Opinion
Indictment No. 70591-22
03-31-2023
The People of the State of New York, v. Kimberly Legare.
For The People: Michael E. McMahon District Attorney, Richmond County By: Ryan Malloy, Assistant District Attorney For The Defendant: Michael E. Vitaliano, Esq The Vitaliano Law Firm
Unpublished Opinion
For The People:
Michael E. McMahon
District Attorney, Richmond County
By: Ryan Malloy, Assistant District Attorney
For The Defendant:
Michael E. Vitaliano, Esq
The Vitaliano Law Firm
Lisa Grey, J.
Defendant moves to dismiss Indictment 70531-22 pursuant to the 5th Amendment of the United States Constitution and Article 1, §6 of the New York State Constitution on the premise that the instant indictment is a second prosecution barred by double jeopardy and for any additional relief this Court deems just and proper.
PROCEDURAL HISTORY
On September 21, 2021, defendant was arraigned in Richmond County Criminal Court on charges of Grand Larceny in the Third Degree and related offenses, under docket number CR-4446-21RI. The crimes charged in the Criminal Court complaint cover conduct that occurred from July 21, 2021, through July 30, 2021, and are related to a long- term scheme in which defendant stole money from her employer. On March 9, 2022, in Richmond County Criminal Court, defendant pled guilty to the A misdemeanor of Petit Larceny (PL 155.25) to cover the crimes charged under docket CR-4446-21RI. Defendant also agreed to pay approximately $7,000 in restitution. Defendant remains pending sentence on docket CR-4446-21RI in Richmond County Criminal Court.
Some weeks after defendant's above guilty plea, she was again arrested for crimes of Grand Larceny in the Third Degree, for additional conduct related to the long-term scheme to steal from her employer. The charges contained in the instant indictment cover the period of February 15, 2021, through July 12, 2021. Defendant was arraigned on indictment 70531-22 on July 29, 2022, in Richmond County Supreme Court. Subsequently, defendant filed the instant motion to dismiss on grounds of double jeopardy, claiming that the frauds perpetrated in docket CR-4446-21RI and indictment 70591-22 are part of a common scheme against the same individual, her employer, and thus one continuous offense.
CONCLUSIONS OF LAW
The Constitutions of the United States and the State of New York both contain "double jeopardy" clauses, barring an individual from being prosecuted twice for the same offense. The New York State Constitution provides that "no person shall be subject to be twice put in jeopardy for the same offense," (NY Const. Art. 1 §6) while the United States constitution provides, in sum, that "no person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb." (U.S. Const. 5th Amend). The federal constitutional provision also applies to the states through the 14th Amendment. See Benton v. Maryland, 395 U.S. 784, 794 (1969).
Blockburger v. United States (284 U.S. 299 [1932]) set forth the standard for analyzing whether a prosecution violates the double jeopardy clause. There, the United States Supreme Court held that each of several successive [drug] sales constitute a distinct offense, however closely they may follow each other (Id. at 302) and regardless of the fact the sales were made to the same person. The Court went on to explain that "when the impulse is single, but one indictment lies, no matter how long the action may continue. If successive impulses are separately given, even though all unite in swelling a common stream of action, separate indictments lie" (Id., citing Wharton's Criminal Law, 11th ed. §34.)
Blockburger next discussed a situation where one criminal act can constitute multiple different crimes. This is referred to as the "same elements" test. The Blockburger court held that the applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not (Id. at 304). Defendant relies solely on the application of the "same elements" test, ignoring the first prong related to "separate impulses."
In this Court's view, the "same elements" test is wholly inapplicable here. In the instant matter, we are dealing with multiple larceny charges, all containing the same or similar elements. The allegations are clearly part of a common scheme, containing the same victim, but occur during different time periods. Since defendant's "separate impulses" have "swelled into a common stream of action," as stated above, separate accusatory instruments are permissible.
CPL Art. 40 embodies New York's statutory doctrine of double jeopardy. CPL 40.20[1] states that a person may not be twice prosecuted for the same offense. CPL 40.20[2][b] provides that a person may not be separately prosecuted for two offenses based upon the same act or criminal transaction unless each of the offenses as defined contains an element which is not an element of the other, and the statutory provisions defining such offenses are designed to prevent very different kinds of harm or evil. CPL 40.30 explains that a person "is prosecuted" for an offense when he is charged therewith by an accusatory instrument filed in a court of this state or of any jurisdiction, and when the action either: (a) terminates in a conviction upon a plea of guilt; or (b) proceeds to the trial stage and a jury has been impaneled and sworn or, in the case of a trial by the court without a jury, a witness is sworn.
New York courts have held that a defendant's repetition of similar but distinct criminal acts, sharing a modus operandi and ostensibly perpetrated pursuant to the same general plan or scheme, but occurring at different times and each aimed at the capture of a separate increment of illicit gain, do not constitute a single criminal transaction within the meaning of CPL 40.10[2][b]. See Matter of Dieffenbacher v. Jackson, 189 A.D.3d 710, 712 [1st Dept 2020], appeal dismissed 2021 NY LEXIS 2905 [2021]; People v. Dallas, 46 A.D.3d 489 [1st Dept. 2007], appeal denied 10 N.Y.3d 809 [2008]; People v. Vesprey, 183 A.D.2d 212 [1st Dept. 1992].
There is no disputing that upon defendant's entry of a guilty plea on docket CR-4446-21RI in Richmond County Criminal Court, jeopardy attached for the acts charged on or about and between July 21, 2021, through July 30, 2021. However, this does not bar the prosecution for the similar but distinct larcenies, sharing a modus operandi and perpetrated pursuant to the same general plan, because they occurred at different times, and each aimed at the theft of separate monies.
Since defendant was charged with larcenies in the instant indictment which predated the larcenies she pled guilty to in Criminal Court, defendant asks this Court to find that the People had sufficient knowledge of the uncharged crimes and make an inquiry of whether the charged crimes in the instant indictment could have joined in the original felony complaint. The offenses are obviously joinable pursuant to CPL 200.20. The question of timing, although inconvenient for everyone involved, has no bearing on a double jeopardy analysis.
This Court finds that the instant prosecution is not barred by double jeopardy and defendant's motion is denied in its entirety.
This constitutes the decision and order of the Court.