People v. Carrabotta, 2003 NY Slip Op 23901 (NY 4/28/2004)
| Decision Date | 28 April 2004 |
| Citation | 2003 NY Slip Op 23901 |
| Parties | THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff, v. SHUYING CARRABOTTA, Defendant. |
| Court | New York Court of Appeals Court of Appeals |
Lawrence S. Kerben for defendant.
Richard A. Brown, District Attorney (Michael Whitney and Christine Battaglia of counsel), for plaintiff.
The felony complaint in this matter originally charged defendant with unlawful practice of the profession of massage in violation of Education Law § 6512 (1), a class E felony. Upon the People's prompt application to reduce the felony complaint pursuant to CPL 180.50, the felony charge was reduced to attempted unlawful practice of the profession of massage in violation of Penal Law § 110.00 and Education Law § 6512 (1). Defendant now moves to dismiss the accusatory instrument on the ground that the foregoing attempt charge is a nonexistent crime.
The court agrees that the reduced charge of attempted unlawful practice of the profession of massage is a nonexistent crime. The only real question for the court is whether the appropriate remedy is to dismiss the reduced charge and the accusatory instrument, or reinstate the felony complaint.
Education Law § 6512 (1), entitled "Unauthorized practice a crime," provides, in pertinent part, that "Anyone not authorized to practice under this title who practices or offers to practice or holds himself out as being able to practice in any profession in which a license is a prerequisite to the practice of the acts.1
The factual portion of the accusatory instrument sets forth the following allegations:
A supporting deposition from the undercover detective accompanies the accusatory instrument, as does a certified record from the Division of Professional Licensing Services of the New York State Education Department, corroborating deponent's allegation that defendant is not licensed to practice massage therapy.
On the adjourned date following defendant's arraignment on the felony complaint, the People successfully sought, pursuant to CPL 180.50, to reduce the foregoing class E felony to a class A misdemeanor, attempted unlawful practice of the profession of massage in violation of Penal Law § 110.00 and Education Law § 6512 (1). Upon the CPL 180.50 reduction, the matter was adjourned to an all purpose part and defendant promptly moved to dismiss the accusatory instrument on the ground that the foregoing attempt charge is a nonexistent crime.
Because the extraordinarily expansive statutory language in Education Law § 6512 (1) (), as charged here, already fully embraces an attempt to practice, the court agrees that attempted unlawful practice of the profession of massage is a nonexistent crime. (See People v. Lupinos, 176 Misc 2d 852, 854-855 [Crim Ct, Richmond County 1998]; People v. Ching Fong, 186 Misc 2d 477, 479 [Crim Ct, NY County 2000].)
In People v. Jelke (1 NY2d 321, 330 [1956]), the Court of Appeals ruled that an attempt is itself already a completed crime under a substantive criminal statute, if "the statutory definition of the essence of a crime is the attempt to do a certain act" (emphasis added). The nature of the attempt is often included in the actual statutory language of the penal provision, as in the statute defining resisting arrest, Penal Law § 205.30 (); the statute defining obstructing governmental administration, Penal Law § 195.05 (); the statute defining intimidating a witness in the third degree, Penal Law § 215.15 (1) (); and the statute defining tampering with a witness in the third degree, Penal Law § 215.11 (1) ().
Sometimes, however, the nature of the attempt is evinced by the broad and expansive attempt like language of the penal statute, as in the provision defining jostling, Penal Law § 165.25 (), along with case law defining the crime as an attempt (People v. Thomas, 36 NY2d 514, 517 [1975] []).
Because the foregoing crimes are already attempt like offenses, they are not amenable to being charged as an attempt under Penal Law § 110.00, nor are they amenable to being reduced by amending the accusatory portion of an accusatory instrument to add Penal Law § 110.00 and the word "attempted" prior to the original charge. As the Appellate Term held in People v. Lynn (115 Misc 2d 76, 77 [App Term, 2d Dept 1982]), " '[ T]here cannot be an attempt to commit a crime which is itself a mere attempt to do an act or accomplish a result' " (citations omitted).
Where the People do charge an attempt to commit such an attempt like offense, by the expedient of reduction or otherwise, courts find that such an offense constitutes a "nonexistent crime" (id. at 77), or a "hypothetical charge" (People v. Howlett, 76 Misc 2d 801 [App Term, 1st Dept 1973]). Thus, courts have found that the following charged offenses constitute nonexistent crimes: attempted resisting arrest (People v. Howlett, supra, 76 Misc 2d 801 [1973]); attempted jostling (People v. Lynn, supra, 115 Misc 2d at 77); attempted obstruction of governmental administration (People v. Schmidt, 76 Misc 2d 976, 978 [Crim Ct, Bronx County 1974]); attempted intimidation of a witness in the third degree (People v. Diaz, 146 Misc 2d 260, 264 [Crim Ct, Bronx County 1990]); and attempted tampering with a witness in the third degree (People v. Sajous, 173 Misc 2d 55, 59 [Nassau Dist Ct 1997]).
In People v. Lupinos (176 Misc 2d at 854-855), the court likewise held that the charge of attempted unlawful practice of the profession of massage is a nonexistent crime. (Accord People v. Ching Fong, supra, 186 Misc 2d at 479 [Crim Ct, NY County 2000].) This court agrees with the foregoing holding and expressly finds that attempted unlawful practice under Penal Law § 110.00 and the subsection of Education Law § 6512 (1) charged here is a nonexistent crime.
As charged here, Education Law § 6512 (1) prohibits, by its express language, anyone from "practic[ing] or offer[ing] to practice or hold[ing] himself out as being able to practice" an unlicensed profession, including massage therapy (Education Law § 7802).2
The only remaining question for the court is whether it should dismiss the reduced nonexistent crime and the accusatory instrument (as did the court in People v. Lupinos, supra, 176 Misc 2d at 855) or reinstate the felony complaint.
In People v. Lupinos (supra, 176 Misc 2d at 853), the People, like the People here, originally charged defendant in a felony complaint with the class E felony of unauthorized practice of the profession of massage under Education Law § 6512 (1). Subsequently, the People, again like the People here, reduced the substantive charge to attempted unauthorized practice of the profession of massage, a class A misdemeanor. Upon finding that the reduced charge constituted a nonexistent crime, the court in Lupinos (supra at 853), dismissed the attempt offense, holding that the court "lack[ed] jurisdiction to adjudicate the charge," but did not discuss the propriety of reinstating the felony complaint.3
Here, the court finds that pretrial dismissal of the accusatory instrument is not the appropriate remedy. First, although the court may not have jurisdiction to adjudicate the reduced nonexistent charge of attempted unauthorized practice of the profession of massage, the factual allegations in the accusatory instrument adequately establish all of the elements of the crime of unauthorized practice of the profession of massage under Education Law § 6512 (1) and defendant's commission thereof. Thus, although dismissal of the improperly reduced charge of attempted unauthorized practice of the profession of massage is clearly warranted, there is no reason to dismiss the accusatory instrument, which, in light of the dismissal of the reduced attempt charge, still makes out a class E felony, over which this court has preliminary jurisdiction. (CPL 10.30 [2].)
Significantly, this is not a case where the reduction to an attempt was occasioned in some way by a judicial finding, pursuant to CPL 180.50 (2) (a), that the court lacked "reasonable cause to believe that the defendant committed a felony in addition to the non-felony offense in question." (Id.) On the contrary, it appears that the reduction was made pursuant to CPL 180.50 (2) (b) on the People's application and in the interest of justice, with defendant's consent and/or acquiescence.
Second, inasmuch as the purported reduction to a nonexistent crime was invalid, the court finds that the felony complaint remained pending and is hereby reinstated. This is consistent with the well-settled ...
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