Matter of Norman v. Hynes, 2005-00060.

• Citation: 20 A.D.3d 125,2005 NY Slip Op 05794,799 N.Y.S.2d 222
• Decision Date: 05 July 2005
• Docket Number: 2005-00060.
• Parties: In the Matter of CLARENCE NORMAN, JR., Petitioner, v. CHARLES J. HYNES, as District Attorney of Kings County, et al., Respondents.
• Court: New York Supreme Court Appellate Division

20 A.D.3d 125

799 N.Y.S.2d 222

2005 NY Slip Op 05794

In the Matter of CLARENCE NORMAN, JR., Petitioner, v. CHARLES J. HYNES, as District Attorney of Kings County, et al., Respondents.

2005-00060.

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

July 5, 2005.

PROCEEDING pursuant to CPLR article 78 in the nature of prohibition (initiated in the Appellate Division of the Supreme Court in the Second Judicial Department) to enjoin respondents from taking any further action in the pending criminal prosecution of petitioner on the ground that they are acting in excess of their jurisdiction.

Roger Bennet Adler, New York City, for petitioner.

Charles J. Hynes, District Attorney, Brooklyn (Monique Ferrell of counsel), respondent pro se.

OPINION OF THE COURT

Per Curiam.

This is a proceeding pursuant to CPLR article 78 in the nature of prohibition against the District Attorney of Kings County and the Supreme Court Justice presiding over the case of People v Clarence Norman, Jr. As such, it originates in this Court (see CPLR 7804 [b]; 506 [b] [1]). We are not called upon or authorized in this proceeding to pass on the question of whether or not the evidence is legally sufficient to support the charges against the petitioner, Clarence Norman, Jr. We only examine whether the prosecution is barred because it breaches the separation of powers between the legislative and judicial branches of state government. If this prosecution does not invade legislative prerogatives, then we must decide whether Kings County lacks geographical jurisdiction over some or all of the counts in the indictment. A writ of prohibition may be sought to prohibit the prosecution of a criminal case where the prosecution intrudes on the prerogatives of another branch of the government (see Matter of Ohrenstein v Morgenthau, 153 AD2d 342, 348 [1989], affd 77 NY2d 38 [1990]), or where the underlying prosecution allegedly is placed in the wrong venue, known as geographical jurisdiction in Criminal Procedure Law article 20 (see Matter of Steingut v Gold, 42 NY2d 311, 315-316 [1977]).

The petitioner is a New York State Assemblyman as well as the Chairman of the Kings County Democratic Committee (hereinafter the KCDC). He is accused of 76 counts of offering a false instrument for filing in the first degree (Penal Law § 175.35) and one count of grand larceny in the third degree (Penal Law § 155.35), class E and D felonies, respectively. The counts of offering a false instrument for filing are based on the theory that the petitioner filed in Albany County, with the Speaker of the New York State Assembly (hereinafter the Speaker), expense vouchers for his travel expenses to and from Albany to discharge his duties as an Assemblyman. Unrevealed on the vouchers was the fact that his personal automobile expenses were all paid by the KCDC. The count of grand larceny in the third degree is based on the theory of larceny by false pretenses (Penal Law § 155.05 [2] [a]). The charge is in the third degree apparently because the aggregate of the vouchers for which the accused received reimbursement, also in Albany County, exceeds $3,000.

The petitioner made an omnibus motion in the underlying criminal prosecution, inter alia, seeking dismissal of the indictment for lack of geographical jurisdiction in Kings County and for violation of the doctrine of separation of powers, which precludes the judicial branch from passing on the nonjusticiable political question of whether he was entitled to reimbursement for travel expenses. In an extensive, thorough, and well-reasoned opinion, the respondent Justice, the Honorable Martin Marcus, denied these branches of the petitioner's omnibus motion. Justice Marcus rejected the petitioner's objection to geographical jurisdiction. He reasoned that CPL 20.40 (1) (a) authorized prosecution in Kings County. This section confers jurisdiction if "[c]onduct occurred within such county sufficient to establish . . . [a]n element of such offense." (CPL 20.40 [1] [a].) Referring to the evidence before the grand jury, Justice Marcus stated:

"This evidence was sufficient to establish that the defendant, throughout the period covered by the indictment, engaged in conduct in Kings County from which the grand jury could infer his knowledge that he did not pay for, and thus did not incur, the expenses for which he sought reimbursement for driving to Albany from Brooklyn and to Brooklyn from Albany. In other words, the grand jury could find from this evidence that he sought and obtained payment on the vouchers with the intent required for larceny by false pretenses, and that he possessed this intent in Brooklyn as well as in Albany. And from this evidence, the grand jury could find that he presented the vouchers for payment knowing they contained false statements or information, the mens rea required for the crime of Offering a False Instrument for Filing, and that he possessed this knowledge, too, in Brooklyn as well as in Albany."

Moreover, Justice Marcus upheld geographical jurisdiction on the basis of CPL 20.40 (4) (k) (ii): "An offense of offering of a false instrument for filing, or of larceny by means of a false pretense therein, may be prosecuted . . . in any county in which any of the goods or services for which payment or reimbursement is sought by means of such instrument were purported to have been provided." He stated that throughout the period alleged in the indictment, May 27, 1999, to November 29, 2002, the petitioner had "charged the cost of gas he obtained in Brooklyn, and the cost of the maintenance work he had performed on the cars in Brooklyn." From this Justice Marcus concluded:

"The gas the defendant purchased for cars in Brooklyn certainly constituted `goods,' and the maintenance work the defendant had done on the car in Brooklyn were certainly `services.' Thus, Kings County was, in the meaning of CPL 20.40 (4) (k) (ii), a county `in which any of the goods or services' for which the defendant sought `payment or reimbursement . . . were purported to have been provided.' . . . On this basis, Kings County has jurisdiction over those crimes charged in the indictment that related to the vouchers in which the defendant claimed a mileage allowance, in part, as reimbursement for those expenses."

He found that 45 of the 76 counts of false filing as well as the grand larceny count were supported in this manner by the proof before the grand jury.¹

Finally, Justice Marcus rejected the separation of powers argument because the prosecution does not call into question the propriety of reimbursing Assembly members nor the procedures used to accomplish this. Indeed, the prosecution proceeds on a theory that accepts these legislative rules and procedures for travel reimbursement. And, he rejected the argument that the reimbursement of travel expenses is part of the deliberative process of the legislative branch.

The petitioner contends that the travel vouchers that are the subject of counts 2 through 77 of the indictment did not call for reimbursement of expenses in traveling by his personal vehicle between Kings County and Albany. Instead, these vouchers assign an allowance at the federal rate of reimbursement for each mile traveled. Because this argument influences his position with respect to geographical jurisdiction as well as legislative prerogatives, it is useful to address it before analyzing the substance of the contentions presented by his petition. Without passing on the validity of the petitioner's position that the vouchers did not seek reimbursement for goods and services but only a mileage allowance, it is sufficient for present purposes to note that there was testimony before the grand jury to the effect that the mileage allowance is intended to reimburse for "actual and necessary transportation expenses" as authorized in Legislative Law § 5 (2) and that an Assembly member would not be entitled to receive the mileage allowance if he or she had not incurred these expenses.

The petitioner attacks the geographical jurisdiction to prosecute the counts in indictment No. 5617/03 as well as the subject matter jurisdiction to prosecute him for a matter that falls within the prerogatives of the legislative branch of government, in this case through the Speaker (see Legislative Law § 12 [4]), to approve payment for services and expenses of the Assembly. Though he instructed the grand jury with respect to geographical jurisdiction under CPL 20.40 (4) (k) only, the respondent Charles J. Hynes, as Kings County District Attorney (hereinafter Hynes), subscribes as well to the analysis of Justice Marcus under CPL 20.40 (1), even though the grand jury received no instructions thereunder. The indictment, however, following the 77th count, states "Jurisdiction for all counts herein lies within Kings County pursuant to Criminal Procedure Law Section 20.40 (4) (k) and Section 24.40 (1) [sic]." Hynes also opposes the petitioner's separation of powers analysis because this prosecution does not invade the exclusive province of the Speaker to determine what type of expenses are authorized for payment; it only seeks to hold the petitioner responsible for securing reimbursement of actual travel expenses he never incurred. Indeed, Hynes notes that the "Assembly Member Per Diem Expenses Reimbursement Voucher" form contains a certification that the petitioner signed: "I hereby certify that the above expenses were incurred in the rendering of legislative duties, and that the above bill is just, true and correct, and that the balance shown is actually due and owing." Hynes also relies on the "Guidelines for Travel Reimbursement" established by the Speaker himself which conclude with a bold-type note: "Travelers are reminded that the submission of fraudulent travel expense claims for reimbursement may be a felony or misdemeanor offense under Articles 175 or 195 of the State Penal Law, and may also be subject to...