The defendant was indicted by a Nassau County Grand Jury on September 23, 1985, charged with Grand larceny, Second Degree. In the indictment, it is alleged that, on or about July 15, 1985, the defendant stole a 1984 Pontiac Trans-Am from an automobile dealership in Hicksville, New York.
A Nassau County Criminal lawyer said that on August 19, 1985 the defendant was charged in a felony complaint with stealing the aforesaid Pontiac, and on September 23, 1985 he was indicted for Grand larceny in the Third Degree in connection with that alleged theft.” The People do not contest the factual allegations set forth by defense counsel only his legal conclusions.
The fundamental principle that a defendant may not be placed twice in jeopardy for the same offense is embodied in the federal and New York State constitutions, and in the statutory law of this state. In the instant case, there is no federal constitutional issue involved even though the 5th Amendment prohibition was ruled applicable to the states in several cases. Under the “dual sovereignties” doctrine, successive State and Federal prosecutions based on the same transaction or conduct do not offend the double jeopardy prohibition. Therefore, the challenge here rests solely upon the application of CPL 40.20
CPL 40.20 supersedes the “dual sovereignties” doctrine, and extends double jeopardy protection generally to offenses arising out of a common event. Unless one of the seven enumerated exceptions set forth in CPL 40.20(2) is made out, a person may not be “separately prosecuted for two offenses based upon the same act or criminal transaction.” Thus, “absent the statutory exceptions, no matter the number of statutory offenses technically violated, or the number of jurisdictions involved, an accused is not to suffer repeated prosecution for the same general conduct.”
The Court must therefore first determine whether the instant prosecution for larceny of a 1984 Pontiac Trans-Am automobile and the prior prosecution in New Jersey for “receiving” stolen property (to wit: the same Trans-Am one day later) arise from the same criminal transaction.
There is no question, and the People do not really contest, that this prosecution and the previous prosecution in New Jersey arise out of a “single criminal incident,” and are integral parts of a “single criminal venture.”
However, the determination that only one criminal transaction is involved “… does not automatically bar a second prosecution.” Seven exceptions, set forth in CPL 40.20(2), “qualify the general proscription.” The People argue that the first two such exceptions apply to this case.
The first provides, “A person may not be separately prosecuted for two offenses based upon the same act or criminal transaction unless: (a) The offenses as defined have substantially different elements and the acts establishing one offense are in the main clearly distinguishable from those establishing the other”
The People must prove value and theft by the defendant in a grand larceny, but under the New Jersey statute merely possession and knowledge of property stolen is sufficient.”
The state of the law in New York with respect to the double jeopardy/previous prosecution considerations implicated by successive prosecutions for larceny and possession of stolen property is clear. It is generally held that the exception contained in CPL 40.20[2][a] is inapposite because the acts establishing the larceny are “not clearly distinguishable from those establishing the possessory crime.” As emphasized above, the statutory exception is couched in conjunctive, not alternative, terms. Both parts of the statutory exception must be satisfied before it may be invoked in a particular criminal transaction to defeat a previous prosecution claim. That portion of the exception requiring that the acts establishing the offenses be “clearly distinguishable” is not so satisfied. The exception contained in CPL 40.20(2)(b) is generally held to be inapplicable to successive larceny/possession prosecutions because the harms or evils to be prevented by the respective statutes are not “very different.” “In fact, in New York, criminal possession of stolen property is but a form of larceny.” Furthermore, the other requirement of the paragraph (b) exception has also been deemed satisfied in larceny/possession prosecutions because, “the larceny charge would have been impossible without the criminal possession. Thus the latter is considered a lesser included offense of the former.
Therefore, if the New Jersey statutes treating larceny and possession of stolen property are not radically dissimilar from those in New York, the rationale of, and reasoning contained in, the foregoing cases would apply to this case and bar the instant prosecution. The defendant was convicted in New Jersey of “Receiving Stolen Property.” In pertinent part, that statute provides, “A person is guilty of theft if he knowingly receives or brings into this State movable property of another.
The statute thus makes the knowing possession of stolen property, with an intent to benefit someone other than the owner, a crime. And, that, of course, is the basic definition of “criminal possession of stolen property” in New York. “Theft” is the New Jersey equivalent of “larceny” and is defined, for the purposes of this case, as follows: “A person is guilty of theft if he unlawfully takes, or exercises unlawful control over, movable property of another with purpose to deprive him thereof.”
“Deprive” means: ” … (1) to withhold or cause to be withheld property of another permanently or for so extended a period as to appropriate a substantial portion of its economic value, or with purpose to restore only upon payment of reward or other compensation; or (2) to dispose or cause disposal of the property so as to make it unlikely that the owner will recover it.”
“A person steals property and commits larceny when, with intent to deprive another of property or to appropriate the same to himself or to a third person, he wrongfully takes, obtains or withholds such property from an owner thereof.”
“The larceny, fraud and receiving being offenses of separate and inconsistent nature, there results the legal concept that the receiver must be someone other than the thief, or as our criminal court has stated, ‘ that a person cannot be guilty of larceny and receiving of the same property.’
Finally, New Jersey’s lack of geographical jurisdicition over the actual stealing of the automobile does not “dilute” either constitutional or statutory double jeopardy/previous prosecution protections.
Double jeopardy claims invoked under CPL 40.20 often arise where another State or the Federal Government has previously prosecuted a New York defendant for one segment of a criminal transaction, although only New York has jurisdiction over another, perhaps more serious segment of the same transaction.
Based upon the foregoing, it is clear that the double jeopardy/previous prosecution analyses contained in several jurisprudence apply here. This case does not fit within the parameters of any of the exceptions set forth in CPL 40.20(2). Specifically, the acts establishing larceny are not “clearly distinguishable” from those establishing the possessory crime (CPL 40.20[2][a] ), and the statutory provisions involved are not designed to prevent “very different” kinds of harm or evil (CPL 40.20[2][b] ).
The instant prosecution of the defendant for larceny of a 1984 Pontiac Trans-Am on July 15, 1985 is therefore barred by his previous conviction in New Jersey for possession of that stolen vehicle on July 16, 1985. (CPL 40.20[1].) That portion of the defendant’s motion seeking an Order dismissing the instant indictment pursuant to CPL 210.20(1)(e) is granted.
If you are a victim of theft or fraud, you can consult our Nassau County Grand Larceny Attorneys here in Stephen Bilkis and Associates. We are here to help you to the best of our ability and skills. In general, our Nassau County Criminal Lawyers will help you with your other criminal law related cases.