Corruption Statute

a. Parties' Contentions

Defendants contend that OCCA's enterprise corruption provisions are unconstitutionally vague as applied to this case, in that the definitions of "criminal enterprise" and "pattern of criminal activity" set forth in PL §460.10(3) and (4), respectively, fail either to provide fair notice that the conduct at issue is prohibited, or to set explicit standards for enforcement so that ad hoc and discriminatory enforcement of them may be avoided. They argue, as to the first issue, that because their conduct, if not acceptable industry practice, presents nothing more than a regulatory issue, they had no notice that it was criminally proscribed, and that as to the second issue, they have been unfairly selected for prosecution in order to meet the needs of government cooperators seeking to achieve more favorable dispositions of their own criminal cases.

The People respond that similar challenges to the enterprise corruption statute have been consistently rejected, citing as examples People v. Capaldo, 151 Misc2d 114 (Sup. Ct. NY County 1991), and People v. Cantarella, 160 Misc2d 8 (Sup. Ct. NY County 1993). They also argue that the actions of defendants in stealing, defrauding customers and falsifying records cannot be characterized as mere regulatory matters, and that defendants were given reasonable notice that their conduct was criminally proscribed.

b. Discussion

Statutory enactments are presumptively constitutional (Brady v. State of New York, 80 NY2d 596, 602 [1992], cert. denied, 509 US 905 [1993]; People v. Bright, 71 NY2d 376, 382 [1988]), and the party challenging them bears the burden of establishing unconstitutionality beyond a reasonable doubt. (People v. Scalza, 76 NY2d 604, 607 [1990][citation omitted]; People v. Bright, supra). As the Court of Appeals has explained:

A vagueness challenge involves a two-part analysis. First, it must be determined whether the statute in question is sufficiently definite to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute. Citizens must be afforded fair warning of what is prohibited by law so that they may act accordingly. Second, a statute must provide explicit standards for those who apply them so as to avoid resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.

(People v. Nelson, 69 NY2d 302, 307 [1987] [citations and quotation marks omitted]; see International Harvester Co. v. Kentucky, 234 US 216, 221 [1914][notice requirement]; People v. Stuart, 100 NY2d 412, 419 [2003][same]; Grayned v. City of Rockford, 408 US 104, 108-09 [1972][explicit standards requirement]). On a "vagueness as applied" challenge to a statute, the court must consider whether the statute can be constitutionally applied to the defendant under the facts of the case at hand. (Chapman v. United States, 500 US 453, 467-468 [1991]; People v. Parker, 41 NY2d 21, 24 [1976]).

New York's enterprise corruption statute, as codified in Penal Law Article 460, includes a preamble (Legislative Findings, PL §460.00) setting forth the legislative findings on which the 1986 enactment was predicated. The findings explain that the illegitimate gains from organized criminal operations are increasingly used to corrupt legitimate enterprises and employ them as the instrumentalities through which criminal ends may be accomplished. "Thus,...the concept of criminal enterprise should not be limited to traditional criminal syndicates or crime families, and may include persons who join together in a criminal enterprise...for the purpose of corrupting such legitimate enterprises...." (Id.).

Significantly, in light of the confusion engendered by similar statutes in other jurisdictions, the Legislature in drafting New York's enterprise corruption statute placed "limitations on its applicability" and provided "more rigorous definitions," in order to circumscribe the range of possible enforcement while still providing an effective tool to dismantle the type of sophisticated organization that could otherwise avoid detection and elude law enforcement authorities. (Id.).

The legislative findings note that the definitions of the terms "criminal enterprise" and "pattern of criminal activity" were carefully drawn and these terms "should be given their plain meaning, and should not be construed either liberally or strictly, but in the context of the legislative purposes set forth in these findings." (Id.).

Defendants acknowledge that similar challenges to the statute have consistently proven unavailing. This result no doubt derives from the attention paid by New York's Legislature to avoiding the problems encountered in federal practice under the Racketeer Influenced and Corrupt Organizations Act (Pub. L. 91-452, 84 Stat. 941, codified as 18 USC §§1961-1968 [1970][RICO]). (See, e.g., People v. Cantarella, supra, 160 Misc2d at 13 [court rejected vagueness challenge "in light of the definition sections of the statute, which render this statute significantly more definite in its scope than the comparable Federal RICO statute which has been upheld as constitutional"]; People v. Wakefield Fin. Corp., 155 Misc2d 775, 783-84 [Sup. Ct. NY County 1992][denying vagueness challenge based on "more rigorous" definitions targeting certain well-defined criminal activities]; People v. Capaldo, supra, 151 Misc2d at 119 [court found Legislature avoided ambiguities of other statutes by use of "significantly clearer and more limited" statutory scheme than the RICO, and observed lack of success of similar constitutional challenges to that statute]). Appellate courts have similarly rejected such challenges. (See, e.g., People v. Association of Trade Waste Removers of Greater New York, 267 AD2d 137, 139 [1st Dept. 1999][OCCA not unconstitutionally vague where two defendants convicted of enterprise corruption based upon committing at least three criminal acts]; People v. Barone, 221 AD2d 553 [2d Dept. 1995][OCCA not vague where defendant's participation in defrauding scheme for the benefit of an organized crime family is "within the ambit of the statute"]).

Defendants here offer no persuasive argument, and certainly none meeting the high standard required, for this court to reject the reasoning of the courts which have already addressed the issue. The sections of the statute defining "criminal enterprise" and "pattern of criminal activity" are sufficiently well-defined to give adequate notice of the proscribed conduct. The argument that defendants engaged in no more than conduct subject to regulatory discipline, and had no awareness of the criminal nature of their actions, withers when juxtaposed with the evidence of the thousands of transactions in which they participated allegedly resulting in a years-long series of systematic transgressions of fraud, theft and concealment at JSC which forms the framework for the charges in this indictment.

Defendants also claim that they were chosen for prosecution not because law enforcement officials made a subjective assessment that they had engaged in criminal activities, but because JSC and the individual defendants provided the consortium of criminals turned cooperators who had once been employed by JSC with targets against which to cooperate, thereby deflecting the prosecution's attention away from the cooperators. Defendants argue that the sorts of compensation and disclosure issues at the heart of this case can be found in brokerage houses across the country and are common in the industry, that the activities for which defendants were indicted are no different from those of other small cap brokerage houses, and that JSC and its staff have been the subject of an impermissible discriminatory prosecution.

As the Court of Appeals observed in People v. Bright, supra, in order to prevent arbitrary or discriminatory enforcement:

the Legislature must include in a penal statute minimal guidelines to govern law enforcement. The absence of objective standards to guide those enforcing the laws permits the police to make arrests based upon their own personal, subjective idea of right and wrong. A vague statute confers upon police a virtually unrestrained power to arrest and charge persons with a violation and furnishes a convenient tool for harsh and discriminatory enforcement by local prosecuting officials, against particular groups deemed to merit their displeasure.

(People v. Bright, supra, 71 NY2d at 382 [citations and internal quotation marks omitted]).

To the extent that the defendants were arrested and prosecuted as a result of cooperation by an informant, that circumstance, without more, does not support a claim of "discriminatory enforcement" which would render the enterprise corruption statute unconstitutionally vague. "[T]here must be not only a showing that the law was not applied to others similarly situated but also that the selective application of the law was deliberately based upon an impermissible standard such as race, religion or some other arbitrary classification." (304 West 42nd St. Corp. v. Klein, 46 NY2d 686, 693 [1979][citations omitted]). Here, defendants make no such claim.

In fact, "the conscious exercise of some selectivity in enforcement of the law is not in itself a constitutional violation" even where defendant may demonstrate that other, similar offenders have not been prosecuted. (People v. Goodman, 31 NY2d 262, 268 [1972]). Undoubtedly, "each day informants provide tips and the People act without having to ascertain the informant's motives." (People v. Keller, 176 Misc2d 466, 472 [Sup. Ct. NY County 1998]). Moreover, it is not discriminatory for the People to prosecute, or not, based on the strength of their case, their enforcement priorities, their perception of the deterrence value of the prosecution, or even budgetary and personnel allocation concerns. (People v. O'Hara, 9 Misc3d 1113(A), 2005 WL 2333754 [Sup. Ct. Kings County Sept. 23, 2005], at *4 n.17 [citing Wayte v. United States, 470 US 598, 607-608 (1985)]). Accordingly, defendants have failed to satisfy their heavy burden of establishing that there was no rational basis for the People's decision to prosecute them and that they were victims of unconstitutional selective enforcement of the Penal Law. (People v. Blount, 90 NY2d 998, 999 [1997]).

Accordingly, the terms "criminal enterprise" and "pattern of criminal activity" used in PL §460.10(3) and (4) are not unconstitutionally vague as applied to defendants, and the motion to dismiss the count of enterprise corruption on this ground is denied.

3. Federal Preemption

a. Parties' Contentions

Defendants contend that the counts of securities fraud, grand larceny and falsifying business records should be dismissed because this court lacks jurisdiction over them due to their preemption by Rule 10b-10 (17 CFR §240.10b-10), promulgated by the Securities and Exchange Commission (SEC) pursuant to the Securities and Exchange Act of 1934 (15 USC §78a et seq.)(SEA or Exchange Act). Rule 10b-10 is a regulation among those created by the SEC and the Financial Industry Regulatory Authority (formerly National Association of Securities Dealers [NASD])(FINRA) which addresses certain disclosures which must be made by brokers and broker-dealers to their customers in connection with any securities transaction, and establishes, inter alia, that no disclosure need generally be made of incentive payments in the form of "order flow"⁶ payments they receive. Defendants argue that to the extent that the state law claims included in the instant indictment are premised upon the theory that the broker defendants breached their fiduciary duty to their customers by failing to disclose to their customers their receipt of the insides, such payments were incentive payments analogous to the order flow payments protected from disclosure by Rule 10b-10, rendering the instant charges preempted by the federal regulation. Again, they contend that to the extent that they engaged in any misconduct with regard to such payments, the matter is exclusively one for regulation under applicable SEC and FINRA rules, and that state prosecutors lack any authority to police defendants' actions under state law.

The People respond that they are not prosecuting defendants for violating Rule 10b-10 or any other SEC or FINRA disclosure rules. Rather, they maintain that the defendants violated state penal laws by colluding to generate undisclosed additional profits at the expense of JSC's customers by manipulating stock prices and aggressively pushing their clients to buy certain stocks at times advantageous only to defendants.

b. Legal Standards

The Supremacy Clause of the United States Constitution provides that federal laws "shall be the supreme Law of the Land...any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." (US Const, art. VI, cl. 2). Thus, the Supremacy Clause provides for federal preemption of state law by "vest(ing) in Congress the power to supersede not only state statutory or regulatory law but common law as well...." (Guice v. Charles Schwab & Co., supra, 89 NY2d at 39 [citations omitted]). The issue of federal preemption "is ultimately one of congressional intent." (Id. [citing Barnett Bank of Marion County, N.A. v. Nelson, 517 US 25, 30 (1996)(other citation omitted)]).

The law recognizes four types of preemption of state law. The first of these, express preemption, may be found where the statute includes express language to that effect. (Guice v. Charles Schwab & Co., supra, 89 NY2d at 39 [citing Barnett Bank of Marion County, N.A. v. Nelson, supra, 517 US at 31]). Alternatively, congressional preemptive intent may be found implicitly, in one of two ways: where the federal statute "create(s) a scheme of federal regulation 'so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it'" (Barnett Bank of Marion County, N.A. v. Nelson, supra, 517 US at 31 [quoting Rice v. Santa Fe Elevator Corp., 331 US 218, 230 (1947)])(field preemption); or where federal law is in "'irreconcilable conflict' with state law" (Barnett Bank of Marion County, N.A. v. Nelson, supra, 517 US at 31 [quoting Rice v. Norman Williams Co., 458 US 654, 659 (1982)])(conflict preemption). Implied conflict preemption may be found where compliance with both the federal and state laws is impossible or when state law "stand[s] as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." (Hines v. Davidowitz, 312 US 52, 67 [1941]). Finally, federal regulations promulgated in furtherance of congressional intent to delegate to administrative agencies the authority to effectuate the purposes of Congress may also preempt State law. (Guice v. Charles Schwab & Co., supra, 89 NY2d at 39 [citing Capital Cities Cable, Inc. v. Crisp, 467 US 691, 699-700 (1984)])(regulatory preemption).

Preemption is not to be lightly assumed, however. "In all pre-emption cases...we start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress." (Medtronic, Inc. v. Lohr, 518 US 470, 485 [1996][quoting Rice v. Santa Fe Elevator Corp., supra, 331 US at 230]; City of New York v. Job-Lot Pushcart, 88 NY2d 163, 166-167 [1996], cert. denied, 519 US 871 (1996); People v. Caridi, 47 AD3d 944, 945 [2d Dept. 2008]). To sustain a claim that state law has been preempted by federal law, "the defendant must show a clear and unambiguous intent of Congress to do so...." (People v. Cohen, 9 AD3d 71, 87 [1st Dept.], lv. denied, 2 NY3d 797, cert. denied, 543 US 927 [2004]). In the field of securities regulation, however, "Congress plainly contemplated the possibility of dual litigation in state and federal courts...." (Matsushita Elec. Indus. Co. v. Epstein, 516 US 367, 383 [1996]).

In Guice v. Charles Schwab & Co., cited by defendants, the defendant broker-dealers sought dismissal of state civil law actions brought by the plaintiffs, who were their former customers, on the grounds that they were preempted by SEC Rule 10b-10. Plaintiffs' state law claims were based upon the defendants' receipt of order flow payments, in the form of monetary remuneration given by wholesalers to retail securities broker-dealers for routing their customers' orders for execution of certain securities to such dealers. (Guice v. Charles Schwab & Co., supra, 89 NY2d at 37). The Guice Court held that the state common law actions were preempted because they would "thwart the objectives of Congress" as delegated to the SEC, in that they sought to impose a duty of disclosure with respect to order flow payments which the SEC through its promulgation of Rule 10b-10 had specifically concluded "might be unworkable or costly out of all proportion to possible benefits to investors." (Id. at 47). Further, the Guice Court rejected the plaintiffs' argument that preemption was negated by section 28(a) of the SEA (15 USC §78bb[a]),⁷pursuant to which Rule 10b-10 was promulgated. The Court of Appeals reasoned that while the legislative history of section 28(a) indicates that its purpose was to "save the blue-sky laws from pre-emption" (Id. at 49 [quoting Leroy v. Great W. United Corp., 443 US 173, 182 n.13 (1979)]), savings clauses such as section 28(a) negate implied field preemption, but not conflict preemption, as was presented by the facts in Guice.

c. Discussion

Examination of Rule 10b-10 reveals that it contains no language expressly preempting prosecution of any of the state criminal law counts brought in this case. Thus, express preemption is clearly inapplicable in this case.

Further, there is neither anything in the structure, purpose or language of Rule 10b-10, nor is its regulatory scheme so pervasive, as to signal that Congress had a clear and manifest purpose of Congress intent to preempt the field. Therefore, implied field preemption is also inapplicable to this case.

Nevertheless, defendants urge that the state law counts against them are subject to preemption because they conflict with Rule 10b-10, as was the case in Guice.

Defendants' claims of conflict preemption are not supportable here, however.

In United States v. Schulman, 1998 WL 80179 (SDNY Feb. 25, 1998)(Keenan, J.), the court addressed a similar question, where the defendants maintained that the commercial bribery statute (PL §180.03) was preempted by the SEA, citing Guice. (United States v. Schulman, supra, at *1). The Schulman Court rejected this argument, distinguishing Guice from the case before it on several grounds.

First, Judge Keenan observed that the Guice ruling was limited to civil common law causes of action and neither construed New York's commercial bribery statute nor established that all undisclosed payments to a broker made with the intent to influence the broker's conduct toward the customer are protected and preempted by the Exchange Act. (Id.). The Schulman Court noted that the Guice holding was limited to claims based entirely on an alleged common law duty to disclose, and did not address violations of state criminal statutes, such as the commercial bribery statute there at issue. (Id.).

The same reasoning applies with respect to the Martin Act provisions at issue in this case: Guice had nothing whatsoever to do with New York's enforcement of its criminal securities fraud laws. And this court concurs with the conclusion of the court in Schulman that Guice did not exempt all undisclosed payments to brokers from state prosecution.

Second, Judge Keenan distinguished the basis of the Guice Court's holding that state law claims entirely founded upon a duty to disclose order flow payments were preempted, namely, that imposition of such a duty under state law was inconsistent with federal regulation of the same duty under Rule 10b-10, from the gravamen of the commercial bribery statute at issue in Schulman, namely, "the intent to influence the conduct of another by bestowing a benefit." (Id. [citation omitted]). Thus, Judge Keenan made clear that the commercial bribery counts before him, unlike the state common law claims in Guice, did not involve claims for breach of an alleged state law duty to disclose order payments and therefore were not subject to preemption on that basis.⁸

The same is true of the theft and securities fraud claims in this case. A person is not exempt from prosecution for those crimes merely because he is a broker and the benefit he has wrongfully and fraudulently obtained from his customer was an incentivized commission which he did not disclose.

The third distinguishing feature the Schulman Court found was that, in contrast to the goal of the litigation in Guice, prosecution under the commercial bribery case was "consistent with the federal scheme of regulation controlling disclosure with respect to Penny Stocks" and therefore would not interfere with the objectives of Congress. (Id.; see United States v. Szur, 1998 WL 132942 [SDNY Mar. 20, 1998][Koeltl, J.][Szur (SDNY)]⁹ [applying the reasoning of Schulman to reject the same preemption argument]).

In the same way, New York's criminal statute proscribing securities fraud, the Martin Act (GBL §§352-c[5],[6]), presents no express or implied conflict, on these facts, with the federal regulatory scheme under the Exchange Act or Rule 10b-10. (SEA §28[a], supra; see note 7, supra). Rather, its provisions prohibit (a) intention-ally engaging in a systematic and ongoing scheme with the intent to defraud or obtain property from at least ten persons by false or fraudulent pretenses, and so obtaining property from at least one person, while inducing or promoting the sale or purchase of securities (§352-c[5]); and (b) intentionally engaging in fraud, deception, concealment or false pretense, or making material false statements with intent to deceive or defraud, while inducing or promoting the sale or purchase of securities within or from New York, and thereby wrongfully obtaining property in excess of $250.

In sum, like Schulman, this case is easily distinguished from Guice. It involves alleged violations of state criminal statutes, not civil common law claims. Indeed, a review of the instructions to the grand jury in this case reveals that there was no mention of Rule 10b-10 or of fiduciary duty. Moreover, this is not a prosecution for the violation of an alleged duty to disclose order flow payments, and so does not present any possibility of inconsistency between the enforcement of state criminal law and the federal regulatory scheme. Thus, the prosecution of the crimes alleged here does not represent any effort to override or circumvent Rule 10b-10, which, in any event, does not preempt prosecution of the crimes alleged here.

Defendants cite United States v. Alvarado, 2001 WL 1631396 (SDNY Dec. 19, 2001)(Patterson, J.), in support of their contention that any actionable fiduciary duty is exclusively a matter for federal regulation. That case does not help them. In Alvarado, the defendants, all former registered representatives of a broker-dealer, challenged the inclusion in their indictment of allegations of excessively high compensation and incentivizing sales of house stocks. The Alvarado Court found that the compensation at issue was not material to the transactions in question and therefore did not need to be disclosed, but, rather than dismiss the charges of conspiracy and securities fraud or bar presentation of evidence pertaining to the alleged compensation, simply ordered that the allegations be stricken from the indictment. (Id.). Notably, the Alvarado court stated that "affirmatively lying about (defendant's) own compensation on a transaction can result in criminal liability." (United States v. Alvarado, supra, at *8, n.4). Thus, contrary to defendants' assertion, Alvarado does not stand for the proposition that breach of fiduciary duty is exclusively a federal regulatory matter.

Accordingly, defendants' claims of federal preemption are rejected.

4. Defective Pleading of OCCA Pattern of Criminal Activity

a. Parties' Contentions

Defendants move to dismiss the enterprise corruption count as improperly pleaded, in that it does not plead "a pattern of criminal activity" within the meaning of PL §460.10(4).¹⁰ Relying upon People v. Scarantino, 167 Misc2d 388 (Sup. Ct. Queens County 1996), defendants contend that while the People may properly plead more than one substantive count (e.g., grand larceny and securities fraud) based upon the same conduct or "criminal transaction," as that term is used in CPL §40.10(2), they may not derive more than one pattern "criminal act" (PL §460.10[1]) from the same conduct or criminal transaction for purposes of pleading the "pattern of criminal activity" element (PL §460.10[4]) of the enterprise corruption count. Defendants further claim that dismissing various pattern acts from the OCCA count will not correct the defect in the pleading, and citing People v. Colletti, 73 AD3d 1203 (2d Dept. 2010), contend that the sole redress for the error is dismissal of the entire enterprise corruption count with leave for the People to represent their evidence to another grand jury.

The People respond that the manner in which the enterprise corruption count is pleaded in the indictment complies with the requirements of CPL §200.40(1)(d), and that the count is, therefore, properly pleaded.

b. Discussion

Defendants' argument is based upon PL §460.10(4)(b), which provides, in pertinent part:

"Pattern of criminal activity" means conduct engaged in by persons charged in an enterprise corruption count constituting three or more criminal acts that:

(b) are neither isolated incidents, nor so closely related and connected in point of time as to constitute a criminal offense or criminal transaction, as those terms are defined in section 40.10 of the criminal procedure law....

(PL §460.10[4][b]). CPL §40.10(2), incorporated by reference into PL §460.10(4)(b), provides:

"Criminal transaction" means 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 circumstance 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.

(CPL §40.10[2]).¹¹

Under the governing provisions of the New York Penal Law and Criminal Procedure Law, defendants' argument has no resonance, as it conflates the evidentiary and pleading requirements for an enterprise corruption claim. While PL §460.10(4)(b) and, by reference, CPL §40.10(2), govern the evidentiary requirements for establishment of a legally sufficient pattern of criminal activity, the pleading requirements for an enterprise corruption count are governed by CPL §200.40(1)(d), relating to joinder of defendants in an indictment. That section provides, in pertinent part, that two or more defendants may be charged in an indictment with enterprise corruption, provided that:

(i) all the defendants are jointly charged with every count of enterprise corruption alleged therein; and

(ii) every offense, other than a count alleging enterprise corruption, is a criminal act specifically included in the pattern of criminal activity on which the charge or charges of enterprise corruption is or are based; and

(iii) each such defendant could have been jointly charged with at least one of the other defendants, absent a count alleging enterprise corruption, under the provisions of paragraph (a), (b) or (c) of this subdivision....

(CPL §200.40[1][d][i],[ii],[iii]).

In this case, clearly, the indictment jointly charges all defendants with the count of enterprise corruption, thus satisfying CPL §200.40(1)(d)(i), and every substantive count set forth in the indictment has a corresponding criminal act included in the enterprise corruption count, thereby meeting the requirements of CPL §200.40(1)(d)(ii). Further, this court's review of the substantive counts establishes that each defendant could have, and has been, charged jointly with at least one other defendant pursuant to CPL §200.40(1)(b), in that all of the substantive counts "are based upon a common scheme or plan" to manipulate the prices of small cap stocks in order to share artificially created insides which would not be disclosed to JSC customers, thereby satisfying CPL §200.40(1)(d)(iii). Accordingly, this court finds that the enterprise corruption count of this indictment, including its pattern of criminal activity element, satisfies the requirements of CPL §200.40(1)(d) and is, therefore, properly pleaded under the terms of the governing state statutory law.

In Scarantino, the sole state case cited by defendants in support of their argument, the trial court applied PL §460.10(4) and CPL §40.10(2) in evaluating the legal sufficiency of grand jury evidence supporting the pattern of criminal activity element of an enterprise corruption count, rather than examining whether the pleading of that count was satisfactory. There, the defendant's false report of a stolen vehicle to an insurance company had served as the basis of the three separate criminal acts upon which the prosecution relied to establish the pattern of criminal activity. In dismissing the OCCA count for failure to establish the pattern, the court made an evidentiary ruling, finding the evidence of the defendant's single act in falsely reporting a car stolen to have formed an identical evidentiary basis for all three criminal acts, and to have thus constituted no more than one criminal transaction, thereby failing to establish legally sufficient proof of a pattern of criminal activity for purposes of PL §460.10(4)(b) and CPL §40.10(2). (People v. Scarantino, supra, 167 Misc2d at 390, 391). Defendants' reliance on Scarantino to support their argument purely relating to alleged defects in the pleading of the indictment is, therefore, misplaced.

Defendants' further contention that the sole remedy for the purported defect is dismissal of the OCCA count and re-presentation of the evidence to the grand jury is also baseless. In People v. Colletti, supra, on which defendants rely, the Appellate Division, Second Department ordered a new trial due to the prosecution's having broadened its theory of the criminal enterprise at trial from that which was presented to, and found by, the grand jury to form the basis of the charge in the indictment. (See People v. Colletti, supra, 73 AD3d at 1205-1207).¹² Here, however, the challenge to the pattern of criminal activity as pleaded is unfounded, for the reasons stated. ¹³

***¹⁴

D. Defective Grand Jury Proceedings and Impaired Integrity of Grand Jury Proceedings

*39 ***¹⁵

2. Use of Summary Charts

a. Parties' Contentions

Defendants contend that the experts who testified before the grand jury relied upon incomplete and misleading summary charts. They assert that the summary charts failed to disclose JSC's bid/ask quotations or the real time market conditions or account for national best bid or offer (NBBO) or volume weighted average price (VWAP) at the time of the execution of the trades in question, so the grand jury could not determine whether "best execution" occurred or whether the market was manipulated in executing the trades in question. Defendants further argue that the summary charts were misleading because neither the charts nor any other evidence before the grand jury provided information as to the identity of the market makers who posted the bid/ask prices; realtime quotes of the amounts or the stock available for purchase over the course of the day: or the total volume of trades made by JSC in the stock compared to the total volume of trades in the stock on that day. Defendants contend that lacking such information, the grand jury could not have concluded that the trades in question by the defendant's resulted in manipulation of the price of that stock.

Defendants also assert that the People incorrectly portrayed the role of "cancel and correct" orders, arguing that certain trades were marked "c/c" on the charts to signify that they were cancelled in furtherance of the stock manipulation scheme while in fact all JSC "cancel and correct" orders represented necessary internal adjustments made by the traders to various trades and were routed through JSC's back office to be approved by the compliance department and had nothing to do with the trades in question. Further, defendants argue that since the "cancel and correct" portions of the summary charts were derived from information inputted into the BRASS system,¹⁶the summary charts and expert testimony omitted information related to "cancel and correct" orders related "price improvement" and commission reductions, which orders, while targeted to reduce excessive commissions, were always implemented post-trade and therefore not reflected in the BRASS system. They also contend that the charts did not reflect that JSC maintained other trading accounts used to trade risk positions, thereby leaving the grand jury with the false impression that JSC's not held orders were riskless transactions. Defendants further assert that the summary charts, as well as the expert testimony, were erroneous in reflecting that JSC was only entitled to the "spread," or profit, if it took risk in a position, while failing to explain that a market maker may also be properly compensated by the spread if it stands ready to buy or sell a specified number of shares of given stocks ¹⁷. Defendants further contend that a substantial number of the trades included in the People's summary charts were unsolicited transactions, and that therefore the People's argument that the JSC brokers colluded with the traders to aggressively market these stocks with unwitting customers in order to earn additional undisclosed compensation is untrue.

Defendants argue that the summary charts (Exhs. 163-165) violate the voluminous writings standard, which defendants contend is analogous to Rule 1006 of the Federal Rules of Evidence.¹⁸Defendants argue that that standard is not met, in that the author of the charts and the sources of the information which they contained were unknown to the grand jury, and the sources were not shown to have been admissible for each entry or document.

The People respond that the summary charts were not misleading and assisted the grand jury by summarizing documents already in evidence. They argue that defendants' objections that the summary charts do not detail other aspects of what may have been happening in the market do not alter the fact that there were 5,022 trades identified as criminal. Further, the People assert that, while representing only 2.78 percent of the overall trades during the period in question, these trades, virtually all not held orders and solicited trades, represented about 6.62 percent of JSC's revenue during 2003-2005, making them 238 percent more profitable than other JSC trades during the same period. They contend that the summary charts reflect these facts and the undisclosed compensation derived from these trades in summary form, with line-by-line details of each trade and explanations of details, e.g., the bid/ask price of a stock at order time.

b. Discussion

A review of the summary charts reveals that they reflect 23 separate points of information about each of the more than 5000 trades which are the subject of this indictment, including the date of the transaction, name of the stock, value of shares traded, brokers and customers involved in each trade, time of receipt of the order, time of execution of the trade, price per share reported to customers, actual price per share, the mark-up or mark-down, the amount of gross credit per trade and the amount of undisclosed compensation per trade. Clearly, the summary charts aided the grand jury in examining the contents of thousands of documents which could not conveniently be examined in court by assimilating such overwhelmingly large amounts of data, and were supported by explanatory testimony from individuals familiar with the documents in question and investigators who had reviewed them and used them to create the summary charts. In light of the testimony received, the charts were not misleading.

While Rule 1006 is not directly applicable to state trial or grand jury proceedings, the concerns raised by defendants that the summary charts violate the standard derived from the Rule, including that the charts be based on facts in evidence verified by the person who prepared them, and that they be verifiable by reference to the actual records in evidence, and that they be made available to all parties at a reasonable place and time, have been adequately addressed here. Each of the summary charts was authenticated by its maker, who testified to accurately preparing each such chart from documents which had been received in evidence by the grand jury, and which themselves had been properly authenticated.¹⁹ The documents thus summarized numbered in the thousands, and could not have been feasibly examined by the grand jurors. In addition, the information contained in the documents regarding the more than 5000 stock trades referenced in the documents would likely have been difficult for the grand jurors to comprehend without the use of the summary charts. Accordingly, the court finds that the summary charts were properly introduced as an aid to the grand jury in examining the contents of the voluminous writings presented before it as evidence, and that there was no impairment of the integrity of the grand jury proceedings or possibility of prejudice to defendants on this ground.

***²⁰

E. Motion to Dismiss for Legal Insufficiency

Defendants raise several arguments supporting their claim that the indictment should be dismissed on grounds of legal insufficiency. (CPL §210.20[1][b]).

Pursuant to CPL §210.20(1), the court may dismiss an "indictment or any count thereof" where, inter alia, "[t]he evidence before the grand jury was not legally sufficient to establish the offense charged or any lesser included offense" (CPL §210.20[1][b]). Legally sufficient evidence is defined as "competent evidence which, if accepted as true, would establish every element of an offense charged and the defendant's commission thereof...." (CPL §70.10[1]). When conducting a legal sufficiency review, "[t]he reviewing court must consider whether the evidence, viewed most favorably to the People, if unexplained and uncontradicted-and deferring all questions as to the weight or quality of the evidence-would warrant conviction...." (People v. Swamp, 84 NY2d 725, 730 [1995][citations omitted]; People v. Mack, 76 AD3d 877, 881 [1st Dept. 2010]). Evidence is legally sufficient if it establishes a prima facie case before the grand jury; proof beyond a reasonable doubt is not required. (See People v. Swamp, supra, 84 NY2d at 730). The possibility that alternative conclusions may be drawn from the facts presented is irrelevant, "as long as the [g]rand [j]ury could rationally have drawn the guilty inference." (People v. Deegan, 69 NY2d 976, 979 [1987]).

With these standards in mind, the court will now address each of defendants' contentions of legal insufficiency in turn.

***²¹

2. Enterprise Corruption Count

a. Criminal Enterprise

i. Parties' contentions

Defendants argue that the enterprise corruption count must be dismissed because the evidence before the grand jury was insufficient to prove the existence of a criminal enterprise with a continuity of existence, structure, and criminal purpose; that each of the defendants shared a common purpose in that enterprise, in that each of them was specifically aware of the different aspects of the charged criminal scheme; that each defendant was associated with the criminal enterprise; and that each defendant intentionally conducted or participated in the affairs of the criminal enterprise.

The People respond that the enterprise had a continuity of existence and an ascertainable structure beyond the individual criminal acts committed within the criminal enterprise and that it is not required that each defendant be aware of every aspect of the criminal scheme. They further contend that the grand jury heard sufficient evidence of defendants' various acts in furtherance of the criminal enterprise to satisfy this element of the enterprise corruption count.

ii. Legal standards

To the extent relevant here, Penal Law §460.20(1) defines enterprise corruption as follows:

A person is guilty of enterprise corruption when, having knowledge of the existence of a criminal enterprise and the nature of its activities, and being employed by or associated with such enterprise, he:

(a) intentionally conducts or participates in the affairs of an enterprise by participating in a pattern of criminal activity....

(PL §460.20[1]).

In order to prove a prima facie case of enterprise corruption, the prosecution must first establish the existence of a criminal enterprise. Penal Law §460.10(3) defines a "criminal enterprise" as a group of persons sharing a "common purpose" of engaging in criminal conduct, associated in an "ascertainable structure" distinct from a pattern of criminal activity, and with a "continuity of existence, structure and criminal purpose" beyond the scope of individual criminal incidents. Thus, a criminal enterprise consists of three elements: (1) a group of persons sharing a common purpose; (2) an ascertainable structure distinct from the pattern of criminal activity; and (3) a continuity of existence, structure and criminal purpose. The existence of a pattern of criminal activity does not necessarily establish a criminal enterprise. Rather, a criminal enterprise also requires that there be a "group of persons" whose "common purpose" is to engage in criminal conduct.

iii. Discussion

(A) Common purpose

The first element required to establish the existence of a criminal enterprise is that there be a "common purpose" shared by a group of actors. Thus, this court must initially determine whether there is legally sufficient evidence to establish that all defendants in this case shared a common criminal purpose.

Courts have found that a common purpose was established under circumstances where members of a criminal enterprise have jointly engaged in a corrupt scheme to utilize the corpus and resources of an established legitimate organization to engage in conduct resulting in an economic benefit for themselves. "Realizing an economic benefit qualifies as a 'common purpose' under the enterprise corruption statute." (People v. Pustilnik, 14 Misc3d 1237[A], 2007 WL 674116, 2007 N.Y. Slip Op. 50407[U] [Sup. Ct. New York County 2007], at *4). For example, in D.H. Blair, the court found that the common purpose was to use the legitimate enterprise of the D.H. Blair firm as a device for obtaining an economic benefit by defrauding members of the investing public under the guise of running a legitimate securities firm. (D.H. Blair, supra, 2002 WL 766119, at *8). In Meyers Pollock, the court found that the common purpose of the enterprise was to use the outwardly legitimate business structure of the corporate defendant to deceive its clients and serve as the vehicle by which the defendants stole money from unsuspecting investors by manipulating small cap securities. While not every defendant engaged in the same particular criminal act or acts, the grand jury evidence established that they were still a group of persons sharing the common purpose of engaging in larcenous and fraudulent securities transactions.

In this case, the evidence presented to the grand jury established prima facie that all of the individual defendants acted in furtherance of a common purpose similar to that found in D.H. Blair and Meyers Pollock, by using the legitimate corpus of JSC to create an economic benefit for themselves, and for the firm, by illegally maximizing profits, at the expense of their customers. This was accomplished by their engaging in criminal conduct in furtherance of that purpose, which included acts constituting securities fraud, grand larceny, criminal possession of stolen property and falsifying business records. Thus, in this case, the evidence is legally sufficient to satisfy the requirement that the criminal enterprise have a common purpose.

(B) Ascertainable structure

The second issue is whether the grand jury was presented with legally sufficient evidence to establish that an ascertainable structure distinct from a pattern of criminal activity existed at all relevant times. Defendants argue that a criminal enterprise is not properly alleged here, because the structure of the enterprise as alleged is indistinguishable from the legitimate corporate structure of JSC and is, therefore, not ascertainable. They further contend that in order to establish that the enterprise has an ascertainable structure, the People were required to provide evidence to the grand jury that the legitimate corporate structure of JSC was infiltrated or taken over by outside criminal forces, which transformed JSC into a criminal enterprise.

For a criminal enterprise to have a distinct ascertainable structure, it is neither required that there be an organization that is functionally independent of the criminal activity, nor that the criminal enterprise have a structure distinct from a legitimate enterprise. (See Marcus, "Enterprise Corruption-Article 460, [Greenberg, ed., West 2010][Marcus 2010] §36.3, at n.24). As explained in the Governor's Memorandum on the bill:

[T]he definition of criminal enterprise in this bill does not require that the structure of a criminal enterprise be distinct from that of a legitimate one.... [G]roups that have both legitimate and illegitimate purposes...can constitute criminal enterprises.... [The bill] permits the hierarchy of and positions within a legitimate enterprise...to contribute to the structure of a criminal group existing and operating within that legitimate enterprise.

(Bill Jacket, L.1986, ch. 516, Governor's Memorandum on Assembly Bill 11726, July 24, 1986 [Governor's Memo], at

3).

What is significant is that the structure of the enterprise be distinct from the pattern of criminal activity, and that it "extend beyond the common plan or scheme encompassing the criminal acts." (People v. Besser, 92 NY2d 136, 143 [2001]). If the enterprise exhibits a "system of authority beyond what is minimally necessary to effectuate individual substantive criminal offenses," it may be deemed sufficient to establish a sufficiently ascertainable structure. (People v. Wakefield Fin. Corp., supra, 155 Misc2d at 785). These views are consistent with the legislative intent of OCCA, which focuses on the conduct of organized criminal activity rather than on the appearance of an organization committing the criminal activity. (People v. Forson, NYLJ, May 12, 1994, at 29 [Sup. Ct. NY County 1994]).

An ascertainable structure requires something more than a "mere ad hoc association." (People v. Wakefield Fin. Corp., supra, 155 Misc2d at 785). It must be clear that the alleged criminal enterprise neither came into existence for the purpose of committing one or more of the criminal acts alleged, nor did its existence depend upon commission of any particular criminal act or acts. (Id.). Crimes committed by individuals who engage in a brief series of criminal acts in an ad hoc and unstructured group are not subject to prosecution under OCCA. (See Marcus 2010 §36.3 [two or more people acting in concert to commit several crimes does not, without more, establish a structure distinct from a pattern of criminal activity]). If, however, the group demonstrates a structure or a specialization, the requirement is satisfied. (W.C. Donnino, Practice Commentaries, McKinney's Cons. Laws of NY, Book 39, Penal L. §460.20 [2011], at 175 regulatory review. (Id., Slip Op. at 6-7). [citing Governor's Memo]).

Moreover, the enterprise corruption statute is not so limited as to encompass only an organization which is consumed by criminal activities. The criminal enterprise may have legal activity as well as illegal activity, and still fall under the coverage of the statute, which only requires that the organization be taken over by individuals who use it as a vehicle for commission of illegal activity which could not have been otherwise committed without the organization's legitimate corpus. (People v. Western Express International, Inc.,-AD3d -,-NYS2d -, 2011 WL 1467217, 2011 NY Slip Op. 03136 [1st Dept. Apr. 19, 2011]; D.H. Blair, supra, 2002 WL 766119, at *10; Marcus 2010 §36.3).

In a very recent decision, a divided panel of the Appellate Division, First Department reversed a lower court's dismissal of enterprise corruption charges, finding an ascertainable structure to have existed where individuals employed cyber-crime techniques to use the facilities of a check cashing and digital currency exchange firm to facilitate money laundering and the buying and selling of stolen credit card information. In Western Express, supra, the court reviewed the case law applying OCCA's ascertainable structure requirement and concluded that a criminal enterprise had been created, using the structure of the legitimate firm to transform its originally legitimate operations of the financial services firm's website into a hub for criminal activity, albeit comprising only five percent of the firm's business, using the company's structure as a framework to attract others to join in the participants' criminal transactions and to shield the criminal conduct from regulatory review. (Id., Slip Op. at 6-7). The dissent, on the other hand, citing the same cases, opined that the lack in the scheme of any organizational structure, hierarchy of personnel, system of authority, collective decision making, coordination of activities and profit sharing mechanism evinced the absence of any ascertainable structure, and observed pointedly that the criminal transactions persisted, even after the company ceased its operations, through the arm's-length transactions between individual defendants acting independently for their individual benefit. (Id., at 8-9, 11).

The instant case presents a far more readily identifiable criminal enterprise structure than that in Western Express. Here, the evidence presented to the grand jury supports the conclusion that the criminal enterprise operated within JSC's legitimate corpus, availing itself of JSC's corporate form, its support staff members, its regulatory status, its office locations and its clearinghouse relationship. The principals recruited employees to join the firm because of their willingness to participate in the scheme transactions. Meetings were held at which the principals announced the schemes, and the traders and brokers communicated and carefully coordinated their own actions, as well as that of the support staff, to ensure that they would be carried out at a time and in a manner designed to ensure their success. Directions were given by traders to brokers as to when to obtain orders and execute trades. Profits were taken by the firm and principals, who shared them with the trader and broker defendants according to formulas negotiated by traders with brokers, and which were subject to approval by the principals. At JSC, none of the alleged criminal transactions were committed by individual defendants independently of the organization, and none of the criminal activity continued after the demise of the firm.

Rather, the participants in the criminal enterprise were organized based upon their hierarchical positions within the corporate structure and their locations with the headquarters on Maiden Lane or in the branch offices. Utilizing the resources of JSC, the members of the criminal enterprise each played a role within the structure of that enterprise in the overall scheme. The evidence supports the conclusion that JSC principals Sorbara and Markowitz were the managers of the criminal enterprise, supervising the trades specified in the indictment and settling disputes concerning the undisclosed compensation those trades generated. Defendants Shapiro, Moraitis and Martinucci were the traders who informed brokers which scheme stocks would be manipulated, and when such action would occur. Their role was to manipulate scheme stocks and to execute customer orders in such a manner as to maximize the profits to be shared by members of the criminal enterprise, without regard to the customers' well-being. Defendants Orthos, Ferraro, Raspa, Tierney, Micciola, Scarcella, Tripodi, Rathgeber, Menies, Mucovic and Costabile were brokers, whose role was to coordinate with the traders in selling and buying scheme stocks by giving advance commitments as to the number of shares their customers would purchase and, without their clients' knowledge or consent, delaying entry and execution of customer orders pending the successful manipulation of the prices of the scheme stocks, and then, on direction from the traders, executing those orders at prices unfavorable to the customers to generate unlawful profits to be shared by the members of the criminal enterprise. Thus, the evidence clearly identified who the members of the criminal enterprise are and what their roles were in the hierarchy of that enterprise, the unlawful purpose of which could not have been achieved on a continuing basis in the absence of such a hierarchical structure within the legitimate corpus of JSC. In this case, clearly, there was "a system of authority beyond what is minimally necessary to effectuate individual substantive criminal offenses," (People v. Wakefield Fin. Corp., supra, 155 Misc2d at 785), and defendants could not have committed their crimes independently of the structure of the corrupt enterprise.

Defendants also argue that, in this case, the People were required to present legally sufficient evidence of an ascertainable structure consisting of outside criminal forces that infiltrated the legitimate corpus of JSC and transformed it into a criminal enterprise. Here, the People presented evidence which established, prima facie, that the principal defendants, Sorbara and Markowitz, hired brokers and traders willing to take part in the fraudulent activities of the enterprise, who in turn corrupted the legitimate enterprise for which they worked and used its hierarchy as a parallel structure for the ongoing pursuit of criminal activity in which they participated. The evidence further shows that the enterprise continued to maintain its structure, notwithstanding changes in participants in the enterprise over time.

Accordingly, the evidence sufficiently established that the criminal enterprise had, at all relevant times, an ascertainable structure distinct from its pattern of criminal activity.

The third component of a criminal enterprise is that it have a continuity of existence, structure and criminal purpose beyond the scope of individual criminal incidents.

The enterprise must continue in existence beyond the time required to commit any individual criminal incident, and must be distinct from any ad hoc association entered into for the purpose of carrying out one or more of the criminal incidents relied upon to establish its existence. (People v. Cantarella, supra, 160 Misc2d at 20; Bill Jacket, L.1986, ch. 516, Letter from Hon. Melvin H. Miller, Chairman, Committee on Codes, to Hon. Evan A. Davis, Counsel to the Governor, July 16, 1986, at 2). Thus, the third issue to be determined is whether there is legally sufficient evidence to establish that the criminal enterprise's purpose is larger in scope than any one particular transaction and whether it is dependent on the continuation of any one transaction.

In the instant case, evidence was presented from which the grand jury could have reasonably found that, from the period from on or about January 2001 through to on or about December 2005, defendants organized into groups, primarily based on their branch locations and positions within the corporate structure, to participate in a pattern of criminal activity which included securities fraud, grand larceny, criminal possession of stolen property and falsifying business records in order to carry out fraudulent schemes which enabled them to artificially raise, maintain, and manipulate the prices of certain securities. The alleged criminal enterprise is not alleged to have depended on the participation on any key individual defendant, but to have utilized the hierarchy of JSC to operate as a result of the participation and contribution of each group member, notwithstanding the entry and departure of different members to the group over time.

In sum, this court finds that the evidence is sufficient to establish a prima facie case that a criminal enterprise existed at all relevant times.

b. The Pattern of Criminal Activity and Defendants' Participation in It

Once the existence of a criminal enterprise is established, the evidence must demonstrate the existence of a pattern of criminal activity (PL §460.10[4]) and that each defendant, having knowledge of the existence of the criminal enterprise and the nature of its activities, engaged in the affairs of the enterprise by participating in that pattern (PL §460.20[2]). Defendants challenge the sufficiency of the proof before the grand jury both as to the existence of a pattern and also as to their participation in it.

i. Pattern of criminal activity

Defendants reprise their argument made with respect to the form of the indictment (see section II.C.4, supra) that while a single criminal transaction can serve as the basis for multiple counts of an indictment, it cannot serve as the basis for multiple pattern acts within the enterprise corruption count. They contend that regardless of the extent to which the CPL §40.10(2)(b) "single criminal venture" standard is incorporated into the definition of "criminal transaction" contained in PL §460.10(4)(b), the evidence before the grand jury fell short of bringing them within its terms. The People maintain that the evidence demonstrates the commission by each defendant of multiple crimes associated with the manipulation of multiple scheme stocks, including grand larceny, securities fraud and falsifying business records, thereby establishing many more than the requisite three criminal acts for each defendant.

With respect to the existence of a pattern of criminal activity, this court has reviewed the indictment and the evidence before the grand jury and finds that the first requirement, that the evidence establish three or more criminal acts which were committed within ten years of the commencement of the criminal action, is satisfied. (PL §460.10[4][a]). All 138 criminal acts charged in the indictment werecommitted within ten years of the filing of the indictment on May 19, 2009.

More complicated, however, is the court's examination of the second requirement for a finding of a pattern (PL §460.10[4][b]), respecting the relation of the criminal acts to one another. This determination requires the court first to address the meaning of "criminal transaction" as employed in PL §460.10(4)(b). The controversy, acknowledged by both sides here (see note 11, supra), involves that provision's reference to CPL §40.10 for the definition of "criminal offense" and "criminal transaction," and specifically whether subsection (b) of section 40.10(2) is properly to be deemed incorporated by reference into the definition of "criminal transaction" found in PL §460.10(4)(b).

This court agrees with those courts which have held that OCCA incorporates the terms of CPL §40.10(2)(a) to define the term "criminal transaction" but does not include the "criminal venture" language of CPL §40.10(2)(b) in PL §460.10(4)(b), not only because the language of the latter statute expressly incorporates virtually the same language as subsection 2(a) without including any language similar to that of subsection 2(b), but also because the contrary view would undermine the very purposes of the enterprise corruption statute and eviscerate it as an effective law enforcement tool. (See D.H. Blair, supra, 2002 WL 766119, at *13 [quoting Marcus, New York Criminal Law (Richard A. Greenberg, ed., West 1996), at 877 n.57 (if "criminal venture" language were incorporated, "crimes committed as part of a common scheme or plan,...would count only as one 'criminal act', and thus could never be sufficient to constitute a pattern [and the] Legislature's intent to permit patterns to include crimes committed pursuant to a common scheme or plan would be negated_)]; People v. Giordano, NYLJ, December 7, 1992, at 28 [Sup. Ct. NY County 1992] [to hold otherwise would mean that "no OCCA charge would ever be feasible"]; People v. Gambino, NYLJ, May 1, 1991, at 23 [Sup. Ct. NY County 1991][_To construe the statute otherwise would be to prevent the prosecution of the exact type of criminal activity the statute was designed to thwart_]; see People v. Conigliaro, 290 AD2d 87, 90 [2d Dept. 2002][rejecting defense argument that "all criminal acts perpetrated by (a criminal) enterprise...constitute integral parts of a single criminal venture"]). Additionally, a reading of the statute which incorporated CPL §40.10(2)(b) would introduce ambiguity into an otherwise clearly written statute, which expressly directs that its "definitions should be given their plain meaning, and should not be construed either liberally or strictly, but in the context of the legislative purposes set forth in (the statute)." (PL §460.00).

Applying that interpretation of the pattern of criminal activity definition in PL §460.10(4)(b) to the instant case, it is clear that the evidence before the grand jury amply supported the view that the alleged criminal acts, which were executed according to the formulaic procedures established by defendants and took place over a period of several years, involving numerous clients and various securities, were "neither isolated incidents nor so closely related and connected in point of time or circumstance of commission as to constitute a criminal offense or criminal transaction" (PL §460.10[4][b]) as those terms are defined in CPL §40.10(2)(a), that is, as to constitute "a single criminal incident." Accordingly, under the interpretation of the statute finding greatest favor in the case law and treatises, the evidence here was shown to involve a pattern of criminal activity. As an alternative ground for upholding the enterprise corruption count before it, the D.H. Blair court observed that the large number of separate criminal transactions supported by legally sufficient evidence in that case sufficiently established a "pattern of criminal activity," even were section 2(b) of CPL §40.10 properly read into the pattern of criminal activity definition. (D.H. Blair, supra, at *13 [citing People v. Conigliaro, supra]). Similarly, in the instant case, the enterprise corruption count alleges some 138 pattern acts (more than 120 of which remain viable after the dismissals ordered in this decision), involving approximately 5000 stock trades occurring over a five-year period, affecting more than two dozen testifying customers and utilizing nineteen separate fraudulent schemes, each involving a different security. On the record presented, therefore, even were this court to read section 40.10(2)(b) into the statutory definition of PL §460.10(4)(b), the requirements of the statute would have been adequately established, since the numerosity and diversity of the securities trades and victims would take them outside of the confines of being integral parts of a single criminal venture. (See People v. Conigliaro, supra, 290 AD2d at 92; D.H. Blair, supra, at *13).²²

Finally, the criminal acts comprising the enterprise corruption count are related to one another through a common scheme and plan to use the criminal enterprise to promote securities transactions which would maximize profits for the defendants without regard to the duties owing to, or interests of, their customers, satisfying the final requirement of the definition, and establishing the existence of a pattern of criminal activity. (PL §460.10[4][c][i]).

ii. Participation in the pattern

Defendants further argue that the evidence before the grand jury of the participation by each defendant in the pattern of criminal activity (PL §460.20[2]) was insufficient, because it failed to establish that every defendant participated in and was aware of every pattern act alleged in the enterprise corruption count. The People answer that while each defendant did not participate in every criminal act comprising the pattern of criminal activity, they have sufficiently met their burden by demonstrating that each defendant knew that he could participate in the scheme and benefit by illegally taking a portion of JSC's customers' money.

A person participates in a pattern of criminal activity when, with intent to advance the affairs of the criminal enterprise, he commits, or is an accomplice to committing, at least three of the criminal acts in the pattern. (PL §460.20[2]). As to those three acts, two must be felonies other than conspiracy; two of the acts, one of which is a felony, must have occurred within five years of the commencement of the criminal action; and each of the acts must have occurred within three years of a prior act. (PL §460.20[2][a],[b],[c]).

With respect to the issue of individual participation, this court has carefully reviewed the criminal acts charged in the indictment²³ as to each defendant and concludes that the evidence before the grand jury, viewed in the light most favorable to the People, establishes a prima facie case that each defendant, intending to participate in the schemes of the criminal enterprise, engaged in a pattern of criminal activity by committing, as a principal or as an accomplice, at least three of the criminal acts comprising the pattern (without regard to criminal acts which have been dismissed as to that defendant) (CPL §460.20[2]), all of which were felonies other than conspiracy (PL §460.20[2][a]), two of which occurred within five years of the commencement of the action (PL §460.20[2][b]) and each of which occurred within three years of a prior act (PL §460.20[2][c]. Thus, each defendant's conduct met the standards of PL §460.20(2).

With respect to the defendants' claims that the People failed to establish each defendant's participation in and awareness of every pattern act alleged, the Meyers Pollock case, which has striking similarities to this one, is instructive. There, the court addressed this issue in its examination of a count of enterprise corruption involving a pattern of criminal activity on the part of twenty individuals who were employed by the defendant investment firm. In Meyers Pollock, the court determined that a particular defendant's lack of knowledge of the exact parameters of the extremely expensive scheme there at issue would not defeat a finding of participation, because the nature of the scheme (manipulation of highly speculative securities for which there was no true market) was such that a defendant's knowledge of the larger scheme to defraud could be inferred. (See also People v. Besser, supra, 96 NY2d at 145 [rejecting argument that "the United States, 328 US 640, 647 [1946]), *64 People were required to offer evidence connecting defendants to each pattern act" to meet standard of sufficiency of accomplice liability evidence under CPL §60.22]).

Here, too, evidence before the grand jury revealed that defendant traders and brokers were informed of the schemes at meetings with the principals, and that this was well known throughout the firm's Manhattan office and among the participating brokers and traders in its branch offices. The procedures for the schemes were in place and were triggered on instruction from the principals and or the trader defendants, following which the broker defendants took the numerous steps necessary to fulfill their roles in the scheme, fully aware of the steps to complete the process which would be taken in the Manhattan headquarters office where the trades were processed and recorded, and profits were calculated and distributed. All participants acted in conformity with their position in the hierarchy of the criminal enterprise, and the conduct proven could not have occurred without the defendants' knowledge of the larger criminal venture being run by the criminal enterprise.

Accordingly, the court finds that the evidence before the grand jury, viewed in the light most favorable to the People, warrants the conclusion that each of the defendants participated in the pattern of criminal activity. (PL §460.20[2]).

c. Evidence as to the Principals

Defendants argue that the liability of the JSC principals, defendants Sorbara and Markowitz, cannot be based upon a Pinkerton theory (Pinkerton v. United States, 328 US 640, 647 [1946]), namely, that a co-conspirator may be held liable for offenses committed by another co-conspirator if those offenses are within the scope of the conspiracy, are in furtherance of it, and are reasonably foreseeable as a necessary or natural consequence of the conspiracy. Defendants further argue that it is inconceivable that the evidence before the grand jury established that defendants Sorbara and Markowitz actively participated in the manipulation of every stock in the indictment or in every transaction.

The People's theory of the case as to the liability of defendants Sorbara and Markowitz is not based on Pinkerton or any other conspiracy theory, however. Rather, the evidence presented to the grand jury showed that Sorbara and Markowitz, as principals of JSC, guided the overall scheme. They hired brokers and traders who would willingly participate in the schemes, decided which stocks would be involved, authorized and announced the scheme stock transactions and knew when they would take place. They also approved the transactions, resolved conflicts as to distribution of compensation from them, misrepresented their nature to regulators so as to protect them from detection and congratulated the brokers on their successful completion of them. When viewed in the light most favorable to the People, the evidence established a prima facie case from which the grand jury could rationally conclude that defendants Sorbara and Markowitz intentionally conducted or participated in the affairs of the criminal enterprise by soliciting, requesting, importuning or intentionally aiding and abetting other defendants in each and every criminal act within the alleged pattern of criminal activity. Accordingly, defendants' argument that the enterprise corruption count must be dismissed under Pinkerton as to defendants Sorbara and Markowitz fails, and their motion to dismiss for legal insufficiency on this ground is denied.

d. Evidence as to the Corporate Defendant

Defendants cite Cedric Kushner Promotions v. King Ltd., 533 US 158 (2001), for the proposition that a charged RICO enterprise cannot also be a RICO defendant, and urge that the same rationale pertains under New York's enterprise corruption law. The People respond that corporate entities have been recognized under OCCA as both the corrupted enterprise and a defendant, citing People v. A.S. Goldmen, 9 AD3d 283, 285 (1st Dept.), lv. denied, 3 NY3d 703 (2004).

Although New York appellate courts have yet to address the issue squarely, it seems clear from review of the existing enterprise corruption decisions that legitimate corporate entities have both lent their corporate form, hierarchy and operations to criminal enterprises which flourished within their corporate structure, and at the same time been prosecuted as one of the group of persons constituting the "criminal enterprise" for purposes of PL §460.10(3). (See, e.g., People v. Western Express, supra [corporate defendant convicted of enterprise corruption]; People v. A.S. Goldmen, supra [same]; People v. D.H. Blair, supra, 2002 WL 766119 at *2 [corporate defendant was also the legitimate corporate enterprise used "as a 'device for defrauding members of the investing public under the guise of running a legitimate securities firm,'" quoting People v. Forson, supra, at 29]; People v. Wakefield Financial Corp., supra, 155 Misc2d at 777 [corporate defendant among three securities firms and fifteen individuals found to have acted as a single criminal enterprise]).

The enterprise corruption statute does not define "person" as that term is used in the definition of "criminal enterprise" in section 460.10(3). Nonetheless, the statute must be read in light of other provisions of the Penal Law, as well as in the context of OCCA's own legislative history. There can be no doubt that a corporation may be guilty of an offense when, inter alia, "[t]he conduct constituting the offense is engaged in, authorized, solicited, requested, commanded, or recklessly tolerated" by an employee or officer of the corporation charged with the formulation of corporate policy or managerial supervision of subordinate employees. (PL §20.20[1],[2]). The grand jury heard evidence to that effect and was instructed in accordance with this provision. Further, the Penal Law defines a "person" to include "where appropriate, a public or private corporation, an unincorporated association, a partnership...." (PL §10.00[7]; see also People v. Newspaper and Mail Deliverers' Union of New York and Vicinity, 250 AD2d 207, 211 [1st Dept. 1998][relying on section 10.00(7) to construe enterprise corruption statute's class of "persons" subject to liability to include a labor union which was an unincorporated association]).

With respect to the legislative history, the Legislature's findings upon enactment of the New York's OCCA statute stated:

The money and power derived by organized crime through its illegal enterprises and endeavors is increasingly being used to infiltrate and corrupt businesses, unions and other legitimate enterprises.... Through such infiltration the power of an enterprise can be diverted to criminal ends.... Thus,...the concept of criminal enterprise should not be limited to traditional criminal syndicates or crime families, and may include persons who join together in a criminal enterprise...for the purpose of corrupting such legitimate enterprises....

(PL §460.00). In Newspaper and Mail Deliverers' Union, supra, 250 AD2d at 213-14, the First Department relied on the legislative goals of OCCA in concluding that the term "persons" should not be given an unduly restrictive meaning, particularly where the entity's structure and instrumentalities were the means by which all crimes alleged were carried out and the acts and intents of the individual defendants were the acts and intents of the entity, as well. There, as here, the entity within which the enterprise operated was also charged as a criminal defendant.

Cedric Kushner Promotions v. King Ltd., supra, is distinguishable, as it relates to whether a corporate entity may be named as a defendant in a civil RICO action. This court must follow the provisions and legislative history of the applicable New York statutory and case law as set forth above.

Accordingly, this court finds no basis to dismiss the enterprise corruption count as to the corporate defendant, JSC.

For all of these reasons, the defendants' motions to dismiss the count of enterprise corruption for legal insufficiency is denied.²⁴

3. Grand Larceny Counts

The People's theory is that each grand larceny count reflects the theft over time of the aggregate gross credit taken from a particular JSC customer in multiple transactions involving multiple securities. Defendants contend that the grand larceny criminal acts and counts must be dismissed, because a failure to disclose compensation is not a proper basis for a larceny offense, absent a duty to disclose. Defendants maintain that they had no duty to disclose the incentive compensation they received on the trades in question, both by virtue of Rule 10b-10 and because they had no discretion with respect to the execution of those trades.

Defendants further assert that to the extent that the grand larceny counts are based upon a theory of larceny by false pretenses, the charges require the making of a material false statement and cannot be based upon either an omission or a failure to disclose information, absent the existence of an affirmative duty which was breached by defendants, and that the evidence was insufficient to establish any such material false statement or affirmative duty breach in the course of the charged transactions.

Defendants aver that the total alleged illegitimate commissions received by them during the relevant period amounted to less than two percent of the firm's trades, and thus does not constitute information which is "clearly significant and must be disclosed accurately." (Szur [2d Cir.], at 211). Finally, defendants urge that allowing prosecution of the grand larceny counts on a larceny by false pretenses theory premised on defendants' alleged material omissions would render both the Martin Act and scheme to defraud statutes superfluous.

The People respond that those transactions involving "not held" orders gave price and timing discretion to the broker defendants. Because the brokers had such discretion, the People argue, they had a duty to disclose the incentive payments they were receiving at the expense of their clients. They contend that in any event the existence of such duty is not essential to establish the grand larceny counts.

The evidence as to the grand larceny counts supports the People's theory of a continuing theft from the particular individual client, based upon amounts the defendants charged the client as gross credits on the various scheme stock transactions in which that client was involved, over the period of time the client was a customer of JSC. As is permissible under established case law, the amounts wrongfully taken or appropriated from the client pursuant to a single intent and in execution of a common fraudulent scheme over the series of transactions have been aggregated and charged as a single larceny from that client. (People v. Buckley, 75 NY2d 843, 846 [1990]; People v. Rossi, 5 NY2d 396, 401 [1959]). The amount allegedly stolen with respect to each grand larceny count is the total of the gross credits received by defendants for trades handled for that particular customer.

The Penal Law permits conviction for larceny as broadly defined upon pleading and proof, regardless of which theory of larceny applies, and the People need not reveal which theory of larceny applies unless the larceny is from the person or by extortion, neither of which applies here. (People v. Ponnapula, 229 AD2d 257, 273 [1st Dept. 1997], lv. denied, 94 NY2d 951 [2000]). The evidence presented to the grand jury, viewed in the light most favorable to the People, was sufficient to allow the grand jury to charge defendants with each of the grand larceny counts on theories of by trepassory taking, embezzlement, trick, false pretense or false promise. Further, the grand jury was properly instructed as to each of these theories.

As the grand jury could reasonably have reached its conclusions based upon a theory other than larceny by false pretenses, there is no reason for this court to reach the question of whether an omission, or failure to disclose, could support such a charge. In any case, evidence was presented from which the grand jury could have found that under the circumstances, the broker defendants had a duty to disclose information which would have been material to the client's decision to enter into the transaction and breached that duty. Moreover, the discretion employed by the brokers on the not held orders, and their exercise of de facto control and dominance in the trading relationship with the client (Szur [2d Cir.], 289 F3d at 210; United States v. Chestman, 947 F2d 551, 569 (2d Cir. 1991), cert. denied, 503 US 1004 [1992]), provided support for a finding of a fiduciary relationship between the broker defendants and their clients.

The grand jury also heard evidence that defendants failed to disclose the true facts concerning the relevant research as to the scheme stocks; their market stability and suitability for the investors to whom their purchase was being recommended; the false entries defendants were making in the clients' records with the firm to conceal the unsuitability of the investments for the clients; the true prices at which the stocks were trading at the time defendants received the customers' orders and could have executed the trades; and the fact that artificial delays in the executions of trades were effected solely to enable defendants to realize greater profits and commissions from the trades by driving up the prices of the stocks before putting in customers' orders for execution, while the clients paid correspondingly excessive premiums for the transactions. The fact that the trade confirmation report sent to the client was characterized as reflecting the broker's commission on the trade, when, in fact, it understated it, could have been determined, on the facts presented here, to have constituted an affirmative misstatement as to that compensation.

Notwithstanding defendants' claims that industry custom and regulation did not impose any duty on them to disclose all aspects of their compensation to their clients, and that the practice here was akin to the well-established practice of non-disclosure of remuneration for order flow payments authorized by Rule 10b-10 (17 CFR §240.10b-10), the evidence before the grand jury amply justified the conclusion of a substantial likelihood that disclosure of the withheld information would have been viewed as material by an objective reasonable investor in the victim's position when deciding to follow her broker's recommendation to engage in a trade in the particular scheme stock. Thus, a duty of disclosure on the part of the broker defendants was established by the evidence, along with a basis for a finding of false pretense by omission.

The fact that the trades in question involved less than two percent of the firm's business does not render the transactions immaterial. (See Western Express, supra [alleged criminal transactions constituted no more than five percent of company's transactions]). Indeed, the undisclosed amounts allegedly stolen from each of the clients were in the thousands of dollars, and, according to their testimony before the grand jury, were material to them.

Finally, prosecution of grand larceny by false pretenses on the evidence presented here does not render the Martin Act charges superfluous. As eloquently stated by Justice Fried in D.H. Blair, in pertinent part:

There are significant differences between these statutes. The felony thresholds are different: larceny requires an amount in excess of $1000, while the securities fraud statute specifies $250.... Furthermore, a false pretenses larceny involving an affirmative misrepresentation requires reliance, which is not required in a fraud case. Finally, among the differences between the statutes [is the fact that]...the Martin Act imposes liability on a corporation for acts of its employees even if they are not "high managerial agents"....

(D.H. Blair, supra, 2002 NY Slip Op. 50152(U), at 50-51).

Accordingly, upon review of the evidence presented to the grand jury in the light most favorable to the People, the court finds legally sufficient evidence to support each of the criminal acts and counts charging grand larceny in the second degree and grand larceny in the third degree.***²⁵

IV. CONCLUSION

For the foregoing reasons, it is now hereby

ORDERED, that the motion to inspect the grand jury minutes is granted; and it is further

ORDERED, that the motions for release of the grand jury minutes to defendants for their inspection are denied; and it is further

ORDERED, that upon this court's examination of the grand jury minutes and the evidence presented before the grand jury, the following Criminal Acts and Counts are dismissed as to all defendants:

(A)Criminal Acts 58, 59, 113, 114 and 115, each charging falsifying business records in the first degree (PL §175.10), due to a defect in the grand jury proceedings on quorum grounds, pursuant to CPL §§190.25(1), 210.20(1)(c) and 210.35(3); and

(B) Criminal Act 14 and Count 12, both charging securities fraud under the Martin Act (GBL §352-c[5]), on grounds of legal insufficiency, pursuant to CPL §210.20(1)(b); and

(C) Counts 59, 62, 65, 72, 87 and 88, each charging falsifying business records in the first degree (PL §175.10), on grounds of lack of geographic jurisdiction pursuant to CPL §20.40(1); and it is further

ORDERED, that the following criminal acts and counts, each charging securities fraud under the Martin Act (GBL §352-c[6]), are dismissed on the ground of legal insufficiency pursuant to CPL §210.20(1)(b), as to the following defendants:

(A) as to defendant Craig Shapiro, Criminal Acts 71, 86 and 93, and Counts 56, 61, 67 and 82; and

(B) as to defendant John Moraitis, Criminal Acts 97, 124, 133 and 135, and Counts 52, 69 and 84; and

ORDERED, that the motion of defendant Orthos to dismiss the indictment as defective for lack of specificity as to date of the crime pursuant to CPL §200.50(6) is denied; and it is further

ORDERED, that defendants' joint motion for dismissal of the enterprise corruption count in the interest of justice pursuant to CPL §210.40(2) and the motion of defendant Michael Tripodi for dismissal of the indictment in the interest of justice pursuant to CPL §§210.40(1)and 210.40(2) are both denied; and it is further

ORDERED, that the motion of defendant John Micciola pursuant to CPL §710.30(3) to preclude introduction at trial of statement and identification evidence is granted, and should the People seek to use any statement made by the defendant to impeach his credibility, should he testify at trial, a voluntariness hearing pursuant will be held no less than two weeks prior to trial; and it is further

ORDERED, that hearings on the Sandoval (People v. Sandoval, 34 NY2d 371 [1974]) and CPL §240.43 motions of defendants Tripodi, Micciola, Rathgeber, Shapiro and Raspa will be held no later than two weeks prior to trial; and it is further

ORDERED, that with respect to the motions of defendants Micciola and Rathgeber for disclosure and preclusion of Molineux (People v. Molineux, 168 NY 264 [1901]) evidence or, alternatively, for a hearing pursuant to People v. Ventimiglia, 52 NY2d 350 (1981), those motions are granted to the extent that any such applications contemplated by the People should be served on defendants and submitted to the court in writing not less than 30 days before trial, with any hearings to be held not less than two weeks before trial.

Decision on the motion to controvert the search warrants has been reserved.

In all other respects, defendants' motions to dismiss and for other relief have been considered and are denied.

The foregoing constitutes the decision and order of the court.

1. Defendants' joint motion has been designated "D2" by the court in accordance with the court's previous pretrial order. In addition, certain individual defendants have filed motions on their own behalf seeking dismiss of the indictment and other relief. Their motions have been designated as follows: Peter Orthos (DPO1), James Rathgeber (DJR1), John Micciola (DJM1), Craig Shapiro (DCS1) and Michael Tripodi (DMT1). This decision and order will address the issues raised in all six motions with the exception of defendants' joint motion to controvert the search warrants, which will be addressed in a separate decision and order.

2. Defendant Charles Raspa, by his newly appearing counsel, has also moved for such relief.

3. Upon the election of District Attorney Cyrus Vance, Jr. in November 2009, defendants informally raised the possibility of a conflict due to his brief representation of defendants Sorbara, Markowitz and JSC in 2005 in connection with the DANY search warrant executions. Thereafter, on January 10, 2010, defendants moved to disqualify Vance and the People moved for appointment of a special district attorney pursuant to County Law §701. After discussion with the Office of the Chief Administrative Judge, this court referred both motions to the Chief Administrative Judge, who assigned them to the Deputy Chief Administrative Judge for decision. On March 18, 2010, the Deputy Chief Administrative Judge issued an order appointing the Attorney General as a special district attorney in this case and cross-designating four assistant district attorneys as special assistant attorneys general (SAAGs). After defendants filed and served an Article 78 petition seeking to prohibit the Deputy Chief Administrative Judge's appointment of the Attorney General as a special district attorney and the four assistant district attorneys as SAAGs, the DANY sought and obtained from Governor David A. Paterson a letter appointing the Attorney General as a special prosecutor in this case pursuant to Executive Law §63(2). Abandoning their pursuit of Article 78 relief, defendants then moved, on May 20, 2010, before this court to disqualify the DANY staff, the Attorney General and the Office of the Attorney General (OAG) from prosecution of this case. On September 16, 2010, this court, in a written decision (D-4), held that defendants had not shown that appointment of members of the DANY staff as SAAGs had created "actual prejudice arising from a demonstrated conflict of interest...." (People v. English, 88 NY2d 30, 34 [1996]), or that the OAG had been tainted as the result of improper conduct by the DANY staff and, for those reasons, denied the motion.

4. Section II.B is omitted for purposes of publication.

5. Defendants have not challenged this court's jurisdiction over the enterprise corruption count, which is governed by its own jurisdictional statute, (PL §460.40[1] [enterprise corruption may be prosecuted "in any county in which the principal place of business...of the enter-prise was located at the time of the offense...."]), apparently because JSC's principal office was located in Manhattan. With respect to the out-of-county criminal acts set forth in that count, it bears noting that PL §460.40(1) includes no requirement that the pattern acts comprising the enterprise corruption count must have been committed in the county in which that count is being prosecuted, as the offense in question is the count of enterprise corruption. (People v. Meyers Pollock Robbins, Inc., NYLJ, Apr. 5, 2001 at 20 [Sup. Ct. NY County 2001][Fried, J.][Meyers Pollock]; see CPL §200.40[1][d][iii] [permitting joinder of pattern acts which would not be "prosecutable, when standing alone, by reason of...lack of geographical jurisdiction.").

6. "Order flow payments" are a form of compensation paid to registered securities representatives for routing their customers' orders for execution to particular wholesale dealers or other market makers in the subject securities. (Guice v. Charles Schwab & Co., 89 NY2d 31, 37 [1996], cert. denied, 520 US 118 [1997]).

7. Section 28(a) of the SEA provides that the SEA's rights and remedies are "in addition to any and all other rights and remedies that may exist at law or in equity," and that the SEA does not "affect the jurisdiction of [state securities regulatory bodies] over any security or any person insofar as it does not conflict with the provisions of this title or the rules and regulations thereunder." (15 USC §78bb[a]).

8. For this same reason, other cases cited by defendants in which state common law claims challenging the receipt of order flow payments by a broker-dealer were dismissed on preemption grounds are distinguishable, both from Schulman and from the instant case. (See, e.g., McKey v. Charles Schwab & Co., Inc., 67 CalApp4th 731 [CalApp2Dist. 1998][citing Guice, court found state law claims challenging order flow payments could undermine federal regulation of such payments]).

9. The defendants in Szur (SDNY) were convicted after a trial by jury. Their convictions were affirmed in United States v. Szur, 289 F3d 200 (2d Cir. 2002)[Szur (2d Cir.)]

10. Defendants concede that they neither challenge the legal sufficiency of the pattern acts, nor argue that the indictment contains multiplicitous or duplicitous counts. Rather, defendants' argument addresses the manner in which the pattern acts in the enterprise corruption count are pleaded.

11. For purposes of this argument, defendants adopt the reading of PL §460.10(4)(b) employed by the court in People v. D.H. Blair & Co., Inc., 2002 WL 766119 (Sup. Ct. NY County Jan. 29, 2002)(D.H. Blair), that in contrast to its intention to incorporate the contemporaneity prong of the previous prosecution statute (CPL §40.10[2][a]) into the enterprise corruption law's definition of pattern of criminal activity, the Legislature did not intend to incorporate its relatedness of purpose prong (CPL §40.10[2][b]) into the text of PL §460.10[4][b]). (See discussion at section II.E.2, infra).

12. In contrast to Colletti, in Meyers Pollock the court dismissed a pattern act on the ground of legal insufficiency, noting that it was narrowing, rather than expanding or changing, the theory presented to the grand jury and of which the defendants had received notice. The court did not consider dismissal of the pattern act as improperly pleaded, as defendants urge this court to do here.

13. In any case, to the extent that any pattern acts are improperly pleaded, the court can dismiss them during trial, or tailor the verdict sheet and jury instructions accordingly. Such a step would not raise the concerns present in Colletti, as the People's theory before the grand jury would be narrowed, not broadened, by such action. (See note 12, supra).

14. Section II.C.5 is omitted for purposes of publication.

15. Section II.D.1 is omitted for purposes of publication.

16. BRASS (Broker Realtime Automated Security System) is the computerized system by which JSC recorded and tracked the trading activity it conducted.

17. In this regard, defendant Tripodi asserts that the People, while conceding that "insides" are legitimate under certain circumstances, have failed to delineate what those circumstances are, and that he should not be the subject of criminal charges for engaging in a lawful practice. In D.H. Blair, the Court rejected a similar argument, concluding that even if the undisclosed and excessive commissions and "specials" in that case were not necessarily criminal in and of themselves, they represented a part of the evidence that supported the defendants' fraudulent scheme. (D.H. Blair, supra, 2002 WL 766119, at *16, n.6). Similarly, here, the grand jury evidence pertaining to undisclosed commissions, gross credits and insides is a part of the overall evidence of defendants' alleged fraudulent scheme, when viewed in light of the testimony and other evidence presented to the grand jury.

18. FRE 1006 provides, in pertinent part:

The contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at reasonable time and place.

19. Discovery of the documents admitted before the grand jury and the summary charts was provided to defendants shortly after their arraignments.

20. Sections II.D.3, II.D.4, II.D.5, II.D.6, II.D.7 and II.D.8 are omitted for purposes of publication.

21. Section II.E.1 is omitted for purposes of publication.

22. This case is unlike People v. Scarantino, supra, where the counts of grand larceny and falsifying business records emanated from a single incident of filing a false insurance claim, thereby constituting only one criminal transaction, and being legally insufficient to establish an enterprise corruption count. (See discussion in section II.C.4, supra). Rather, this case is more like D.H. Blair, in which the court found the existence of ten separate schemes to defraud, each relating to a different security and constituting a separate criminal transaction, sufficient to establish a pattern of criminal activity for evidentiary purposes.

23. The court is cognizant of the fact that the GBL §352-c(5) and criminal possession of stolen property criminal acts are based upon each of the 19 particular scheme stocks, while the GBL §352-c(6) and grand larceny criminal acts are based upon conduct with respect to one of the 24 named customers. Therefore, in reviewing the pattern acts alleged as to each defendant (without having made any determination of the necessity for so doing), this court has taken care to avoid double-counting elements of the criminal acts, as requested by defendants. Thus, I have not included, among the three required pattern acts for any defendant, any GBL §352-c(6) or grand larceny criminal acts which could have been comprised within any GBL §352-c(5) or stolen property criminal act in the pattern, and vice versa.

24. This court has reviewed each of the pattern criminal acts included in the enterprise corruption count and, with the exceptions noted at the outset of this decision, has found that all of the criminal acts are supported by legally sufficient evidence as to each of the defendants charged.

25. Sections II.E.4, II.E.5, II.F.1, II.F.2, II.F.3, II.G, III.A, III.B, III.C and III.D are omitted for purposes of publication.

Defendant's Motion for Resentencing Based on Drug Law Reform Act Denied

Brian Perskin — Wed, 11 May 2011 16:04:00 GMT

The People of the State of New York v. Felix Suya, Defendant, 4930-1997

Justice Richard Lee Price

Decided: April 22, 2011

DECISION AND ORDER¹

By motion submitted November 18, 2010, defendant moves pursuant to CPL 440.46 (DLRA 3) for resentencing in accordance with PL 60.04 and 70.70 to a determinate term of six years imprisonment with one and one-half years post-release supervision. The District Attorney, while not contesting defendant's eligibility for such relief, strenuously opposes his request based on his extensive criminal record and poor institutional record of confinement.

After conducting a hearing on defendant's motion and considering the oral arguments made by both the defendant and the People, as well as having reviewed the parties' respective papers submitted in support, prior court proceedings and documents on file, this court denied defendant's motion. This expands that decision.

Background and Procedural History

On July 22, 1997, officers assigned to the New York City Police Department's Narcotics Division were conducting a short-term undercover operation for the purchase of heroin. At approximately 12:45 p.m. in the area of 1967 Marmion Avenue, Bronx County, the defendant, while acting with two other male individuals, sold a quantity of heroin to an undercover police officer. Defendant was arrested and charged by indictment with criminal sale of a controlled substance in or near school grounds (PL 220.44 [2]) and criminal possession of a controlled substance in the third degree (PL 220.16 [1]). On November 24, 1998, a jury convicted him of both offenses.

On May 17, 1999, this court adjudicated the defendant a second felony offender and entered judgment against him, imposing two indeterminate concurrent terms of twenty-two years imprisonment with a mandatory minimum period of eleven years. The basis of that adjudication was a judgment of conviction entered on January 9, 1997, for attempted robbery in the second degree (PL 110/160.10 [1]), a class D violent felony offense. ²

On June 13, 2002, the Appellate Division, First Department, affirmed defendant's conviction (People v. Suya, 295 AD2d 173 [1st Dept 2002]), but modified his sentence to an indeterminate term of twelve years imprisonment with a mandatory minimum period of six years. On September 8, 2002, the Court of Appeals denied defendant's application for leave to appeal (People v. Suya, 98 NY3d 732 [2002] [Table]).

Subsequently, defendant obtained several additional felony convictions. On May 10, 1999, he was convicted of two counts of bail jumping in the first degree (PL 215.57) and sentenced to two indeterminate concurrent terms of six years imprisonment with a mandatory minimum period of three years.

On December 15, 1999, another judgment of conviction was entered against this defendant for robbery in the second degree (PL 160.10 [2][a]), a class C violent felony offense, and criminal sale of a controlled substance in the fifth degree (PL 220.31). This court imposed two concurrent determinate terms of imprisonment, five years and four years respectively.

While incarcerated, the defendant obtained yet another felony conviction for promoting prison contraband in the first degree (PL 205.25 (2)]. A sentence of three years imprisonment with a mandatory minimum period of eighteen months was imposed.

Drug Law Reform Act

The Drug Law Reform Act (DLRA), was enacted in response to the sentencing policies under New York's Rockefeller Drug Laws (L 2004, ch 738). Such reform was intended to ameliorate the sentences imposed on individuals who had committed Class A-I and Class A-II drug offenses (DLRA 1 and DLRA 2, respectively). Subsequently, in 2009, the Legislature enacted the DLRA 3, which extended sentencing relief to those convicted of Class B, C, and D drug offenses. Under the DLRA 3, a qualified applicant convicted of a Class B drug offense is entitled to a reduced determinate sentence in accordance with sections 60.04 and 70.70 of New York's Penal Law (see CPL 440.46 [1]) if: 1) he is in the custody of the Department of Correctional Services; 2) has been convicted of a class B felony offense as defined in article 220 of the Penal Law; 3) committed the crime prior to January 13, 2005; 4) is serving an indeterminate sentence with a maximum term of more than three years; and 5) has not been convicted of an exclusion offense as defined in CPL 440.46 (5).

Here, the defendant: 1) is currently in the custody of the New York State Department of Correctional Services at Attica Correctional Facility; 2) was convicted of criminal sale of a controlled substance in or near school grounds (PL 220.44 [2]) and criminal possession of a controlled substance in the third degree (PL 220.16 [1]), both class B felonies; 3) committed such crimes on July 22, 1997; and, 4) is currently serving an indeterminate term of imprisonment with a maximum period of six years. This court finds, however, that defendant has been convicted of an exclusion offense as defined in CPL 440.46 (5), thus rendering him ineligible for resentencing under CPL 440.46(1).

CPL 440.46 (5)(a)

CPL 440.46 (5) states that "[t]he provisions of this section shall not apply to any person who is serving a sentence on a conviction for or has a predicate felony conviction for an exclusion offense." Pursuant to CPL 440.46 (5)(a), an "exclusion offense" is a crime for which the person was previously convicted within the preceding ten years, excluding any time during which the offender was incarcerated for any reason between the time of commission of the previous felony and the time of commission of the present felony, which was: (i) a violent felony offense as defined in section70.02 of the penal law (CPL 440.46 [5][a]).

Initially, this court notes that the look-back period language, "a crime for which the person was previously convicted within the preceding ten years," is far from clear and unambiguous. When considering the meaning of a statute that is less than clear and unambiguous, a court would ordinarily examine its legislative history. In this case, however, CPL 440.46 was enacted without any such historical record (see People v. Brown, 26 Misc3d 1204(A), 2010 WL 9928 [Sup Ct, NY County 2010, Conviser, J.] [observing bill jacket for the DLRA 3 contained only the bill itself, due to its enactment as part of budget bill, and lacked the typical submissions from advocacy groups, government agencies and legislators]). As such, the legislative history offers no insight as to when the look-back period should begin, and this court must look elsewhere to decipher the Legislature's intent. Additional insight into the intentions of the Legislature can be ascertained, however, by examining the context in which CPL 440.46 was drafted.

As part of a series of statutory reforms designed to ameliorate the overly harsh punishments handed out to low level drug offenders under New York's Rockefeller Drug Laws, the New York Legislature enacted the DLRA 3. The Legislature enacted these reforms because of the belief that low level drug offenders punishments outweighed their crimes and that research suggested better, more humane, less costly alternatives to incarceration existed. Considering the DLRA in its entirety, it is clear that its very spirit of the DLRA 3 is to reduce the sentences of low level, nonviolent felony drug offenders. Therefore, "it is appropriate to resolve any ambiguity [in the language CPL 440.46 (5)(a)] in favor of the more ameliorative, rather than the more punitive, construction" (People v. Danton, 27 Misc3d 638, 644 [Sup Court, NY County 2010, J Kahn]).

Since similar look-back language appears in the recidivist laws codified in PL 70.06, it has been argued that the DLRA look-back language be applied in the same manner. Such reasoning is flawed, however, because the purpose of the recidivist laws is entirely in conflict with the ameliorative purpose of CPL 440.46. The DLRA statutes were enacted to reduce, rather than to extend, the eligible defendants sentence.

To illustrate, an individual convicted of a Class B felony drug charge nine years and 364 days after having been convicted of a violent felony offense would be precluded from applying for a reduced sentence under the DLRA 3, whereas the same defendant convicted of that crime two days earlier would be entitled to do so. While this result makes sense in the context of the recidivist statutory scheme, since the purpose of those statutes is to impose more severe punishment on persons who continue to commit felonies relatively soon after having been subjected to punishment for similar felonious conduct, the same cannot be said of the DLRA statutory scheme. In the DLRA 3 context, "[a]dopting an interpretation of the statute which permits defendants to age into eligibility for resentencing is more in keeping with the overall purposes of the DLRA 3, as well as with those of the DLRA and DLRA 2, by allowing prisoners to distance themselves from their past misbehavior and demonstrate progress in rehabilitation" (Danton at 644).

Additionally, CPL 70.06 defines a predicate felon as one convicted of a felony within the previous ten years of the date of commission of the instant felony (PL 70.06 [b][iv] [McKinney2007] [emphasis added]). Presumably, the Legislature was aware of the language in PL 70.06,and considered such language when drafting CPL 440.46 (5). The absence of such language in CPL 440.46 (5)(a), compared to the express language in PL 70.06, further strengthens the conclusion that the look-back period should commence from the day the resentencing application is filed, not the date on which the instant felony was committed. While this court need not seek additional support for its conclusion, several lower courts have indeed interpreted CPL 440.46 (5)(a) as such. The court in People v. Brown, (26 Misc3d at1204[A]), stated that "[t]here are valid linguistic arguments for why the reference point for the ten year lookback provision might be read as the People contend....But no amount of verbal parsing can overcome the plain fact that the most natural construction of the law is to read its reference point as the date of a resentencing application" (Brown at 1208[A]).

The same conclusion was reached in People v. Roman (26 Misc3d 784 [Sup Ct, Bronx County 2009, Mogulescu, J.]) and People v. Jerry Williams (Sup Ct, NY County, December 23, 2009, Pickholz, J.]). In Williams, Justice Pickholz stated, "[a]lthough it is far from impossible to read the statute in the manner [the People] argue, it requires willful effort to do so. The more natural reading of [CPL 440.46(5)(a)] is that the ten-year period looks back from the present, i.e., the date of the filing of the application" (id. at 11). In construing CPL 440.46 (5)(a), the Danton court followed the reasoning set forth in both Brown and Williams (Danton, 27 Misc3d 638).

That court, after a lengthy and well reasoned analysis, stated the natural and obvious meaning of within the preceding ten years is the ten-year period immediately preceding the date of filing of the resentencing application (id at 642).

In fact, courts have generally not, as of yet, accepted an alternative interpretation of the CPL 440.46 (5)(a). As such, this court finds no basis to depart from the reasoning articulated in Brown, Williams and Danton, and agrees that the natural reading of CPL 440.46 (5)(a) requires this court to measure the look-back period from the date on which the resentencing application is filed. In this regard, then, defendant does not have an exclusion offense. The CPL 440.46 (5) analysis, however, does not end there.

CPL 440.46 (5)(b)

For purposes of CPL 440.46 (5)(b), an "exclusion offense" is

a second violent felony offense pursuant to section 70.04 of the penal law or a persistent violent felony offense pursuant to section 70.08 of the penal law for which the person has previously been adjudicated (CPL 440.46 [5][a]).

PL 70.04 (1)(a) defines "a second violent felony offender" as

a person who stands convicted of a violent felony offense as defined in subdivision one of section 70.02 after having previously been subjected to a predicate violent felony conviction as defined in paragraph (b) of this subdivision (PL 70.04 [1][a]).

Pursuant to PL 70.04 (1)(b), "a predicate violent felony conviction" must have been a violent felony offense as defined in 70.02 (1), for which the sentence must have been imposed before commission of the present felony and not more than ten years before commission of the felony, subject to the tolling provision specified in subdivision (v) that exempts any period of time during which the defendant was incarcerated (PL 70.04 [1][b]).

Here, as noted above, a judgment of conviction was entered against defendant on January 9, 1997, for attempted robbery in the second degree, a class D violent felony offense pursuant to PL 70.02 (1)(c). Thereafter, on July 22, 1998, defendant committed the offense of robbery in the second degree, a class C violent felony offense pursuant to PL 70.02 (1)(b). On December 15, 1999, a judgment of conviction was entered against him for that offense. Since the 1999 conviction was obtained within ten years of the 1997 predicate violent felony conviction, it indeed constitutes his second violent felony offense in accordance with PL 70.04 (1)(a).³ The question, then, is whether it also constitutes an exclusion offense for purposes of CPL 440.46 (5)(b). This court finds that it does.

Defendant claims his 1999 robbery conviction is not an exclusion offense "because it did not precede [his] conviction on the instant drug offenses."⁴ Relying on the language contained in CPL 440.46 (5)(a) that an "exclusion offense" is "a crime for which the person was previously convictedwithin the preceding ten years" (CPL 440.46 [5][a] [emphasis added]), he argues that since the 1999 robbery occurred after the commission, conviction, and sentence on drug offense, it is not within the ten-year look-back period and, therefore, does not constitute an exclusion offense. Notwithstanding that the District Attorney neither opposed nor addressed defendant's claim, this court disagrees.

While courts have widely interpreted the ten-year look-back language as commencing on the date a DLRA motion is filed, few courts have analyzed or interpreted the meaning of "previously convicted." Defendant asserts it ought to be understood as a felony conviction obtained prior to the conviction date for which resentencing is sought. Such an interpretation, however, squarely conflicts with the purpose of the look-back language. DLRA relief was intended to allow a defendant to age into resentencing eligibility by "distanc[ing] themselves from their past misbehavior and demonstrate progress in rehabilitation" (Danton at 644). Crimes, particularly violent ones, committed subsequent to the drug offense for which resentencing is sought hardly demonstrates such progress. Thus, as a matter of statutory interpretation, "it would be inconsistent for this court to find that the time of the filing of defendant's application controls the 10-year look-back period for eligibility, but then not consider defendant's violent felony offense conviction, which falls within that 10-year period, just because it occurred subsequent to the drug charge" (People v. Burnett, 28 Misc3d 928, 933 [Sup Ct, Queens County 2010, Kron, J.]). "Previously convicted" must therefore be understood as any conviction obtained prior to the date on which defendant filed his motion, regardless of whether such conviction was occurred after the drug offense.

Defendant's claim must also be rejected because CPL 440.46 (5)(b) contains no ten-year look-back eligibility provision. CPL 440.46 (5)(b) simply and clearly defines an "exclusion offense" as "a second violent felony offense...for which the person has previously been adjudicated" pursuant to either PL 70.04 or 70.08. Those sections, of course, merely provide that a defendant will be adjudicated a second violent offender when two violent felony offenses were committed within ten years of each other subject to the tolling of any periods of incarceration. To be sure, nothing contained in CPL 440.46 (5)(b) can be reasonably construed as requiring that such violent felony convictions must have preceded the drug offenses for purposes of determining DLRA eligibility (see CPL 440.46 [5][b]).

Since the 1999 judgment of conviction was obtained within two within ten years of the attempted robbery, the defendant is a second violent felony offender in accordance with PL 70.04. As such, this court finds that the 1999 conviction is indeed an "exclusion offense," thus rendering defendant ineligible for CPL 440.46 relief.

Merits of Defendant's Motion

Eligibility aside, if this court were to entertain defendant's application it would nevertheless be denied. Generally, the court "shall" grant a DLRA application "unless substantial justice dictates that the application should be denied" (L 2004, ch 738, §23; see also People v. Arana, 32 AD3d 305, 307 [1st Dept 2006]). Here, defendant's criminal history institutional record of confinement require such denial.

Defendant's Criminal History

Defendant has an extensive criminal history. Since his conviction for the drug offenses that are the subject of this application, defendant has obtained seven convictions, five of which are felonies.⁵ In addition to the 1999 robbery conviction that rendered him a second violent felony offender, the defendant was convicted of two counts of bail jumping in the first degree (PL 215.57), criminal sale of a controlled substance in the fifth degree (PL 220.31), and, while incarcerated, promoting prison contraband in the first degree (PL 205.25 [2]).

Defendant's Institutional Record of Confinement

While in prison, defendant has accrued forty-eight disciplinary incidents, including several violations for fighting, assaults on staff personnel, drug use, harassment and possession of contraband. In fact, during his period of incarceration, the defendant has spent 2,197 days, or more than six years, in the Special Housing Unit (SHU) for disciplinary infractions. Even when enrolled in or attending institutional programs such as the GED and Alcohol and Substance Abuse Treatment (ASAT), he was repeatedly removed for disciplinary reasons.

Although it is commendable that the defendant eventually earned his GED and has improved his reading level, his continued course of criminal conduct, even while incarcerated, and obstreperous institutional behavior hardly demonstrates an attempt to distance himself from past misbehavior or progress in rehabilitation." Accordingly, substantial justice dictates that the defendant's application would nevertheless have been denied, even if it had been considered.

Defendant's motion for resentencing pursuant to CPL 440.46 is therefore denied.

This constitutes the decision and order of the court.

1. This court gratefully acknowledges the assistance of Peter Kapitonov, a New York Law School student and chambers intern, who assisted in the preparation of this decision.

2. This court imposed a term of five years probation with six months imprisonment.

3. This court notes the irrelevance of whether a defendant is actually sentenced as a predicate violent felon in determining a CPL 440.46 motion. A "'predicate felony conviction' has its natural meaning, and includes an earlier felony conviction, regardless of whether the defendant had been previously adjudicated a predicate felon based upon that conviction" (People v. Danton, 27 Misc3d 638, 652 [Sup Court, NY County 2010]). Accordingly, as long as the defendant was convicted of two violent felonies in accordance with PL 70.04, such convictions qualify as second violent felony convictions for purposes of CPL 440.46 (5)(b), even if the defendant was not sentenced as such.

4. See page 9, paragraph 17, of defendant's affirmation in support of motion for DLRA resentencing.

5. Defendant also sustained two misdemeanor convictions, criminal possession of a controlled substance in the seventh degree (PL 220.03) and attempted petit larceny (PL 110/155.25).

Warrantless Entry is Justified Due to Pool of Blood and Concern for Protection of Life; Warrantless Seizure of Ballistics Evidence in Plain View Thus Allowed

Brian Perskin — Wed, 11 May 2011 14:49:00 GMT

The People of the State of New York, Plaintiff v. RG, Defendant, 4023-09

Justice Matthew J. D'Emic

Decided May 2, 2011

DECISION AND ORDER

Defendant is accused of attempted murder in the shooting of his girlfriend. The defendant moves to suppress evidence found in his apartment and contends the police lacked reasonable cause to arrest him. A combined Dunaway and Mapp hearing was held before the court. Testifying credibly at the hearing were Police Officer Brendan Sheehan, Detective Gregory Barrett and Lieutenant Robert Ortlieb. Also testifying at the hearing was the defendant's mother, EB.

FINDINGS OF FACT

On April 7, 2009, Lieutenant Ortlieb was working in the 67th precinct. At about 11:30 that night he received a call from his sergeant alerting him to a shooting in the vicinity of East 45th Street and Church Avenue in Brooklyn. He also imparted information that a victim of the shooting was being treated at Kings County Hospital.

The lieutenant immediately went to 376 E. 45th Street and observed blood in front of the house with drops of blood continuing up the stairs to the second floor apartment. The front door of the house as well as the doors to the apartment were wide open. Fearing that additional victims may be in the apartment, Lieutenant Ortlieb and others searched the apartment for victims. None were found, although a live cartridge and a spent shell casing were seen on a dresser and on the floor, respectively.

For her part, EB said she owns 376 E. 45th Street and lives on the first floor. On April 8, 2009, she was awakened by her boyfriend who was hanging around outside when the police arrived. She testified that he let the police in her house and used the stairway from inside her apartment to gain entry to the defendant's apartment.

The evidence collection unit was called and Police Officer Brendan Sheehan responded to the location where he photographed and vouchered the ballistics evidence.

Early on the morning of April 8th, Detective Barrett was assigned to investigate the shooting. He went to Kings County Hospital but was unable to interview the victim because of her injuries until April 10th. At the time she told the detective that the defendant lived in the apartment and shot her after an argument about suspicions of her infidelity, in an apparent game of Russian roulette.

As a result of an anonymous tip, the defendant was arrested on April 30th.

CONCLUSIONS OF LAW

Dunaway

The police had reasonable cause to arrest the defendant since the victim, a known informant whose credibility could be assessed, identified him as the person who shot her (People v. Sanders, 79 AD2d 688).

Mapp

When moving to suppress physical evidence, the defendant has the burden of showing the police search was unlawful by a preponderance of the evidence.

In this case, Lieutenant Ortlieb and the other police officers entered the defendant's apartment after observing blood in front of the house and leading to the apartment. They knew a victim of a shooting at the location was in the hospital, but were concerned that others who may have been shot needed help. Detective Ortlieb could not tell whether the trail of blood led into or away from the apartment.

In such a case, the police would not be doing their job if they failed to enter the apartment. Although, thankfully, there were no additional victims in the apartment, police conduct cannot be viewed in hindsight. Knowing of a hospitalized shooting victim, seeing a blood trail, and observing all of the doors to the house and apartment wide open, certainly would give rise to a feeling of exigency in the heart of any reasonable person. Again, it is the job of the police to go in quickly faced with these facts.

Under these circumstances, the police belief that an emergency existed was objectively reasonable (People v. Arizona, 437 US 385; US v. Chipps, 410 F.3d 438). Since the warrantless entry into the apartment was necessary for the possible protection of life, the warrantless seizure of the ballistics evidence in plain view was lawful (People v. Etoll, 51 NY 2d 840).

Even if EB's memory of the facts is correct, it matters little for the hearing. Her boyfriend had authority to let the police in as an occupant of the residence, and EB did not object to their entry into the upstairs apartment in the house she owned. Nothing she said negates the police testimony that blood was pooled in front of her house and led either in or out. Protection of life was a concern either way, no matter which stairs were used.

For the reasons stated, the court finds that the defendant has failed to meet his burden of proving the police conduct was not lawful and the motion to suppress is denied.

This constitutes the Decision and Order of the court.

People v. Garcia, 4023-09, NYLJ 1202493067123, at *1 (Sup., KI, Decided May 2, 2011)

Defendant Had No Opportunity to Respond to Jury's Notes; New Trial Ordered

Brian Perskin — Tue, 10 May 2011 18:33:00 GMT

The People, etc., Respondent v. TL, Appellant, 1049/05

Before: Anitea R. Florio, J.P.; Thomas A. Dickerson; Cheryl E. Chambers; Plummer E. Lott, JJ.

Decided: May 3, 2011

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Aloise, J.), rendered October 7, 2008, convicting him of murder in the second degree (two counts), burglary in the first degree, attempted robbery in the first degree, and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is reversed, on the law, and the matter is remitted to the Supreme Court, Queens County, for a new trial.

The defendant, while acting in concert with another, allegedly invaded a home in Bellerose, Queens, and shot the victim, killing him.

At the defendant's trial, during deliberations, the jury sent six notes to the Supreme Court. On at least five of those occasions, the Supreme Court did not inform defense counsel of the contents of the notes and allow him the opportunity to suggest an appropriate response before recalling the jury. Instead, the Supreme Court disclosed the notes to the attorneys for the first time in front of the jury and immediately provided a formal response. Among other things, the jury asked for an explanation of the deliberation process, inquiring, "what [should we] base our decision on?" The Supreme Court responded, "[y]our God given sense and the evidence." In the last two communications, the jury indicated that it was deadlocked, and the Supreme Court responded each time by giving a truncated Allen instruction (Allen v. United States, 164 US 492). Although defense counsel objected to the substance of the Supreme Court's second Allen instruction, he never objected to the court's procedure in dealing with the jury's notes. The jury subsequently returned a verdict convicting the defendant of, among other things, murder in the second degree.

In People v. O'Rama (78 NY2d 270), the Court of Appeals set forth the procedure for handling communications from the jury in conformance with CPL 310.30. Whenever a substantive written jury communication is received by the court, it should be marked as a court exhibit and, before the jury is recalled to the courtroom, read verbatim into the record in the presence of counsel. After the contents of the inquiry are placed on the record, counsel should be afforded a full opportunity to suggest appropriate responses. The court should then ordinarily apprise counsel of the substance of the responsive instruction it intends to give so that counsel can seek whatever modifications are deemed appropriate before the jury is exposed to any potentially harmful information. Once the jury is returned to the courtroom, the communication should be read in open court. Although some deviations from this procedure may be warranted depending on the circumstances, where the court fails to fulfill its "core responsibility" under CPL 310.30 by depriving the defendant of meaningful notice of the communication or a meaningful opportunity to participate in the formulation of the court's response, the error affects the mode of the proceedings (People v. Kisoon, 8 NY3d 129, 134-135; see People v. O'Rama, 78 NY2d at 279-280; People v. Surpris,AD3d, 2011 NY Slip Op 02911 [2d Dept 2011). Thus, the error need not be preserved, and prejudice manifestly results (see People v. O'Rama, 78 NY2d at 279-280).

In People v. Cook (85 NY2d 928), the Court of Appeals was presented with a situation where a defendant was deprived of a meaningful opportunity to participate in the trial court's formulation of a response to a juror's note. There, after the court received a note from a single juror indicating that the jury was at an "emotional impasse" (id. at 930), defense counsel asked to approach the bench, but he was told that he could not do so and that he should not interrupt the court. Counsel continued to protest, noting that he had not seen the note. Without responding to counsel, the court read the note aloud and then instructed the jury to decide the case on the evidence, without letting emotions enter into its deliberations. After the jury left the courtroom, the Supreme Court and defense counsel engaged in a colloquy during which the court ruled that defense counsel had absolutely no right to suggest or comment on the response to the juror's note, and peremptorily directed counsel not to attempt to assert such a right. In concluding that the trial court had committed a mode of proceedings error, the Court of Appeals noted that O'Rama required that counsel have "the opportunity to be heard before the response is given," and that the trial court had "entirely deprived defendant of his right to have specific input into the court's response to the single juror's note" (id. at 931 [internal quotation marks omitted]).

Here, the Supreme Court's actions in repeatedly violating the procedure set forth in O'Rama by reading the jury notes for the first time in front of the jury and immediately providing a formal response were effectively the same as telling counsel that he had no right to participate in suggesting a response (see People v. Cook, 85 NY2d at 931). The purpose of CPL 310.30 and the O'Rama decision is to maximize the participation of counsel at a time when counsel's input is most meaningful, that is, before the court gives its formal response to the jury (see People v. Cook, 85 NY2d at 931; People v. O'Rama, 78 NY2d at 278). In that way, counsel can frame intelligent suggestions for the court's response and prevent the jury from being exposed to potentially prejudicial information (see People v. Kisoon, 8 NY3d at 134; People v. O'Rama, 78 NY2d at 278). The nature of the jury's inquiries made this a critical moment in the trial (see People v. Kisoon, 23 AD3d 18, 20, affd 8 NY3d 129). The jury was requesting clarification as to what to "base [the] decision on" and insight into how to continue its deliberations in the face of a deadlock. This was not a request for a mere ministerial readback of the elements of a charged offense or the viewing of an exhibit entered into evidence, where the court's response would be obvious (cf. People v. Starling, 85 NY2d 509, 516 [verbatim rereading of intent charge previously given on several occasions]; People v. Bryant, 82 AD3d 1114 [jury merely requested readbacks of certain testimony and of the definitions of certain crimes, and to be provided with certain evidence]; People v. Hinton, 61 AD3d 481 [noting that two of the inquiries required essentially ministerial responses that were not likely to require significant input]; People v. Snider, 49 AD3d 459 [notes simply called for readbacks of portions of the court's charge]; People v. Campbell, 48 AD3d 204 [rereading of the elements of the crimes]). Rather, the jury's notes called for a substantive response that required careful crafting after hearing argument from both the People and the defense (see People v. Kissoon, 8 NY3d at 134). Since defense counsel was not afforded the opportunity to provide suggestions, he was prevented from participating meaningfully at this critical stage of the proceedings (see People v. O'Rama, 78 NY2d at 279; People v. Surpris,AD3d, 2011 NY Slip Op 02911 [2d Dept 2011]).

Of course, even where the jury's request calls for a ministerial response, a court's failure to allow counsel the opportunity to participate meaningfully in formulating the court's response constitutes error, albeit one which requires preservation. Here, however, the error went to the mode of proceedings. Moreover, since the defendant was deprived of the opportunity to participate in formulating a response to the jury's notes, prejudice manifestly resulted (see People v. Kisoon, 8 NY3d at 135; People v. Cook, 85 NY2d at 931; People v. O'Rama, 78 NY2d at 279-280). Thus, despite defense counsel's failure to object to the Supreme Court's handling of the jury's notes, reversal is required.

The defendant's remaining contentions are academic in light of our determination.

Accordingly, the judgment is reversed and the matter must be remitted to the Supreme Court, Queens County, for a new trial.

FLORIO, J.P., DICKERSON, CHAMBERS and LOTT, JJ., concur.

ENTER:

People v. Lockley, 1049/05, NYLJ 1202493357870, at *1 (App. Div. 2nd., Decided May 3, 2011)

Charge of Disorderly Conduct Dismissed Because Allegations Do Not Support The Charge

Brian Perskin — Fri, 06 May 2011 15:20:00 GMT

The People of the State of New York v. Richard Sauerwald, Defendant, 2010NY064777

Judge Tamiko Amaker

Decided: April 7, 2011

DECISION AND ORDER

The defendant is charged with one count each of Resisting Arrest (PL §205.30) and Disorderly Conduct (PL §240.20[3]).

The defendant, in an omnibus motion, seeks: (1) Dismissal of the Accusatory Instrument for Facial Insufficiency, (2) Dismissal of the Accusatory Instrument for Lack of Probable Cause, (3) an Order to Compel a Bill of Particulars and Discovery, (4) a Huntley/Dunaway Hearing, and (5) a Mapp Hearing.

The defendant's omnibus motion is decided as follows:

DISMISSAL FOR FACIAL INSUFFICIENCY

The defendant moves to dismiss the accusatory instrument for facial insufficiency pursuant to Criminal Procedure Law §§170.30(1)(a) and 170.35. For the reasons stated herein, the defendant's motion is granted.

Pursuant to CPL §100.40(1), an information is sufficient on its face when it substantially conforms with the requirements of CPL §100.15, when the allegations provide reasonable cause to believe that the defendant committed the offense charged, and when the non-hearsay allegations establish, if true, every element of the offense charged and the defendant's commission thereof.

"'Reasonable cause to believe that a person has committed an offense' exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it." CPL §70.10(2). Importantly, this "prima facie case requirement is not the same as the burden of proof beyond a reasonable doubt required at trial," see People v. Henderson, 92 NY2d 677, 680 (1999). That is, "[s]o long as the factual allegations of an information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading." People v. Casey, 95 NY2d 354, 360 (2000); People v. Kalin, 12 NY3d 225 (2009).

The factual portion of the instant accusatory instrument alleges that on September 1, 2010 at about 3:03 a.m. on the Main Concourse of 1 Pennsylvania Plaza in the County and State of New York:

Deponent [Police Officer Thomas Sullivan] states that deponent observed the defendant at the above location, to wit a public place, shouting and screaming obscenities, screaming in substance: I CAN TAKE PICTURES. LEAVE ME ALONE. GET OUT OF HERE. I'LL KICK YOUR ASS. Defendant's conduct created a public disturbance/inconvenience in that it caused people to express annoyance and alarm.

Deponent further states that when deponent was placing the defendant under arrest for the offense(s) described above, the defendant: (i) twisted in towards the officer; and (ii) threw his arms up and down thereby making handcuffing difficult.

Disorderly Conduct

The defendant argues that the allegations in the instant accusatory instrument, if true, are insufficient to support a charge of Disorderly Conduct. This court agrees.

A person is guilty of Disorderly Conduct when "with intent to cause public inconvenience, annoyance, or alarm, or recklessly creating a risk thereof: (3) [i]n a public place, he uses abusive or obscene language, or makes an obscene gesture." For a charge of disorderly conduct to stand, it is necessary that the disruptive behavior "be of a public rather than individual dimension." People v. Munafo, 50 NY2d 326 (1980). That is, "a person may be guilty of disorderly conduct only when the situation extends beyond the exchange between the individual disputants to a point where it becomes 'a potential or immediate public problem.'" People v. Weaver, 16 NY3d 123 (2011), quoting People v. Munafo, 50 NY2d at 331. When determining whether a defendant's alleged actions carried public ramifications, the court must consider the following relevant factors: "the time and place of the episode under scrutiny; the nature and character of the conduct; the number of other people in the vicinity; whether they are drawn to the disturbance and, if so, the nature and number of those attracted; and any other relevant circumstances." People v. Weaver, 16 NY3d 123; People v. Munafo, 50 NY2d at 331.

The factual portion of the instant accusatory instrument contains no facts of an evidentiary character that, if true, support the allegation that the defendant intended to cause a public inconvenience, annoyance or alarm or recklessly created a risk thereof. While it is not required that members of the public be involved or react to the incident (see People v. Weaver, 16 NY3d 123), there is nothing in the facts alleged that would support a reasonable inference that the defendant's statements were intended to have any public impact or that they recklessly created a risk thereof. Rather, the allegations indicate that the defendant's statements were not directed at anyone other than Officer Sullivan. Although the accusatory instrument alleges that the defendant's statements "caused people to express annoyance and alarm," there are no specific allegations to support this conclusion by Officer Sullivan. That is, there are no factual allegations of an evidentiary nature describing how such people expressed their annoyance and alarm. See People v. Jackson, 26 Misc 3d 1230(A) (Crim Ct, New York County 2010). As such, the allegations, if true, fail to establish that the defendant's statements gave rise to "a potential or immediate public problem." People v. Munafo, 50 NY2d at 331.

Accordingly, as the allegations do not support a violation of any of the remaining subdivisions of Disorderly Conduct, the defendant's motion to dismiss this count is granted, and this count is dismissed.

Resisting Arrest

Additionally, the defendant claims that the allegations that he resisted arrest are insufficient because there are no allegations of an evidentiary character that, if true, would establish that his underlying arrest was authorized. As noted above, the allegations regarding the defendant's commission of Disorderly Conduct are facially insufficient, and the information is left without any allegations that would support the element that the defendant's arrest was authorized. As the Court of Appeals has repeatedly reminded us, "[i]t is an essential element of the crime of resisting arrest that the arrest be authorized and, absent proof that the arresting officer had a warrant or probable cause to arrest defendant for commission of some offense, a conviction cannot stand." People v. Alejandro, 70 NY2d 133, 135 (1987) (citations omitted); see People v. Peacock, 68 NY2d 675 (1986); People v. Parker, 33 NY2d 669 (1973). The defendant's motion to dismiss the count of Resisting Arrest is, thus, granted.

Because the defendant's motion to dismiss the accusatory instrument is granted, the court does not reach the defendant's remaining motions as they are moot.

The foregoing constitutes the opinion, decision and order of the court.

People v. Sauerwald, 2010NY064777, NYLJ 1202492925491, at *1 (Crim, NY, Decided April 7, 2011)

In Murder Case, Defendant's Motion for Reconsideration Denied

Brian Perskin — Tue, 03 May 2011 19:30:00 GMT

The People of the State of New York v. AS, Defendant, 04-1060

Judge Barbara G. Zambelli

Decided: March 30, 2011

The following papers numbered 1 to 8 read on this pro se motion pursuant to CPL Section 440.10:

PAPERS NUMBERED

Notice of Motion, Supporting Affidavit & Memorandum of Law 1-3

Affirmation in Opposition, Memorandum of Law & Exhibits A-I 4-6

Reply Affidavit with Exhibits A-D 7-8

CORRECTED DECISION & ORDER¹

Upon the foregoing papers it is ordered that this motion is denied.

On March 23, 2005, the defendant was convicted after a jury trial (Zambelli, J.) of murder in the second degree, criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree. On May 24, 2005, defendant was sentenced in this Court (Zambelli, J.) to an indeterminate term of imprisonment of twenty years to life on his murder conviction, to a determinate term of fifteen years plus five years post-release supervision on his criminal possession of a weapon in the second degree conviction and to a determinate term of seven years plus five years of post-release supervision on his criminal possession of a weapon in the third degree conviction, with all sentences to run concurrently with each other. On April 17, 2007, defendant's conviction was affirmed by the Appellate Division, Second Department (People v. Smith, 39 A.D.3d 773 (2009)). On June 23, 2008, the Court of Appeals denied defendant leave to appeal (People v. Smith, 10 N.Y.3d 939 (2008)), and on October 3, 2008, denied defendant's motion for reconsideration (People v. Smith, 11 N.Y.3d 835 (2008)). On May 20, 2009, the Appellate Division, Second Department denied defendant's motion to reargue his appeal, and on June 30, 2009, denied defendant's application for a writ of error coram nobis on the grounds of ineffective assistance of appellate counsel (People v. Smith, 63A.D.3d 1181 (2d Dept. 2009)). On October 28, 2009, the Court of Appeals denied defendant leave to appeal from that determination (People v. Smith, 13 N.Y.3d 829 (2009)).

Defendant brings this CPL §440.10 motion seeking to vacate his judgment of conviction on the ground of ineffective assistance of counsel. Defendant alleges that his trial counsel was allegedly ineffective because he "failed to argue a fundamental Fourth Amendment violation which occurred when defendant was arrested in Maryland by officers of the Mount Vernon Police Department without probable cause, without a warrant, and prior to the initiation of any criminal proceedings in the State of New York." (Defendant's Supporting Affidavit, ¶1). Defendant asserts that counsel failed to make such a motion even though he "knew or should have known that an extraterritorial arrest had been effected, that it was without any legal authority, and that a motion to suppress would have had merit."(Id., ¶11). Defendant further alleges that had counsel moved to challenge his arrest as being in violation of the Fourth Amendment, it would have led to the suppression of defendant's statements, which were made just after his arrest and that therefore there is a reasonable probability that the verdict would have been different without this evidence.

The People oppose the motion and argue that it is procedurally barred because defendant's claims are a matter of record which should have been raised on his appeal. In any event, they argue that the motion is meritless. The People submit that defendant has failed to establish that his attorney failed to make a proper inquiry. They argue that the record demonstrates that counsel was in possession of all of the pertinent facts regarding the defendant's arrest and that he moved in an omnibus motion for those grounds of relief for which defendant had a reasonable basis of success. They submit that any alleged "failure" by counsel to challenge defendant's arrest on Fourth Amendment grounds was because that claim lacked a reasonable basis for success given the ample proof in the record which demonstrated probable cause for the defendant's arrest. They further argue that in any event, defendant was properly arrested in Maryland by Mount Vernon police officers who were acting in conjunction with the U.S. Marshal's Service Fugitive Task Force, who had jurisdiction within that state.

Defendant's motion is without merit and is summarily denied. As an initial matter, the facts regarding defendant's out of state arrest are a matter of record (People's Exhibit E, Consent Discovery, No.20-date, time and place of arrest) and are therefore improperly raised herein, as it is well established that a CPL §440.10 motion with respect to the claimed ineffectiveness of counsel that is based upon matters in the record cannot be made as a substitute for a direct appeal from the judgment (CPL §440.10 (2)(c); People v. Gonzalez, 158 A.D.2d 615(1990), lv. denied, 76 N.Y.2d 735 (1990); see also People v. Brinkhuis, 44 A.D.3d 677 (2d Dept. 2007); People v. Williams, 5 A.D.3d 407 (2d Dept. 2004), lv. denied, 3 N.Y.3d 650 (2004)).

In any event, defendant has failed to establish that his trial counsel was ineffective. Ineffective assistance of counsel claims are governed by the two-part test set forth in Strickland v. Washington, 466 U.S. 668 (1984) (see People v. McDonald, 1 N.Y.3d 109 (2003); People v. McKenzie, 4 A.D.3d 437 (2d Dept. 2004)). The first prong of Strickland requires a showing that counsel's representation fell below an objective standard of reasonableness (Strickland v. Washington, supra at 687; People v. McDonald, supra at 113-114). The second prong requires that the defendant must show that counsel's omission resulted in an adverse effect, ie. that there is a reasonable probability that the result of the trial would have been different but for the omission and that the outcome of the trial cannot be viewed as a just result (see Strickland v. Washington, supra at 662; see also People v. Barbaran, 118A.D.2d 578, 579 (2d Dept. 1986); lv. denied, 67 N.Y.2d 1050 (1986)). In New York, the focus is on the fairness of the proceedings as a whole (People v. Stultz, 2 N.Y.3d 277, 284 (2004)) and whether the defendant was afforded meaningful representation (People v. Henriquez, 3 N.Y.3d 210, 230 (2004); People v. Benevento, 91 N.Y.2d 708, 712 (1998), People v. Baldi, 54 N.Y.2d 137, 147 (1981)). The test is one of reasonable competence, not perfect representation (People v. Modica, 64 N.Y.2d 828,829 (1985)). Thus, a reviewing court must avoid confusing "true ineffectiveness with mere losing tactics and according undue significance to retrospective analysis" (People v. Baldi, supra at 146; People v. Satterfield, 66 N.Y.2d 796, 798-99 (1985)). Due to the distorting effects of hindsight, "a court must indulge a strong presumption that counsel's conduct falls within a wide range of reasonable professional assistance" (Strickland v. Washington, supra at 689). Under either the federal or New York standard, defendant has failed to establish that his trial counsel was ineffective.

Counsel cannot be deemed ineffective for failing to make a motion upon which he was unlikely to prevail. On a motion to vacate a judgment of conviction, it is the defendant's burden to come forward with allegations that raise a triable issue of fact sufficient to challenge the presumed validity of a judgment of conviction (People v. Waymon, 65 A.D.3d 708, 709 (2d Dept. 2009), lv. denied, 13 N.Y.3d 863 (2009)). Defendant concedes as much in his motion papers, where he argues that "[w]here defense counsel's failure to litigate a Fourth Amendment claim is the principle allegation of ineffectiveness, the defendant must also prove that his Fourth Amendment claim is meritorious and that there is reasonable probability that the verdict would have been different absent the excludable evidence in order to demonstrate actual prejudice." (Defendant's Memorandum of Law, pp. 2-3). Here, defendant fails to demonstrate that his Fourth Amendment claim was meritorious. To the contrary, the record amply demonstrates that probable cause existed for the defendant's arrest, as set forth most strikingly in the search warrant affidavit for defendant's residence in Mount Vernon (People's Exhibit A), which was provided to the defense as discovery (People's Exhibit E).

Nor was defendant's arrest improperly conducted out of state. Police officers in New York may make out of state arrests where they are actively assisted by officers from the jurisdiction where the arrest is made (People v. Johnson, 303 A.D.2d 903, 905-06 (3d Dept. 2003), lv. denied, 100 N.Y.2d 539 (2003)). Here, the Mount Vernon police were assisted by U.S. Marshalls who were possessed with the same arrest powers as the local sheriff (28 U.S.C. §564), thus, they were properly assisted by officers vested with local authority in arresting defendant. It is also noted that defendant's arrest did not violate any Maryland law; to the contrary, Maryland CPL §2-202(c) expressly provides for warrantless arrests where the police have probable cause to believe that a felony has been committed, regardless of whether the felony was committed within the view of the police. Accordingly, as defendant's has not demonstrated that his Fourth Amendment claim is meritorious, his attorney cannot be found to be ineffective for failing to bring a motion pursuing such a claim (see People v. Rivera, 71 N.Y.2d 705, 709 (1988)).²

Defendant's motion to vacate the judgment of conviction pursuant to CPL §440.10 is denied.

1. This Corrected Decision & Order corrects a typographical error which appeared in the original. On page 3 herein, the citation to P.L §440.10(2)(b) has been corrected to reflect the correct statutory subsection and thus now reads P.L. §440.10(2)(c). No other changes have been made.

2. In his reply, defendant asserts for the first time that the People committed prosecutorial misconduct for allegedly failing to inform defense counsel that the New York felony complaint and arrest warrant were issued after defendant's arrest in Maryland. However, given that this argument was improperly raised for the first time in a reply brief, it is not properly before this Court, which declines to consider it, especially given that defendant was clearly in possession of this information prior to filing the current motion (see People v. Minota, 137 A.D.2d 837 (2d Dept. 1988), lv. denied, 71 N.Y.2d 130 (1988), People v. Williams, 292 A.D.2d 843 (4th Dept. 2002); People v. Abreu, 248 A.D.2d 124. 125(1st Dept. 1998)).

Sex Trafficking Questionnaire Does Not Fall Under Pedigree Exception to Miranda Rule

Brian Perskin — Mon, 02 May 2011 16:49:00 GMT

The Suffolk County Police Department arrested the defendant and during processing, read her additional questions from the "Human Trafficking Questionnaire." The court agreed that the defendant was treated differently because the questions asked of her were not the pedigree questions asked of other prisoners.

The People of the State of New York, Plaintiff v. MX, Defendant., 02139-2010

COUNTY COURT, SUFFOLK COUNTY

Acting Judge Martin I. Efman

Decided: April 18, 2011

Defendant MX is charged with Unauthorized Practice of a Profession in violation of New York State Education Law §6512 (1) (Count One) and Prostitution in violation of Penal Law §230.00 (Count Two).

Upon consent of the parties, a combined Huntley and Rodriguez pre-trial hearing was conducted before this Court on March 21, 2011, People v. Huntley, 15 NY2d 72 (1965), People v. Rodriguez, 79 NY2d 445 (1992), appeal after remand 193 AD2d 522 (1st Dept. 1993), lv. denied 82 NY2d 725. Based on the credible evidence at hearing, the Court determines that defendant's motion must be granted in part and denied in part.

The charges arise from an April, 2010 investigation conducted by the Suffolk County Police Department. Police were investigating charges of unlicensed massages and promoting prostitution. On April 8, 2010, undercover officer P.O. Phillip Popielaski entered a massage parlor located in Bellport, New York and requested a therapeutic massage. He was told by defendant to return in forty minutes. Upon his return, defendant advised him of the hourly rates and then administered a body massage to the officer. Defendant offered to manipulate the officer's genital area in exchange for an extra tip. P.O. Popielaski declined the offer. He paid for the massage and left the premises. The following day, police executed a search warrant of the premises. Defendant was arrested. At the scene, P.O. Popielaski identified her as the person whom he had encountered the previous day. Defendant was transported to the police precinct in Patchogue, New York.

The main issue before the Court is a series of statements made by defendant in response to a human trafficking questionnaire. The People concede that, at the time the statements were made to police, defendant was under arrest, in custody and had not been administered Miranda warnings, Miranda v. Arizona, 384 U.S. 436 (1966). The statements were made approximately one hour after the arrest, when defendant was interviewed by Suffolk County Police Officer Charles A. Reisinger. At the time, the two were alone in an interview room at the precinct. Defendant was restrained with a handcuff to a table. A Mandarin Chinese language line interpreter was used. There was no evidence of any promises, threats or mistreatment by police in order to induce defendant to answer the questions.

P.O. Reisinger's stated purpose in speaking to defendant was to obtain pedigree information and to ascertain if defendant was a victim of sexual trafficking. Apart from pedigree questions relating to biographical data, the officer read additional questions from a pre-printed "Human Trafficking Questionnaire" (sic). The questionnaire is a form used by the Suffolk County Police Department in cases in which a person could be subject to human trafficking. In addition to questions concerning health and safety in the workplace, the questionnaire asks, "What type of work do you do" and "Are you being paid". These two questions elicited the answers, "Used to be cashier now massage" and "Found job in World Journal had to leave $200.00 deposit with boss because they would train. Hasn't been paid yet". P.O. Reisinger testified that he asked defendant about her work simply because it was on the questionnaire.

It is the People's position that defendant's responses to the questionnaire fall within the pedigree exception to Miranda because they were elicited while the police were processing the defendant. Defendant maintains that she was treated differently because the questions asked of her were not the pedigree questions asked of other prisoners. Under the facts of this case, the Court determines that the statements generated in response to the human trafficking questionnaire must be suppressed.

The United States Supreme Court has recognized that routine booking questions constitute custodial interrogation. Such questions fall outside the protection of Miranda if they are reasonably related to police administrative concerns, Pennsylvania v. Muniz, 496 U.S. 582, 601-602 (1990). Pedigree questions are those questions necessary for processing a defendant or providing for his physical needs, People v. Rogers, 48 NY2d 167, 173 (1979). See also People v. Hester, 161 AD2d 665 (2nd Dept. 1990), lv. denied 76 NY2d 858 (1990) (medical questionnaire used to process prisoners); People v. Langston, 243 AD2d 728 (2nd Dept. 1997), lv. denied 91 NY2d 871 (1997) (post arrest inventory of defendant's property); and People v. Acevedo, 258 AD2d 140 (2nd Dept. 1999) lv. denied 94 NY2d 819 (1999) (defendant's disclosure of his place of residence). However, the prosecution "may not rely on the pedigree exception if the question, though facially appropriate, is likely to elicit incriminating admissions because of the circumstances of the particular case", People v. Rodney, 85 NY2d 289, 293 (1995).

Contrary to the People's contention, the statements at issue were not made in response to a routine processing question. In this particular case, the officer questioned defendant for the purpose of completing a human trafficking questionnaire that was only utilized in certain circumstances. These questions, posed at police discretion, were only asked of certain persons. As defendant is charged with the felony of Unauthorized Practice of a Profession pursuant to Education Law §6512(1), proof that defendant practiced a profession that by law requires a license is an essential element of the crime. Defendant's admission that she was employed at a massage parlor would certainly be significant. The testimony that, "It's one of the preprinted questions on the questionnaire" does not justify using the responses obtained in this case against defendant at trial. Here, the questionnaire was particularly likely to elicit relevant, incriminating responses, People v. Rodney, Id. "The questions asked of defendant were clearly not those aimed at ascertaining pedigree since they went to the very heart of the crime charged", People v. Antonio, 86 AD2d 614, 615 (2nd Dept. 1982).

For these reasons, the Court finds that defendant's statements in response to the questionnaire do not qualify as a pedigree exception and must be suppressed.

With respect to the remaining issues, defendant's motion is denied. The undercover officer's identification of defendant was merely confirmatory and was based upon sufficient prior familiarity, People v. Rodriguez, supra. Statements made by defendant to the undercover officer at the massage parlor on April 8, 2010 are admissible as they were spontaneous in nature and part of the res gestae facts of the case, People v. Bretagna, 298 NY 323 (1948), cert. denied 336 U.S. 919 (1949).

The foregoing shall constitute the Decision and Order of the Court.

People v. MX, 02139-2010, NYLJ 1202491408024, at *1 (Co. SU, Decided April 18, 2011)

Court Denies Motion to Vacate Sentence Because Defendant Did Not Prove He Lacked Proper Legal Counsel

Brian Perskin — Fri, 29 Apr 2011 15:19:00 GMT

The People of the State of New York v. LK, Defendant, 01-0396

Justice Richard A. Molea

Decided: April 4, 2011

DECISION AND ORDER

Upon consideration of the defendant's instant motion to vacate the judgment of conviction entered against him, the Court has considered the following papers: notice of motion to vacate judgment and affidavit in support of counsel for the defendant. Bruce Richardson, Esq., and affidavit of the defendant, and the affirmation in opposition and memorandum of law of Assistant District Attorney John James Sergi. Upon these submissions, the instant motion is decided as follows:

Factual Findings

Under the instant indictment, the defendant was charged with a single count of Rape in the second degree in violation of Penal Law §130.30(1) ["being a male eighteen years old or more, engaged in sexual intercourse with a female less than fourteen years old"]. three counts of Rape in the third degree in violation of Penal Law §130.25(2), three counts of Sexual Abuse in the second degree in violation of Penal Law §130.60(2), four counts of Sexual Abuse in the third degree in violation of Penal Law §130.55, and a single count of Endangering the Welfare of a Child in violation of Penal Law §260.10(1). The defendant was charged with the offenses contained in the instant indictment based upon allegations that he engaged in various types of sexual activity including sexual intercourse with a minor female, who was 13 years-of-age, on or about and between August 20, 1998 and August 25, 2000 at two distinct locations within the County of Westchester.

On November 8, 2000, the People commenced the instant criminal action by filing a felony complaint in the Yonkers City Court in the absence of the defendant's presence, as the defendant could not be located by law enforcement authorities. On April 24, 2001, the People filed the instant indictment in the absence of the defendant's presence, as he still could not be located, and an arrest warrant was issued for his arrest. In September of 2002, the defendant was located in Jamaica. West Indies, and extradition proceeding were commenced by the People. Following extradition proceedings conducted between the People and the government of Jamaica. West Indies, the defendant was extradited to the United States on April 28, 2004. On May 17, 2004, the arrest warrant for the defendant was executed in the presence of his retained attorney. Louis A. Ecker, Esq., he was arraigned under the instant indictment before the Westchester County Court (Zambelli. J.) and entered pleas of not guilty to all counts charged thereunder. The defendant's case was then transferred to this Court for further proceedings, including the filing of an omnibus motion on the defendant's behalf by defense counsel, who moved for various forms of relief including the dismissal of the indictment. On August 4, 2004, the Court filed and entered a Decision and Order upon the omnibus motion, denying those defense applications which sought the dismissal of the indictment, which lead to a conference of the case between the parties and the Court on August 18, 2004 regarding a potential disposition of the indictment upon the acceptance of a plea agreement.

On September 9, 2004, the defendant appeared before this Court in the presence of his retained attorney, Mr. Ecker, who advised the Court that the defendant was prepared to avail himself of the plea offer conveyed by the People for the disposition of the case. The Court placed the terms of the plea offer upon the record to confirm the accuracy of the defendant's understanding of its terms, indicating that the defendant would be required to enter a guilty plea to the crime of Rape in the second degree, charged as a class "D" non-violent felony offense under Count Four of the instant indictment, in exchange for the full satisfaction of the remaining counts charged thereunder. This Court also advised the parties that upon its acceptance of the defendant's guilty plea, it would commit to sentence him to serve a definite term of incarceration of one year, to pay a mandatory surcharge of $210.00 and to comply with the terms of a final order of protection in favor of the victim. The Court then asked Mr. Ecker if this accurately reflected his understanding and the defendant's understanding of the terms of the proposed plea agreement, which prompted Mr. Ecker to state that he had previously discussed the specific terms of that plea agreement with the defendant who was agreeable to same.

In a very clear and deliberate manner. Mr. Ecker then withdrew the defendant's previously entered plea of not guilty and entered a guilty plea on the defendant's behalf to the crime of Rape in the second degree as charged under Count Four of the instant indictment. The Court then observed the defendant provide answers, under oath, to the detailed questions asked by Assistant District Attorney Juel Hodge during her voire dire of the defendant in connection with the entry of his guilty plea. The Court also carefully observed the defendant's demeanor and listened to the inflections of his voice throughout these proceedings, noting that the defendant responded to all questions asked of him in a confident and clear manner, without any equivocation or hesitation. Significantly, the Court notes the defendant's affirmative response to

Assistant District Attorney Hodge's question concerning his satisfaction with the representation and advice provided by his counsel in connection with this matter, as well as his indication that he had an adequate opportunity to discuss the consequences of his guilty plea with his counsel. The Court further finds particular significance in the defendant's unequivocal affirmative response to Assistant District Attorney Hodge's question of him concerning his understanding that his guilty plea might result in his deportation and exclusion from the United States if he was not a citizen of the United States. The defendant also stated that he was pleading guilty because he was. in fact, guilty of the charge to which he was entering his guilty plea, that he understood the Court's sentence commitment, that his plea was being entered freely and voluntarily in the absence of any force or coercion, and that no one had made any other promise or representation to him which differed from the Court's sentence commitment. Upon this record, the Court accepted the defendant's guilty plea and scheduled this matter for sentencing on November 3, 2004, when the defendant was sentenced in accordance with the foregoing terms of the negotiated plea bargain. Significantly, in advance of the imposition of sentence, the defendant was interviewed by Probation Officer Judie Skelton of the Westchester County Department of Probation in connection with her preparation of a Pre-Sentence Investigation Report (PSR) ¹. who related therein that during her interview of the defendant he had stated to her that his lawyer had already advised him that he would be deported upon his release from incarceration.

On March 10, 2005, this Court conducted a risk level determination proceeding pursuant

to Article 6-C of the Correction Law, otherwise known as the Sex Offender Registration Act (SORA), to determine the defendant's appropriate risk level classification. The defendant appeared before the Court with Mr. Ecker for this proceeding, neglecting to raise any issue before the Court concerning his lack of knowledge at the time of the entry of his guilty plea of his obligation to register as a sex offender under SORA upon his release from incarceration. By Decision and Order, filed and entered on March 30, 2005, this Court determined that the defendant was a Risk Level Two sex offender under SORA and directed him to comply with the registration and notification provisions applicable under Article 6-C of the Correction Law.

Based upon the Court's review of the records maintained by the Unified Court System, the defendant did not pursue a direct appeal of either his judgment of conviction or his imposed sentence to the Appellate Division. Second Department, nor did he seek to appeal his classification as Risk Level Two sex offender under SORA. Furthermore, it appears from the defendant's moving papers that he remained at liberty until he was apprehended at his residence by members of the Bureau of Immigration and Customs Enforcement (B.I.C.E.) on June 8, 2010. which is presently pursuing deportation proceedings while the defendant remains confined at the South Texas Detention Complex located in Pearsall. Texas.

The defendant brings the instant application seeking to set aside the judgment of conviction entered against him under the instant indictment pursuant to Criminal Procedure Law (CPL) 440.10(1)(h), upon two distinct grounds sounding under a claim that he was denied the effective assistance of counsel with respect to his decision to enter his guilty plea in this case. In this regard, the defendant claims that he was denied the effective assistance of counsel due to the failure of his retained attorney to advise him of either the potential immigration consequences of

his guilty plea. or of his resultant obligation to register as a sex offender under SORA as codified in Article 6-C of the Correction Law.

Initially, the People oppose the defendant's instant application to vacate his judgment of conviction upon procedural grounds, arguing that the instant motion is subject to summary denial pursuant to CPL 440.30(4)(b) due to the failure of the defendant to support his motion with necessary factual averments set forth in competent sworn form. The People further oppose the defendant's instant application upon the merits insofar as same is based upon his factual claims that his retained attorney failed to advise him of the consequences of his guilty plea pertaining to his immigration status and his obligation to register as a sex offender under SORA, arguing that the defendant has failed to establish that the conduct he attributes to his retained attorney with respect to the plea proceedings in this case was of such a deficient nature that it violated the defendant's right to the effective assistance of counsel under the Sixth Amendment to the United States Constitution.

Conclusions of Law

Pursuant to the terms of CPL 440.10(1)(a)-(h), the grounds upon which a defendant may seek to vacate a judgment of conviction are specifically limited to those prescribed through the statute. upon application of the criteria set forth therein (see People v. Jackson, 78 NY2d 638). As the defendant's instant vacatur application is based exclusively upon his two-fold claim that he was deprived of the effective assistance of counsel by his retained attorney prior to the entry of his guilty plea, the Court finds that the defendant's claim raises an issue of constitutional dimension recognized by CPL 440.10(1)(h) which provides that vacatur may be granted where "[t]he judgment was obtained in violation of a right of the defendant under the constitution of this state or of the United States". and will consider the merits of the instant application.

Turning first to consider the People's procedural challenge to the instant application, the Court notes that CPL 440.30(4)(b) provides for the summary denial of a vacatur motion where "[t]he motion is based upon the existence or occurrence of facts and the moving papers do not contain sworn allegations substantiating or tending to substantiate all the essential facts". As the defendant's instant vacatur motion is based entirely upon his factual claims that he was denied the effective assistance of counsel due to the failure of his retained attorney to advise him of either the potential immigration consequences of his guilty plea, or of his resultant obligation to register as a sex offender under SORA, it is essential for the defendant, or another person or persons with knowledge thereof, to have set forth and submitted sworn allegations of fact in support of those factual claims for consideration by the Court See CPL 440.30[4][b] see also People v. Ford, 46 NY2d 1021; People v. Wells, 265 AD2d 589, People v. Lake, 213 AD2d 494;

People v. Lawson, 191 AD2d 514). Significantly, the Court notes that the defendant's ineffective assistance of counsel claims are supported solely by his notarized unsworn statement which is annexed to the instant application as an exhibit, in the absence of any sworn allegations of fact from Mr. Ecker in his capacity as the defendant's retained attorney when his guilty plea in this case was entered and his sentence was imposed. Of further significance, the Court notes that the defendant's notarized statement was not sworn, was not made after being duly sworn, nor was it hazarded under the penalty of perjury, despite the absence of any such sworn allegations of fact from any other party with knowledge of essential facts claimed by the defense in support of the instant application. Accordingly, the defendant's challenge to the quality of Mr. Ecker's legal representation cannot be sustained upon the state of the record presented, as the defendant's motion is devoid of any sworn allegations of fact which either demonstrate or tend to demonstrate that he was deprived of proper legal advice concerning the potential deportation consequences and SORA requirements of his guilty plea. or that he would have foregone entry of his guilty plea and proceeded to trial if he had been provided with proper legal advice in that regard (see CPL 440.30[4][b]; People v. Rivera, 71 NY2d 705; People v. Fields, 287 AD2d 577; People v. Rodriguez, 186 AD2d 632; People v. Hayes, 186 AD2d 268; People v. Ahmetovic. 157 AD2d 489). Based upon the foregoing, the defendant's failure to provide this Court with any sworn averments supporting or tending to support any of his factual claims concerning the legal advice he received from his retained attorney warrants the denial of the instant application without a hearing.

Moreover, even assuming that the defendant's moving papers had been supported by properly sworn factual allegations, his application seeking the vacatur of the instant conviction

would still be unavailing. With respect to the defendant's claim that he was unaware of the potential deportation consequences of his guilty plea due to his retained attorney's failure to advise him of same prior to entry of his guilty plea, the basis for same is refuted by the stenographic record of his plea allocution which clearly reflects that the defendant specifically acknowledged on the record that he understood that his guilty plea might result in his deportation from the United States. Furthermore, the statements attributed to the defendant during his PSR interview clearly reflect that he advised the investigating probation officer that his retained attorney had already advised him that he would be deported upon his release from incarceration. Upon consideration of the foregoing, the Court's application of the recent holding of the United States Supreme Court in Padilla v. Kentucky (559 US__, 130 S. Ct. 1473) ²to the instant case does not require that the defendant's conviction be vacated upon his claim that his retained attorney failed to advise him of the potential deportation consequences of his guilty plea.

With respect to the defendant's claim that he was unaware of the SORA requirements of his guilty plea due to his retained attorney's failure to advise him of same prior to entry of his guilty plea, it is significant to note that although the courts are required to advise defendants who enter guilty pleas of the "direct consequences" of their guilty plea and the resulting conviction, the courts are not required to advise defendants of the "collateral consequences" of same (People v. Harnell, NY3d, 2011 NY Slip Op 00744; People v. Gravino, 14 NY3d 546, 553-554; People v. Catu, 4 NY3d 242, 244; People v. Ford, 86 NY2d 397, 403). In this regard, collateral consequences of a conviction are those that are "peculiar to the individual and generally result

*10

from actions taken by agencies that the court does not control", whereas direct consequences are those which have a "definite, immediate and largely automatic effect on [a] defendant's punishment" (People v. Cam. 4 NY3d at 244, quoting People v. Ford, 86 NY2d at 403). Indeed, it is now well-settled that "a SORA risk level determination is not part of a defendant's sentence[:]...it is a collateral consequence of a conviction for a sex offense" (see People v. Windham, 10 NY3d 801), As a corollary to this principle, the Court of Appeals further instructed that SORA registration requirements are not considered "direct consequences" of a guilty plea and therefore the courts need not address them when taking a guilty plea to an enumerated offense under SORA, nor will a "court's neglect to mention SORA...during the plea colloquy...undermine the knowing. voluntary and intelligent nature of a defendant's guilty plea." (See People v. Gravino, 14 NY3d 546, 550). Consistent therewith, it is now well-settled that an alleged failure of a defense attorney to provide a defendant with advice concerning collateral consequences of his or her guilty plea, such as the requirement to register under SORA, does not constitute grounds for an ineffective assistance of counsel claim under Strickland v. Washington (466 US 668), nor does it affect the resulting conviction (see People v. Gravino, 14 NY3d at 554; see also People v. Ford, 86 NY2d at 403).

Indeed, this result is further compelled by the failure of the defendant to satisfy the second prong of the so-called Strickland test (Strickland v. Washington, 466 US 668) for evaluating claims of ineffective assistance of counsel under the Sixth Amendment to the United States Constitution, as the defendant has failed to establish that there exists a reasonable probability that he would have refrained from pleading guilty and insisted on proceeding to trial if it were not for his retained attorney's alleged failure to properly advise him of the deportation

*11

consequences and SORA requirements of his guilty plea (see Hill v. Lockhart, 474 US 52: see also Bao Lin Xue, 30 AD3d 166). Furthermore, the defendant's complete failure to support the instant application with as little as an unsworn assertion of innocence of the crime of conviction. ³to the effect that he did not engage in sexual intercourse with the complainant when she was 13 years-of-age, compels the Court to find that the defendant has not made a prima facie showing of prejudice in connection with his ineffective assistance of counsel claim (see People v. McDonald, 1 NY3d 109).

Furthermore, the defendant's claim of ineffective assistance of counsel is also refuted by the fact that he received a very advantageous plea, as his retained attorney was able to negotiate a plea bargain in which the defendant pleaded guilty to a single count of Rape in the second degree with a sentence commitment of a definite term of incarceration of one year in the Westchester County Jail in full satisfaction of three other counts of Rape in the third degree and other related counts which could have been designated to run consecutively to the crime of conviction (see People v. Ford, 86 NY2d: People v. Boodhoo, 191 AD2d 448).

To the extent that the defendant further makes some references in one of the exhibits annexed to his moving papers suggesting that he felt somewhat pressured by his retained attorney to enter his guilty plea, the Court notes initially that the defendant's attorney has not raised this ground as one of the bases for the vacatur of the instant judgment of conviction in his moving papers. However, to the extent that the defendant does allude to such a ground for relief in his

*12

unsworn statement annexed to the instant motion, the Court notes that a claim to the effect that "a plea of guilty was secured by coercion and intimidation" may be properly denied without a hearing where the "defendant failed to submit an affidavit from the attorney who represented him [or her] at plea and sentence or offer an explanation of his [or her] failure to do so" (see People v. Morales, 58 NY2d 1008, 1009; see also People v. Lowrance, 41 NY2d 303, 304-05: People v. Dixon, 29 NY2d 55). Accordingly, as the defendant has failed to provide the Court with any sworn allegations of fact in support of this claim on his own behalf or from his retained attorney, vacatur of the instant judgment of conviction upon this claim of coercion is denied.

Based upon the foregoing, the defendant's instant application seeking the vacatur of the judgment of conviction entered against him under the instant indictment is summarily denied without the need for a hearing (see People v. Satterfield, 66 NY2d 796, 799; People v. Griffin, 24 AD3d 972, 974, lv, denied 6 NY3d 834; People v. Demetsenare, 14 AD3d 792, 793).

The foregoing shall constitute the Decision and Order of the Court.

1. Which was reviewed by the Court, the People and the defendant's retained attorney, Louis Ecker, Esq., who acknowledged his review of same on the record in advance of the imposition of sentence without indicating that any portion of the PSR contained inaccurate information.

2. In its recent decision, the Padilla Court held that counsel's advice to a non-citizen defendant in a criminal case regarding the deportation consequences of a guilty plea implicates the right to counsel under the Sixth Amendment to the United States Constitution.

3. Such a claim is notably absent from the defendant's motion papers, which actually contain the sworn allegation of his present attorney on the instant motion that "[t]hough Mr. K has always conceded to engaging in a sole sexual act with a minor he has adamantly denied that he ever coerced, threatened or compelled in any way the minor complaining witness to engage in any sexual act."

People v. LK, 01-0396, NYLJ 1202491907873, at *1 (Sup., WE, Decided April 4, 2011)

Defendant Convicted of Sex Crimes Wins Hearing on Ineffective Counsel

Brian Perskin — Wed, 27 Apr 2011 17:24:00 GMT

The court decided that the defendant in this case was entitled to a hearing to determine whether he received ineffective counsel because his then-lawyer during the trial did not call any expert witnesses. The court ruled that, because in sex abuse cases and specifically those dealing with the testimony of a child, the testimony of expert witnesses is especially important, counsel's failure to call expert witnesses in support of his client comprised ineffective counsel.

The People of the State of New York v. Richard R.*, Defendant, Index Number Redacted

Judge John P. Colangelo

Decided: April 12, 2011

DECISION AND ORDER

Defendant Richard R. ("Defendant" or "Richard") brings this motion pursuant to Criminal Procedure Law __ 440.10 (1)(f) and (1)(h) to vacate his judgment of conviction for which he was sentenced in June 2007. Defendant also seeks a hearing on the issues raised if the requested relief is not granted on the papers, and production of Defendant at any hearing to be conducted for the purpose of determining this motion.

The charges for which Richard was convicted center around his unlawful sexual contact with his then five year old daughter. Defendant's daughter, age seven at the time of trial, testified at the trial and was a principal witness for the People. The mother of the child victim, Richard's ex-wife, also testified for the People. Richard testified on his own behalf and, in essence, denied the charges. On December 15, 2006, Defendant was convicted after a jury trial of the Class B felony of a Course of Sexual Conduct Against a Child in the First Degree (PL _ 130.75), the Class E felony of Incest in the Third Degree (PL 255.25) and the Class A Misdemeanors of Assault in the Third Degree (PL _ 120.00 [1]) and Endangering the Welfare of a Child (PL _ 260.10 [1]). Richard was sentenced by the Honorable Rory Bellantoni on June 18, 2007 to a determinate term of 20 years in state prison, and remains incarcerated on that judgment.

The instant motion is submitted on Defendant's behalf by his present counsel, Neal D. Futerfas, who was not Richard's trial attorney. Mr. Futerfas represented Defendant in connection with his unsuccessful post-trial motion pursuant to CPL _ 330 to set aside the verdict, and is also Defendant's counsel in connection with his pending direct appeal from that verdict.

The thrust of the instant motion is Defendant's claim that he received ineffective assistance of counsel based upon errors and omissions, prior to and during the trial, of his then attorney, Matthew Mazzamurro ("Mazzamurro" or "Counsel"). Such purported errors and omissions principally pertain to Counsel's alleged failure to consult with or call as witnesses medical experts with an eye toward contradicting the testimony of the People's trial medical experts and to impugn the testimony of the child victim. In connection with the Defendant's post-trial motion before Judge Bellantoni to set aside the jury's verdict, Mazzamurro submitted an affidavit in which he indicated that while he did conduct some unspecified "independent research," he did not consult with expert witnesses, and failed to call his own expert witnesses to testify on Richard's behalf. As the record herein reveals and as both parties concede, the People's evidence at trial consisted primarily of the testimony of the child victim, her mother, and medical experts and their review of their examination of the victim. No direct physical evidence linking Richard to the acts alleged, such as DNA results, or third party eyewitness testimony was adduced.

In support of the instant motion, Defendant submitted his own affidavit and the affidavits of Dr. Lawrence Ricci and Dr. Maggie Bruck. Dr. Ricci, a forensic pediatrician, stated in essence that his review of the medical evidence with respect to the victim was exculpatory as to Richard. His review revealed a normal physiognomy-that is, the victim's anatomy was in the normal range and did not display overt signs of abuse. He further opined that the relevant medical literature did not support the conclusion reached by the People's trial medical expert, Dr. Jennifer Canter-the forensic pediatrician who had examined the victim-to the effect that the victim's physical condition that Dr. Canter observed was "highly specific" for "blunt force...penetrating trauma". In short, Dr. Ricci concluded that the victim had not been sexually abused in the manner described at trial by Dr. Canter. In her affidavit, Dr. Bruck-a forensic psychologist-disputed much of the testimony offered by the psychiatrist Dr. Anne Meltzer, the People's other medical expert witness. Dr. Meltzer testified at trial as to Child Sexual Abuse Accommodation Syndrome ("CSAAS") in an effort to explain the child victim's reticence to promptly report and thereafter testify as to the manner and extent of the alleged abuse, and to thus bolster the victim's testimony. Dr. Bruck contends that Dr. Meltzer's expert testimony was not supported by the current scientific literature, but instead was based upon her subjective clinical opinions, that Dr. Meltzer's theories and conclusions were flawed, and that her testimony would have been easily refuted by a competent expert witness had one been called by the defense.

In addition to Counsel's alleged failure to consult with experts concerning the prosecution's medical evidence in order to effectively cross-examine the prosecution's witnesses, and his failure to retain defense experts to call as witnesses for Richard in order to contradict the People's experts, Defendant advances several other grounds for the relief sought by the instant motion. Such purported grounds relate, in the main, to Counsel's defense strategy and trial tactics, and include the following claims: that Counsel failed to object to or seek appropriate relief regarding allegedly improper questioning by the People and the Court; failed to properly or effectively cross-examine the People's witnesses; failed to properly or effectively present or question his own witnesses; failed to properly propose a "Sandoval Compromise" with respect to Defendant's criminal record; failed to seek a "Frye" hearing regarding the proposed testimony of Dr. Meltzer; interposed improper pre-trial motions; failed to show a motive or reason for the victim's mother and/or other parties to fabricate the charges and for the child victim to lie about allegedly being sexually abused by the Defendant; failed to use at trial records from prior Family Court proceedings in Westchester and Putnam Counties; failed to make proper opening and closing statements; failed to present a cogent defense theory; failed to preserve critical issues; and failed to obtain the testimony and records of the child's pediatrician. Based on the alleged failures by trial counsel both on and off the trial record, Defendant argues that Mazzamurro's performance constituted ineffective assistance of counsel under the standards established by the federal courts as well as the courts of this state.

The People oppose Defendant's motion and maintain that any omissions or errors by trial counsel were the result of tactical, strategic decisions by competent counsel and therefore do not provide a valid basis to vacate Defendant's judgment of conviction. The People further dispute Defendant's contention that the failure by Counsel to consult with or call defense medical experts constituted ineffective assistance of counsel, and argue that such failure may well have been caused by unspecified difficulties that counsel encountered in his search for an expert who could plausibly contradict the People's evidence and thereby change the course of the trial. Moreover, the People argue that Mazzamurro did in fact contact Dr. Canter before trial, as well as two other doctors.

Discussion and Conclusions.

Defendant contends that Counsel's performance, before and during his trial, amounted to ineffective assistance of counsel and denied him of his right to a fair trial under both New York and federal constitutional standards. Under New York law, the Court must determine whether "the evidence, the law, and the circumstances of [the] particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation." (People v. Hull, 71 A.D.3d 1336, 1338 [3d Dept. 2010], quoting People v. Benevento, 91 N.Y.2d 708, 712 (1998); People v. Baldi, 54 N.Y.2d 137 [1981]). In order to prevail on an ineffective assistance claim under the federal standard, a defendant must prove "both that counsel's representation fell below an objective standard of reasonableness measured under prevailing professional norms" and that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Graham v. Portuondo, 732 F. Supp. 2d 99, 114 [E.D.N.Y., 2010] where the Court granted federal habeas corpus relief on the ground of ineffective assistance of trial counsel; Strickland v. Washington, 466 U.S. 668 [1984]).

As the People correctly maintain, under both federal and state standards, a defense attorney's mere error in judgment in choosing a particular trial strategy that results in a consequence he or she did not intend-a guilty verdict-is not alone sufficient to constitute ineffective assistance of counsel. After all, a defendant is only entitled to meaningful, not invariably successful, representation. And the standard of meaningful representation will be met as long as counsel's trial strategy and tactics are objectively reasonable and diligently pursued. As the Court of Appeals stated in the leading New York case of People v. Baldi, 54 N.Y.2d 137, 146-147 (1981),

"Our most critical concern in reviewing claims of ineffective counsel is to avoid both confusing true ineffectiveness with mere losing tactics and according undue significance to retrospective analysis. It is always easy with the advantage of hindsight to point out where trial counsel went awry in strategy. But trial tactics which terminate unsuccessfully do not automatically indicate ineffectiveness. So long as the evidence, the law, and the circumstances of a particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation, the constitutional requirement will have been met," (Emphasis added).

See also Strickland v. Washington, 466 U.S. 668, 689 (1984) (In evaluating a claim of ineffective assistance in the federal context, the Court stated that "[j]udicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable."); People v. Jackson, 52 N.Y.2d 1027 (1989). In the instant case, a review of the record reveals that the vast majority of the alleged errors of Mazzamurro as cited by Defendant fall into the category of arguably reasonable trial strategy and tactics gone awry. Accordingly, based on the papers submitted and the Court's evaluation of the conduct of Counsel before and during the trial, the Court finds that Richard was afforded meaningful representation to satisfy both constitutional prescriptions, and no hearing is required except with respect to one area of pre-trial preparation and trial tactics and strategy-medical expert testimony.

In this type of criminal case involving sexual conduct-especially when the veracity of a child witness is at issue-one particular type of evidence has been held to be sui generis in evaluating the propriety of a counsel's representation: expert medical testimony. Given the "centrality of expert testimony" (Gerstein v. Senkowski, 426 F.3d 588, 607 [2d Cir. 2005]) in assisting the jury in determining whether the very act complained of physically could or did ocurr, as well as the reliability of a child witnesses's testimony from a psychological perspective, courts have held that a defense counsel's failure to call an expert or experts, if available, as witnesses in the defense case or to, at minimum, engage in a meaningful consultation with such experts in order to prepare for cross-examination of the prosecution's medical witnesses will oftentimes, in and of itself, amount to a lack of meaningful representation. The application by subsequent courts of the leading United States Supreme Court case of Strickland v. Washington, 466 U.S. 668 (1984) to such cases so shows.

Strickland established the standard for determining whether a defendant has been afforded effective assistance of counsel under the Sixth Amendment to the United States Constitution. As articulated by Justice Brennen, the standard of ineffective assistance-easy to state but often difficult to apply-is as follows:

"First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id. at 687.

The Strickland court acknowledged that in assessing whether counsel has successfully discharged his or her duty to effectively represent his or her client, courts should accord great deference to defense counsel and "must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." (Id. at 690). Nonetheless, the Court emphasized that counsel had not only an obligation to zealously represent his or her client during the trial, but to "make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." (Id. at 691). In applying the state standard, New York State courts have undertaken a similar analysis, although under the framework of whether a defendant received "meaningful representation" in light of the totality of the circumstances-which include, inter alia, whether counsel conducted an adequate investigation of the facts. See, e.g., People v. Baldi, 54 N.Y.2d 137, 147 (1981).

In the leading case of Gersten v. Senkowski, 426 F.3d 588 (2d Cir. 2005), the Second Circuit applied the Strickland rubric to the particular facts that obtain in a sex abuse case involving a minor. In Gersten, as here, the charges centered around illicit sexual contact between a father and his minor daughter, age nine. Defendant waived his jury trial rights and was convicted after a bench trial. Similar to the instant case, the prosecution called two medical experts as trial witnesses: a medical doctor who had conducted a physical examination of the alleged victim after the alleged abuse was revealed, and a child psychologist who testified as an expert as to a child's psychological reactions to sexual abuse. The alleged victim testified, as did her mother. Defense counsel called no witnesses, and while he did cross-examine the People's medical experts, there was no indication that counsel had consulted any physicians or psychologists to assist him in that task.

Defendant Gerstein was convicted after trial. When his direct appeal failed, Gersten brought a CPL _ 440 motion predicated on alleged ineffective assistance of counsel. When that motion was denied by the Nassau County Court, Gersten brought a petition for a federal writ of habeas corpus. The federal district court (per Judge Jack Weinstein) granted defendant's writ and ordered a new trial because there "is a reasonable probability that petitioner would not have been convicted had defense counsel conducted an adequate examination into the medical evidence and called an expert to testify," and therefore the County Court's "failure...to consider the importance of this omitted expert testimony in denying petitioner's motion to vacate the judgment of conviction" was "an unreasonable application of the Strickland standard." (Id. at 606).

Focusing largely upon counsel's failure to call or meaningfully consult with potentially favorable medical experts, the Second Circuit applied the Strickland standard to the special case of the child victim sex abuse prosecution-where medical evidence is often determinative-and affirmed. As the Court stated,

In order to prevail on a Sixth Amendment ineffectiveness claim, a petitioner must prove (1) that counsel's representation "fell below an objective standard of reasonableness" measured under "prevailing professional norms," Strickland, 466 U.S.at 688, 104 S. Ct. 2052, and (2) that "there is a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different", id, at 694, 104 S. Ct. 2052, "[S]trategic choices made by counsel after thorough investigation...are virtually unchallengeable." id. at 690, 104 S. Ct. 2052, and there is a strong presumption that counsel's performance falls "within the wide range of reasonable professional assistance," id. At 689-90, 104 S. Ct. 2052. But counsel has a duty to make reasonable investigations, and a decision not to investigate will be reasonable only "to the extent that reasonable professional judgments support the limitations on investigation." Id at 690-91, 104 S. Ct. 2052. In sexual abuse cases, because of the centrality of medical testimony, the failure to consult with or call a medical expert is often indicative of ineffective assistance of counsel...This is particularly so where the prosecution's case, beyond the purported medical evidence of abuse, rests on the credibility of the alleged victim, as opposed to direct physical evidence such as DNA, or third party eyewitness testimony. (Id. at 607; emphasis added).

In the context of his CPL 440 motion, Gerstein adduced affidavits of medical experts, which led the Circuit Court to conclude that had counsel conducted "an adequate pre-trial investigation of the evidence," counsel would likely "have discovered that exceptionally qualified medical experts could be found" in both areas to which the prosecution experts testified to provide an alternative and, to defendant, more favorable version of events. (Id. at 610, 611). Accordingly, the Court affirmed Judge Weinstein's conclusion that "[d]efense counsel's lack of preparation and failure to challenge the credibility of the key prosecution witness could not be based on a sound trial strategy, and it was an unreasonable application of Strickland for the County Court to hold otherwise." (Id. at 611).

In cases before and after Gersten, both federal and state courts have employed an analysis similar to that undertaken by the Second Circuit to evaluate the propriety of a defense counsel's strategy and tactics in sex abuse cases, at least as far as medical experts are concerned, and with similar results: counsel's failure to consult with or call expert medical witnesses invariably resulted in, at the least, a more extensive evaluation of trial counsel's conduct and the purported rationale behind it. For example, in Pavel v. Hollins, 261 F.3d 210, 223 (2d Cir. 2001), the Second Circuit held defense counsel's representation ineffective when he failed to call or consult with medical experts in a sex abuse case, or to provide a satisfactory reason for such a decision. As the Court stated,

"[W]e believe that [defense counsel] Meltzer's performance was deficient to the extent that he did not call a medical expert to testify as to the significance of the physical evidence presented by the prosecution. This decision might well have been beyond reproach if it had been based on appropriate strategic considerations, or if it had been made by Meltzer following a sufficient investigation. But that was not the case.

First, as noted above, Meltzer decided not to put on a medical expert for reasons that had nothing to do with serving Pavel's interests...Therefore, the considerations that animated Meltzer's decision not to call a medical expert cannot be described as truly "strategic." Second, Meltzer's decision not to call a medical expert was deficient because it was not based on pre-trial consultation with such an expert."

See also, e.g., People v. Okongwu, 71 A.D.3d 1393, 1395 [4th Dept. 2010] (Medical evidence in a sex crimes trial corroborating the victim's testimony went unrefuted due to unsuccessful and inexcusably "feeble attempts" by defense counsel to contact medical experts. In addition, defense counsel indicated that he was unfamiliar with literature raising doubts about child sexual abuse syndrome, and thus did not cross examine People's psychological expert concerning that literature. Accordingly, defendant's CPL 440 motion was granted on the grounds of ineffective assistance of counsel.); Eze v. Senkowski, 321 F.3d 110, 128 (2d. Cir. 2003). ("[W]hen a defendant is accused of sexually abusing a child and the evidence is such that the case will turn on accepting one party's word over the others, the need for defense counsel to, at a minimum, consult with an expert about the "vagueness of abuse" is critical...The importance of consultation and pre-trial investigation is heightened where, as here, the physical evidence is less than conclusive and open to interpretation."); Lindstadt v. Keane, 239 F.3d 191, 201 (2d Cir. 2001).

Here, in light of Gersten and related cases, a hearing to examine the manner in which Mazzamurro addressed the issue of medical and trial expert witnesses, before and during the trial, is in order. In the instant case, as in other sexual abuse cases, the alleged failure by counsel to consult with or call a medical expert may be indicative of ineffective assistance of counsel particularly where, as here, "the prosecution's case, beyond the purported medical evidence of abuse, rests on the credibility of the alleged victim, as opposed to direct physical evidence such as DNA, or third party eyewitness testimony." (Gersten v. Senkowski, 426 F.3d 588, 607 [2d Cir. 2005]). Material facts, as initially adduced by Defendant in his papers may, if established, entitle him to the relief sought. See People v. Ferreras, 70 N.Y.2d 630, 631 (1987); People v. Nau, 21 A.D.2d 568 (2d Dept. 2005).

However, contrary to Defendant's contention on this motion, Mazzamurro's affidavit submitted in support of Richard's post-trial CPL 330 motion is, standing alone, insufficient to establish a lack of meaningful representation as far as the expert witness issue is concerned. While it is undisputed that Defendant called no expert witness at trial, Mazzamurro's affidavit is not free of ambiguity. It is unclear from his affidavit whether any experts were consulted on an informal basis; nor does Mazzamurro set forth in detail his rationale for the specific lack of expert consultation to which he does refer. In addition, it is noteworthy that no affidavit of Mazzamurro was submitted in support of the instant motion. Such a submission may have helped clarify what steps, if any, he did take before and during the trial in relation to experts and whether such steps were part and parcel of a coherent and reasonable trial strategy, or instead should be viewed as evincing ineffective assistance.

Thus, in view of the "centrality of expert testimony" in cases such as this-where expert testimony may well have a significant, if not determinative impact on whether a jury concludes that the alleged criminal acts occurred or not-the rationale underlying defense counsel's purported failure to consult with and admitted failure to call outside medical experts at trial must be examined. Accordingly, a hearing is ordered, limited in scope to the issue of trial counsel's conduct with respect to medical experts. See People v. Jenkins, 68 N.Y.2d 896 (1986).

Defendant Richard has a right to be present at such hearing, but may waive such right in writing. Such waiver of the right to be present should be submitted to the Court no later than one week prior to the scheduled court date. At the hearing, Defendant will bear the burden of proving by a preponderance of the evidence every fact essential to support his motion. (CPL _ 440.30[6]).

Within ten days of the date of the entry of this Decision, the People are directed to submit to the Court a proposed order for the production of Defendant for the purposes of an appearance before this Court on May 12, 2011, at 2:00 p.m. at which time a date for the hearing will be scheduled.

The Court considered the following papers on this application: 1) Notice of Motion and Affirmation in Support dated July 15, 2010 together with Exhibits A through N and Memorandum of Law, People's Affirmation in Opposition and Memorandum of Law together with Appendix to the People's Memorandum of Law; Affirmation in Reply together with Exhibit A, and Appendix to Defendant's Submissions in Reply, Transcripts of proceedings regarding indictment no. 124-2006 dated 9/7/06, 9/14/06, 12/1/06, 12/6/06, 12/7/06, 12/11/06, 12/12/06, 12/13/06.

The foregoing constitutes the Decision and Order of this Court.

*Due to the nature of this case and the requirements of Section 50(B) of the Civil Rights Law, the defendant's name has been changed to Richard R.