People v. Babbush
| Citation | 566 N.Y.S.2d 475,150 Misc.2d 174 |
| Parties | The PEOPLE of the State of New York v. Howard BABBUSH, Defendant. |
| Decision Date | 18 January 1991 |
| Court | United States State Supreme Court (New York) |
Robert Morgenthau, Dist. Atty., New York County, Michael Cherkasky, Michael Warren, Asst. Dist. Attys., of counsel, for the People.
James Pascarella, Mineola, for defendant.
The defendant herein is and was at the time of indictment, a member of the New York State Senate from the 17th Senate district in Brooklyn. The defendant was initially charged with being part of a conspiracy to unlawfully employ the State Senate payroll to compensate campaign workers. These charges were dismissed by the Court of Appeals on grounds of lack of notice that such conduct would constitute the crime of larceny. [People v. Ohrenstein, 77 N.Y.2d 38, 52, 563 N.Y.S.2d 744, 565 N.E.2d 493]. The defendant seeks to reargue the issue of sufficiency of the evidence before the Grand Jury to support the remaining counts in light of the Court of Appeals' holding.
The Court of Appeals sustained those counts of the indictment relating to so-called "no show" employees. In regard to those counts, including the counts currently before this court, the Court of Appeals held:
The theory underlying these counts is that the defendant[ ] filed false [statements] when [he] certified on the payroll records that [this] employee[ ] performed 'proper duties,' and committed larceny when [he] induced the state to rely on the false statements. Here there is no question as to what 'proper duties' include, because no matter how they are defined, they must at least include the performance of some services, of some type, at some time. Here it is alleged that [this] employee[ ] did nothing, that the defendant[ ] knew this and that the defendant[ ] also knew that [she] had no duties. These allegations are sufficient to sustain these criminal counts (PL 155.30, 155.35, 175.35).
It is clear from the foregoing language that the evidence before the Grand Jury was sufficient to support the counts remaining. As this court has previously held:
It has been held, antecedent to this prosecution, that a public official who places on a public payroll under his supervision, persons whom the official knew and intended would not perform any work to earn the money paid them, is guilty of larceny of the public funds paid as salaries. [People v. Riccio, 91 A.D.2d 693, 458 N.Y.S.2d 259 (3d Dept.1982) ]. This conduct has been held to constitute larceny by false pretenses based upon the misrepresentation that the person on the payroll will perform the work for which the salary is paid [People v. Hochberg, 87 Misc.2d 1024, 1030-1031, 386 N.Y.S.2d 740 (Sup.Ct.Albany Co.1976), aff'd, 62 A.D.2d 239, 404 N.Y.S.2d 161 (3d Dept.1978), mot. for lv. to app. den., 44 N.Y.2d 953, 408 N.Y.S.2d 1033, 380 N.E.2d 343].
[People v. Ohrenstein, et al., (Sup.Ct.N.Y.Co.) (Slip Op. July 27, 1988) pp. 8-9 (NOR) ]
The defendant's argument that he expected Ms Zebersky to work, or that she in fact performed some work in exchange for her salary, are matters of fact which the evidence clearly puts in issue and which are for the jury to resolve.
The prosecution principally put the facts just recited in issue by means of Ms Zebersky's testimony, including conversations she allegedly tape recorded while speaking to the defendant, in which the defendant directly reveals his knowledge that Ms Zebersky is not working although she is collecting the salary he is certifying for her, and in which he explicitly refuses her requests for work and even explicitly directs Ms Zebersky not to work.
These tapes corroborated Ms Zebersky's testimony and were authenticated by the testimony of a detective who was familiar with both voices. [See, People v. Farruggia, 61 N.Y.2d 775, 473 N.Y.S.2d 158, 461 N.E.2d 295; cf., People v. Cona, 49 N.Y.2d 26, 32 n. 1, 424 N.Y.S.2d 146, 399 N.E.2d 1167.]
The defendant also seeks to reargue the court's previous ruling in regard to venue. Quite apart from the predicate for venue of the counts encompassed by the campaign conspiracy, this court held "that there is a sufficient jurisdictional predicate under CPL 20.40 subd. 4(k), in that ... Zebersky [was] paid purportedly to provide services to the district office[ ] of Senator[ ] ... Babbush ... located at 270 Broadway in New York County". [ People v. Ohrenstein, et al., supra, (Sup.Ct.N.Y.Co.) (Slip Op. June 15, 1988) at p. 122 n. 31]. Section 20.40 subd. 4(k)(ii) states that jurisdiction "is accorded to the courts of [a] county pursuant to ... the following rules ..." [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."
The defendant argues that no factual predicate exists for this holding. The court calls the defendant's attention to the testimony that Ms Zebersky ran Senator Babbush's district office, and that it was her "responsibility to work out of 270 Broadway on non-session days when she was not in Albany" and that no other staff members worked in the district office. If credited, this evidence is a sufficient predicate for the petit jury to find venue in New York County.
The events for which the defendant stands indicted occurred from mid-July, 1983 until mid-April, 1984. The venue statute under which New York County asserts jurisdiction was enacted in 1985. [Ch. 575 L. 1985, eff. Nov. 1, 1985]. The indictment herein was returned in late 1987. The defendant argues that to apply this venue statute to conduct occurring before its effective date would violate the legislative intent in enacting the statute, would be contrary to "fairness and even due process", and would improperly deprive defendant of an unspecified "substantial right." The court finds no merit to these contentions for the following reasons.
Venue, like jurisdiction, is a legislative creation, subject to constitutional limitations not implicated by the statute at issue here. [People v. Goldswer, 39 N.Y.2d 656, 385 N.Y.S.2d 274, 350 N.E.2d 604 (1976).] Although not in the specific context of venue, courts of our State have recognized legislative power to confer jurisdiction upon an existing court, to try offenses that occurred prior to the conferral of such jurisdiction. [People v. Green, 201 N.Y. 172, 94 N.E. 658 (1911) ] The basis for this holding has been described in these terms: [Jacobus v. Colgate, 165 App.Div. 227, 230, 150 N.Y.S. 1056 [2d Dept.1914], rev'd on other grounds, 217 N.Y. 235, 111 N.E. 837 (1916) ]. Such statutes are not thereby given retroactive effect, as the defendant here contends. They are "merely a regulation of the procedure for the vindication of a right already legally enforceable" [Jacobus v. Colgate, 217 N.Y. 235, 244, 111 N.E. 837 (1916) ], in this case by the State in a criminal proceeding.
Courts of other jurisdictions have held that statutes effecting a change of venue are to be prospectively applied. For example, the United States Supreme Court held that an act which restricted to the judicial division within which a crime occurred, jurisdiction of the various district courts of Minnesota which until that time had been plenary throughout the district, was to be ...
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People v. Ohrenstein
...denied for the reasons set forth herein. 1 The prosecution of Senator Babbush has been severed. See People v. Babbush, 150 Misc.2d 174, 566 N.Y.S.2d 475 [Sup.Ct.N.Y.Co.1991].2 Although the reviser's notes are silent as to the intended scope of the definition of knowledge within the Penal La......