People v. Alba

Decision Date03 April 2014
Citation43 Misc.3d 878,984 N.Y.S.2d 267,2014 N.Y. Slip Op. 24090
CourtNew York Supreme Court
PartiesThe PEOPLE of the State of New York, Plaintiff, v. Nouel ALBA, Defendant.

OPINION TEXT STARTS HERE

Assistant District Attorney Daniel Chung, Bronx County District Attorney's Office, Bronx, for the People.

Justine Olderman, Esq. The Bronx Defenders Bronx, for the defendant.

MARTIN MARCUS, J.

On May 10, 2013, the defendant was indicted by the Grand Jury of Bronx County and charged with scheme to defraud in the first degree, Penal Law § 190.65(1)(a), and identity theft in the second degree, Penal Law § 190.79(3). In an omnibus motion, the defendant seeks, inter alia, dismissal of both counts of the indictment, the scheme to defraud count on statutory double jeopardy grounds, and the identity theft count for legal insufficiency of the evidence. For the reasons set forth below, the defendant's motion to dismiss the indictment is granted.

THE SCHEME TO DEFRAUD COUNT

Penal Law § 190.65(1)(a) provides that the crime of scheme to defraud in the first degree is committed by a person who:

engages in a scheme constituting a systematic ongoing course of conduct with intent to defraud ten or more persons or to obtain property from ten or more persons by false or fraudulent pretenses, representations or promises, and so obtains property from one or more of such persons.

According to the evidence before the grand jury, the defendant posted a solicitation on Facebook in which she pretended to be the paternal aunt of Noah Pozner, one of the victims of the Sandy Hook Elementary School shooting in Newtown, Connecticut, and asked for money for the supposed purpose of paying for his funeral and the funerals of other victims. In response, a number of people sent the defendant money via a PayPal account. The defendant was arraigned on the indictment on May 13, 2013.

In connection with a Federal investigation into her conduct, the defendant had previously been charged in the United States District Court of Connecticut with making false statements, 18 U.S.C. § 1001. On June 6, 2013, she pled guilty not only to that charge, but also to wire fraud, 18 U.S.C. § 1343, a charge which was filed the day of her plea. She was subsequently sentenced to eight months incarceration. Wire fraud is committed by a person who:

having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, transmits or causes to be transmitted by means of wire, radio, or television communication in interstate or foreign commerce, any writings, signs, signals, pictures, or sounds for the purpose of executing such scheme or artifice....

18 U.S.C. § 1343. In connection with her plea, the defendant admitted, inter alia, that, using Facebook, she had misrepresented herself to be the aunt of a child killed in the Sandy Hook shooting, solicited donations for a “funeral fund” for her supposed nephew and other shooting victims, and as a result, received donations that totaled less than five thousand dollars, which she returned after potential victim-donors discovered her misrepresentations. 1

The defendant asserts that, as a result of her wire fraud conviction, CPL § 40.20(2) bars her prosecution for scheme to defraud in the first degree. According to that provision,

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; or (b) 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....

The People concede that the scheme to defraud count and the Federal wire fraud conviction are based on the same “criminal transaction.” 2 They contend, however, that the defendant may still be prosecuted for the State offense because the prosecution falls within both of the exceptions contained in CPL § 40.20(2). Neither applies in this case.

First, the offenses as defined do not, within the meaning CPL § 40.20(2)(a), “have substantially different elements,” nor are the acts establishing one offense ... in the main clearly distinguishable from those establishing the other.” Considering the first of these two prongs, it is evident that each crime has elements the other does not. Scheme to defraud in the first degree requires that the defendant actually “obtain[ ] property from one or more ... persons,” Penal Law § 190.65(1)(a), while wire fraud does not. Wire fraud requires the transmission of “any writings, signs, signals, pictures, or sounds” by use of “wire, radio, or television communication in interstate or foreign commerce,” 18 U.S.C. 1343, while scheme to defraud in the first degree does not. The question is not, however, whether the offenses have any different elements, but whether they have “substantially different elements.” I find that they do not.

As the Court of Appeals has recognized, “the Legislature in amending the Penal Law to add crimes based on a scheme to defraud (Penal Law §§ 190.60, 190.65; L.1976, ch. 384), modeled the offenses upon the Federal mail fraud statute.” People v. First Meridian Planning Corp., 86 N.Y.2d 608, 616, 635 N.Y.S.2d 144, 658 N.E.2d 1017 (1995), citing William C. Donnino, Practice Commentary, McKinney's Cons.Laws of N.Y., Book 39, Penal Law § 190.60. 3 Indeed, in explicating the language the Legislature used to define a scheme to defraud, the Court of Appeals has “look[ed] to Federal [mail fraud] precedents applying similar statutory language.” First Meridian Planning Corp., 86 N.Y.2d at 616, 635 N.Y.S.2d 144, 658 N.E.2d 1017. Wire fraud is mail fraud's “twin,” 4 and like mail fraud, requires a “scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises.” 18 U.S.C. §§ 1343, 1341. 5

The “scheme constituting a systematic ongoing course of conduct” required for scheme to defraud is essentially the “scheme or artifice” required for both wire fraud and mail fraud. As one commentator has observed, although [s]ections 190.60 and 190.65 contain language not found in the federal mail fraud section referring to a scheme constituting a systematic ongoing course of conduct ... [,]' [t]his does not introduce a new, different element of the offense, but codifies what is contained in the concept scheme to defraud' under the federal statute.” Givens, Additional Commentary, McKinney's Cons.Laws of N.Y. Book 39, Penal Law § 190.60, 1988 Pocket Part, p. 277. Similarly, the mens rea required for scheme to defraud, an “intent to defraud ... or to obtain property ... by false or fraudulent pretenses, representations or promises,” Penal Law § 190.65(1)(a), is also essentially the same as that required for wire fraud and mail fraud, since the purpose of the “scheme or artifice” required for those two crimes must be to “ obtain [ ] money or property by means of false or fraudulent pretenses, representations, or promises.” 18 U.S.C. §§ 1343, 1341.

The fact that scheme to defraud in the first degree requires that property be obtained from at least one victim also does not mean that the two crimes have “substantially different” elements. In Abraham v. Justices of New York Supreme Court of Bronx Cnty., 37 N.Y.2d 560, 376 N.Y.S.2d 79, 338 N.E.2d 597 (1975), the Court of Appeals held that the prosecution of the defendant for criminal possession of dangerous drugs in the first degree, Penal Law, § 220.23 (repealed L.1973, ch. 276, § 18), was barred because of a prior conviction in Federal court for conspiring to distribute and possess with the intent to distribute narcotic drugs. 21 U.S.C. §§ 812, 841(a)(1), (b)(1)(A). Because “the same possession of the same drugs was among the acts charged and proved and for which a conviction was had,” the Court found “no substance in the claim, hypothetically posited, that the Federal convictions could have been obtained without proof of possession of the drugs.” Abraham, 37 N.Y.2d at 567, 376 N.Y.S.2d 79, 338 N.E.2d 597 (internal citations and quotation marks omitted); see also People v. Abbamonte, 43 N.Y.2d 74, 400 N.Y.S.2d 766, 371 N.E.2d 485 (1977). Similarly, here the claim, “hypothetically posited,” that the wire fraud conviction could have been obtained without proof that the defendant obtained property from at least one victim does not render the elements of scheme to defraud in the first degree and wire fraud substantially different.

Neither does the fact that wire fraud requires the use of “wire, radio, or television communication in interstate or foreign commerce,” 18 U.S.C. § 1343, and that a scheme to defraud conviction, “hypothetically posited,” could be obtained without proof of this element. In People v. Lo Cicero, 14 N.Y.2d 374, 251 N.Y.S.2d 953, 200 N.E.2d 622 (1964), the defendant was charged with a robbery for which he had been acquitted in Federal court. The Court of Appeals held that [t]he additional element of obstruction of interstate commerce, necessarily present in the Federal indictment, does not diminish the substantial identity of the two charges,” and dismissed the robbery charge. Id. at 379, 251 N.Y.S.2d 953, 200 N.E.2d 622 (citations omitted). Here, too, despite the jurisdictional interstate commerce requirement for wire fraud, 6 that crime and scheme to defraud have substantially similar elements.

In any case, the People's argument fails when considering the second prong of CPL 240.20(2)(a), which requires that the acts establishing one offense [be] in the main clearly distinguishable from those establishing the other.” Here, the conduct constituting the Federal crime and that constituting the State crime are, if not identical, certainly...

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