People v. Aleynikov

• Decision Date: 14 August 2018
• Docket Number: 0447/12
• Citation: 83 N.Y.S.3d 798,61 Misc.3d 700
• Parties: The PEOPLE of the State of New York, Plaintiff, v. Sergey ALEYNIKOV, Defendant.
• Court: New York Supreme Court

61 Misc.3d 700

83 N.Y.S.3d 798

The PEOPLE of the State of New York, Plaintiff,

v.Sergey ALEYNIKOV, Defendant.

0447/12

Supreme Court, New York County, New York.

Decided on August 14, 2018

New York County District Attorney Cyrus R. Vance, Jr. (Elizabeth Roper, of counsel) for the People.

Marino, Tortorella & Boyle, P.C. (Kevin Marino, of counsel) for the Defendant.

Daniel P. Conviser, J.

The Defendant moves to set-aside the verdict against him pursuant to CPL 330.30 (1). For the reasons outlined below, that motion is denied. The Court agrees with the Defendant that this Court's provision of the "figurative definition" of the word "tangible" to the jury in this case in response to a jury note was error. The Court believes, however, that this error was harmless. The Court also believes, for the reasons outlined infra , that this Court's provision of the figurative definition to the jury might well not be seen as error at all, by the First Department or the Court of Appeals. This Court rejects the Defendant's double-jeopardy argument primarily because of the law of the case doctrine. The same arguments made by the Defendant here were previously addressed on the merits and denied in a decision by Justice Zweibel, formerly of this Court.

Brief Outline of Prior Proceedings

The litigation underlying this conviction has consumed a nine year odyssey of federal and state proceedings, resulted in extended opinions by multiple federal and New York courts and will not be outlined in any detail here. Nor will this decision recount in any detail the facts which have been amply outlined in these decisions.

Briefly, the charges in this case arose from the Defendant's wrongful taking of "high-frequency trading" ("HFT") computer code to trade securities, which he used while working as a computer programmer in the technology division of the international financial firm, Goldman Sachs ("Goldman"). As the Second Circuit explained in their decision in Aleynikov's federal prosecution for the same conduct which was prosecuted in the instant case, discussed infra , high frequency trading "is a mechanism for making large volumes of trades in securities and commodities based on trading decisions effected in fractions of seconds. Trades are executed on the basis of algorithms ...". United States v. Aleynikov, 676 F.3d 71, 73 (2d Cir. 2012).

Aleynikov encrypted and transferred a large volume of Goldman's HFT code to a server in Germany and then to Aleynikov's home computer in New Jersey prior to the termination of his employment at Goldman. At the time, he had been hired to work developing HFT source code for a competitor. As this Court noted in its initial decision dismissing the indictment in this case (a decision which was later overturned by appellate courts, as outlined infra ): "There was no evidence [at Defendant's state trial] that Aleynikov ever duplicated the source code he downloaded to a piece of paper, any medium where it could be touched or any medium outside a computer or thumb drive". People v. Aleynikov, 49 Misc.3d 286, 290, 15 N.Y.S.3d 587 (New York County Supreme Court 2015) (subsequent history outlined infra ).

The Defendant was charged in the state prosecution in this case with one count of Unlawful Use Of Secret Scientific Material in violation of Penal Law § 165.07 for conduct which occurred on June 1, 2009 (Count 1); one count alleging a violation of the same statute for conduct which occurred on June 5, 2009 (Count 2) and one count of Unlawful Duplication of Computer Related Material in the First Degree in violation of Penal Law § 156.30 (1) for conduct which occurred on June 5, 2009 (Count 3). After a jury trial presided over by this Court, the jury was unable to reach a unanimous verdict on Count 1, returned a guilty verdict under Count 2 and a not-guilty verdict under Count 3. The jury deliberated for eight days and sent 23 notes to the Court prior to rendering its partial verdict. The verdict was reached by a ten person jury.¹ Unlawful Use of Secret Scientific Material (the sole count the Defendant was convicted of) is a Class E felony.

After the jury's verdict, this Court granted the Defendant's motion for a trial order of dismissal with respect to the two counts for which that motion remained outstanding (Counts 1 & 2). In an extended opinion, this Court held that, viewing the evidence in a light most favorable to the People, the prosecution did not prove the Defendant made a "tangible reproduction or representation" of secret scientific material as required by the statute. This Court also held, under the same evidentiary standard, that the People did not demonstrate Aleynikov had the "intent to appropriate ... the use of secret scientific material" as required by the law. People v. Aleynikov, supra .

This Court's decision was reversed by a unanimous decision of the First Department in People v. Aleynikov, 148 A.D.3d 77, 48 N.Y.S.3d 9 (1st Dept. 2017). The First Department reinstated the verdict. The Court of Appeals then granted leave to appeal and unanimously affirmed the First Department's decision. People v. Aleynikov, 31 N.Y.3d 383, 79 N.Y.S.3d 583, 104 N.E.3d 687 (2018). The Court of Appeals held that the trial evidence was sufficient to show both that Aleynikov made a "tangible reproduction or representation" of secret scientific material and had the "intent to appropriate" that material. This Court continues to respectfully disagree with the decisions of the First Department and the Court of Appeals for the reasons outlined in this Court's prior decision and as partially outlined infra. Following the Court of Appeals' ruling, the Defendant raised two clams in the instant motion, which are addressed here.

Proceedings Relevant to Alleged Incorrect Jury Instructions

The first issue raised by the Defendant here concerns the response this Court provided to the jury in response to a jury question during deliberations. That response, which is outlined infra , concerned the definition of the statutory word which was one of the two bases on which this Court vacated the verdict: the word "tangible" under the Secret Scientific Material statute. Specifically, the Defendant asserts that this Court should not have informed the jury that one of the dictionary definitions for the word "tangible" was "capable of being understood by the mind" (the "figurative definition"). The Secret Scientific Material counts at issue here read as follows:

A person is guilty of unlawful use of secret scientific material when, with intent to appropriate to himself or another the use of secret scientific material, and having no right to do so and no reasonable ground to believe that he has such right, he makes a tangible reproduction or representation of such

secret scientific material by means of writing, photographing, drawing, mechanically or electronically reproducing or recording such secret scientific material. Penal Law § 165.07.

The term "Secret Scientific Material" is also defined in the Penal Law:

"Secret Scientific Material" means a sample, culture, micro-organism, specimen, record, recording, document, drawing or any other article, material, device or substance which constitutes, represents, evidences, reflects, or records a scientific or technical process, invention or formula or any part or phase thereof, and which is not, and is not intended to be, available to anyone other than the person or persons rightfully in possession thereof or selected persons having access thereto with his or their consent, and when it accords or may accord such rightful possessors an advantage over competitors or other persons who do not have knowledge or the benefit thereof. Penal Law § 155.00 (6).

In its final instructions to the jury, the Court provided the standard pattern jury instruction for the Secret Scientific Material counts, without defining the word "tangible". The Court denied the Defendant's application to define the word "tangible" to the jury. The Court also indicated to the parties that, were the jury to request a definition of the word, the Court would provide the word's three common dictionary definitions. The Defendant objected to this approach, and particularly objected to the Court providing any definition of "tangible" which would indicate the term could mean "capable of being understood by the mind".

The jury then did send a note asking: "What is the definition of tangible? Is computer data tangible".² Over the Defendant's objections, the Court instructed the jury as follows:

The reason I did not define the word "tangible" for you when I gave you my final instructions on the law is because the law doesn't define the word and that means the word has its ordinary meaning, okay?

Now sometimes dictionary definitions can be helpful as guideposts to help a jury understand the ordinary meaning of a word.

Dictionary definitions are not legal instructions, are not the equivalent of legal definitions and they're not controlling, but dictionary definitions can also be useful guideposts to helping the jury understand the plain meaning of a word, the ordinary another [SIC] meaning of a word.³

So I'm going to read you in a minute three definitions of tangible from a dictionary.

* * * * * * * * * * * * * *

The final question you have, "Is computer data tangible?" that's a question of how the law applies to the fact[s] and that's a question you're going to have to answer...

So let me read you the first the dictionary definitions, okay?

Tangible means having or possessing physical form, corporeal, that's number one.

Two, capable of being touched and seen, perceptible to the touch, capable of being possessed or are⁴ realized.

And three, capable of being understood by the mind.⁵

The Defendant subsequently restated his objection to this answer and asked the Court for a corrected instruction, applications this Court denied. During their subsequent deliberations, the jury asked for multiple readbacks and exhibits, asked multiple questions about the larceny aspects of...