Matter of Martinucci v. Becker, 503575.

• Decision Date: 11 April 2008
• Docket Number: 503575.
• Citation: 855 N.Y.S.2d 718,2008 NY Slip Op 03282,50 A.D.3d 1293
• Parties: In the Matter of AMERICO MARTINUCCI, Petitioner, v. CARL F. BECKER, as Judge of the County Court of Delaware County, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

50 A.D.3d 1293

855 N.Y.S.2d 718

2008 NY Slip Op 03282

In the Matter of AMERICO MARTINUCCI, Petitioner, v. CARL F. BECKER, as Judge of the County Court of Delaware County, et al., Respondents.

503575.

Appellate Division of the Supreme Court of the State of New York, Third Department.

Decided April 11, 2008.

Proceeding pursuant to CPLR article 78 (initiated in this Court pursuant to CPLR 506 [b] [1]) to prohibit respondents from trying petitioner in the County Court of Delaware County on an indictment charging him with rape in the first degree (three counts), sexual abuse in the first degree (two counts) and endangering the welfare of a child.

Kavanagh, J.

During the summer of 2003, petitioner was alleged to have had sexual intercourse on three separate occasions with a 10-year-old girl. He was later charged by indictment in Delaware County with three counts of rape in the first degree, two counts of sexual abuse in the first degree and endangering the welfare of a child. Because petitioner videotaped one of these sexual assaults, he was also charged by federal indictment with coercing and enticing a "minor ... to engage in sexually explicit conduct for the purpose of producing visual depictions of such conduct" (see 18 USC § 2251 [a]). On June 12, 2007, while awaiting trial on the state charges, petitioner pleaded guilty to the one count contained in the federal indictment entitled "Production of Child Pornography."¹ Before he could be sentenced, petitioner moved to dismiss the state indictment on the ground that any prosecution for charges contained in it was effectively barred by his guilty plea in federal court pursuant to the double jeopardy provisions as set forth in CPL 40.20 (2).² Upon County Court's denial of this motion, petitioner commenced this CPLR article 78 proceeding in the nature of prohibition seeking to bar his prosecution for the crimes set forth in the state indictment.

Petitioner's contention that a trial in state court is barred by virtue of his guilty plea to the one charge contained in the federal indictment is meritless.³ Initially we note that, for double jeopardy to attach under CPL 40.20, it must be established that both prosecutions involve offenses committed either during the same criminal act or during a single criminal transaction. Petitioner was only prosecuted federally for one of the three sexual assaults he is alleged to have perpetrated on this child; the other two that are alleged to have been committed at different times and places are separate and distinct criminal acts and are not part of the same criminal transaction (see People v Van Nostrand, 217 AD2d 800 [1995], lv denied 87 NY2d 851 [1995]). For that reason, petitioner's prosecution in state court for the two sexual assaults not covered by the federal indictment does not have double jeopardy implications and is not barred by application of the provisions of this statute.

For the sexual assault that was the subject of both indictments, state law permits such a prosecution—even if for the same act or criminal transaction—if "[e]ach 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 40.20 [2] [b]). While both indictments charge crimes emanating from the alleged sexual assault of a minor, the elements which need to be proved for there to be a conviction are very different. Under state law a prosecution for rape or sexual abuse requires that it be established that the victim had been subjected to sexual intercourse or sexual contact. The federal crime contains no such requirement; instead, under the federal statute, it must be proven that a minor was enticed or coerced to engage in some form of "sexually explicit conduct for the purpose of producing any visual depiction of such conduct" (18 USC § 2251 [a]) and that materials used to produce those images were secured through the use of interstate commerce. While petitioner concedes that the statutory offenses in both indictments do indeed contain different elements, he maintains that CPL 40.20 (2) (b) is implicated in this proceeding because both statutes as defined are designed to prevent the same kind of harm or evil—the carnal abuse of children.

The...