Opinion
December 14, 1984
Appeal from the Onondaga County Court, Cunningham, J.
Present — Dillon, P.J., O'Donnell, Moule and Schnepp, JJ.
Order unanimously reversed, motion denied and indictment reinstated. Memorandum: The People appeal from an order of Onondaga County Court, dismissing a two-count indictment charging defendants with entering into a "contract, agreement, arrangement or combination" to restrain trade and monopolize the private ambulance and wheelchair business in Onondaga County in violation of section 340 Gen. Bus. of the General Business Law. The offenses charged are continuous in nature (see People v. Rosenberg, 93 Misc.2d 965). Although the record demonstrates that the written agreement between the defendants was entered into in 1979, the arrangement was not even claimed to be terminated until 1982. Moreover, in 1981, defendant Eastern, acting pursuant to the agreement, purchased another ambulance company and opposed the application for a wheelchair carrier permit of yet another company. Thus, since the Statute of Limitations of a continuous crime is governed by the termination and not the starting date of the offense ( People v. Rosenberg, supra; People v. Fletcher Gravel Co., 82 Misc.2d 22), the indictments filed in 1983 were timely. The People properly charged that defendant's actions were in violation of sections 340 Gen. Bus. and 341 Gen. Bus. of the General Business Law (the Donnelly Act), as these provisions prohibit conspiracies to monopolize or restrain trade (see State of New York v. Mobil Oil Corp., 38 N.Y.2d 460). Finally, we find that although the Attorney-General erred in using the "per se" standard in charging the Grand Jury, even under the proper and more restrictive "rule of reason" standard ( Atkin v. Union Processing Corp., 90 A.D.2d 332, affd 59 N.Y.2d 919, cert den ___ US ___, 79 L ed 2d 712), there was legally sufficient evidence in the record to support the indictments.