Opinion
09-28-2016
The PEOPLE, etc., appellant, v. David G. THOMAS, et al., respondents, et al., defendants.
Roger Bennet Adler, Special District Attorney, Brooklyn, NY, for appellant. Law Offices of Samuel Gregory, P.C., Brooklyn, NY, for respondent David G. Thomas, Miedel & Mysliwiec, LLP, New York, NY (Florian Miedel of counsel), for respondent Debi Rose 4 City Council 2009, and Charles A. Ross & Associates, LLC, New York, NY, for respondent Rachel Goodman (one brief filed).
Roger Bennet Adler, Special District Attorney, Brooklyn, NY, for appellant.
Law Offices of Samuel Gregory, P.C., Brooklyn, NY, for respondent David G. Thomas, Miedel & Mysliwiec, LLP, New York, NY (Florian Miedel of counsel), for respondent Debi Rose 4 City Council 2009, and Charles A. Ross & Associates, LLC, New York, NY, for respondent Rachel Goodman (one brief filed).
JOHN M. LEVENTHAL, J.P., SHERI S. ROMAN, JEFFREY A. COHEN, and HECTOR D. LaSALLE, JJ.
Appeal by the People, as limited by their brief, from so much of an order of the Supreme Court, Richmond County (Rooney, J.), dated October 8, 2015, as granted those branches of the joint motion of the defendants David G. Thomas, Debi Rose 4 City Council 2009, and Rachel Goodman which were to dismiss counts 1 through 4 and 6 through 21 of the indictment based on the statute of limitations.
ORDERED that the order is affirmed insofar as appealed from.
The Supreme Court did not err in dismissing counts 1 through 4 and 6 through 21 of the indictment, based on the expiration of the statute of limitations. A criminal action “commences with the filing of an accusatory instrument ... in a criminal court” (CPL 1.20[16][a] ). A prosecution for a felony, other than a Class A felony or certain other felonies not at issue here, must be “commenced within five years after the commission thereof” (CPL 30.10[2][b] ). A prosecution for a misdemeanor “must be commenced within two years after the commission thereof” (CPL 30.10[2][c] ).
Where a defendant “raise[s] a facially viable statute of limitations defense ... the burden ... shift[s] to the People to prove beyond a reasonable doubt that the statute of limitations was tolled or otherwise inapplicable” (People v. Burroughs, 108 A.D.3d 1103, 1104, 968 N.Y.S.2d 773 ; see People v. Kohut, 30 N.Y.2d 183, 186, 331 N.Y.S.2d 416, 282 N.E.2d 312 ; see also People v. Knobel, 94 N.Y.2d 226, 229, 701 N.Y.S.2d 695, 723 N.E.2d 550 ).
Here, the defendants David G. Thomas, Debi Rose 4 City Council 2009, and Rachel Goodman (hereinafter collectively the defendants) raised a facially viable statute of limitations defense with respect to counts 1 through 4 and 6 through 21 of the indictment; in response, the People failed to prove that the limitations period was tolled or otherwise inapplicable. The counts that were dismissed charged offering a false instrument for filing in the first degree, violations of Administrative Code of City of New York § 3–711(3), falsifying business records in the second degree, tampering with public records, making a punishable false written statement, and perjury in the second degree. All of these counts were based on the filing with the New York City Campaign Finance Board (hereinafter the CFB) of certain documents on discrete dates between August 2009 and October 2009 that occurred more than five years before the filing of the felony complaint, which was sworn to on October 17, 2014. Contrary to the contention of the People, the subject counts, as charged in this indictment, do not constitute “continuing crimes” (see People v. Landy, 125 A.D.2d 703, 704, 510 N.Y.S.2d 190 ; see also People v. Burroughs, 108 A.D.3d at 1105, 968 N.Y.S.2d 773 ).
Moreover, the People failed to show that the statute of limitations was tolled for any reason with respect to the subject counts of the indictment. In particular, an audit by the CFB did not operate to toll the limitations period for the counts at issue, nor did any statements allegedly made by the defendants, or their grand jury testimony, toll the limitations period (see CPL 30.10 ; see also People v. Kase, 76 A.D.2d 532, 535–536, 431 N.Y.S.2d 531, affd. 53 N.Y.2d 989, 441 N.Y.S.2d 671, 424 N.E.2d 558 ). In addition, any delay in the appointment of a special prosecutor did not affect the running of the limitations period (see CPL 30.10 ; see also People v. Kase, 76 A.D.2d at 535–536, 431 N.Y.S.2d 531 ).
The People's contention that the defendants' joint motion papers were defective is improperly raised for the first time on appeal (see CPL 470.05[2] ; see also People v. Randall–Whitaker, 55 A.D.3d 931, 932, 869 N.Y.S.2d 555 ).