Opinion
November 8, 1990
Appeal from the County Court of Broome County (Mathews, J.).
We reject defendant's contention that his prosecution for forgery was barred by the double jeopardy provisions of CPL 40.10 and 40.40. Crim. Proc. Although the two crimes (burglary and forgery) could be said to have arisen out of one criminal transaction (CPL 40.10), they were comprised of substantially different elements and were still separate crimes (see, CPL 40.20 [a]; People v. Hopkins, 95 A.D.2d 870). Additionally, the People established that at the time of the previous prosecution for burglary, they did not possess legally sufficient evidence to support a conviction for forgery against defendant (CPL 40.40; see, People v. Lindsly, 99 A.D.2d 99). Therefore, separate prosecutions were permissible and County Court's refusal to dismiss the forgery indictment was proper.
Judgment affirmed. Kane, J.P., Casey, Mikoll, Yesawich, Jr., and Mercure, JJ., concur.