People v. Gold Key Club, Inc.

• Decision Date: 05 June 1956
• Citation: 152 N.Y.S.2d 669,2 Misc.2d 380
• Parties: The PEOPLE of the State of New York v. GOLD KEY CLUB, Inc., John R. Durante, Joseph Pisani and Joseph Hoffman, Defendants, impleaded with Vincent Mauro.
• Court: New York Court of General Sessions

Page 669

152 N.Y.S.2d 669

2 Misc.2d 380

The PEOPLE of the State of New York v. GOLD KEY CLUB, Inc., John R. Durante, Joseph Pisani and Joseph Hoffman, Defendants, impleaded with Vincent Mauro.

Court of General Sessions of New York, New York County.

June 5, 1956.

Albert Felix, New York City, for defendants.

Joseph Aronstein, New York City, for impleaded Vincent Mauro.

Frank S. Hogan, by Eugene Leiman, Asst. Dist. Atty., New York City, of counsel, in opposition thereto.

SCHWEITZER, Judge.

On March 13, 1956, the Grand Jury of New York County directed the District Attorney to file an information in the Court of Special Sessions charging the defendants with having committed the crimes of selling alcoholic beverages without a license and storing alcoholic beverages without a license, in violation of Sections 100(1) and 96(1) of the Alcoholic Beverage Control Law, from on or about September 1, 1951 and continuously to on or about February 10, 1956.

On the same day, an order was made by a Judge of this Court approving the direction of the Grand Jury, and pursuant thereto, the District Attorney filed an information in the Court of Special Sessions of the City of New York, County of New York, against these defendants containing four counts: The first count charges the defendants with the crime of selling alcoholic beverages without a license 'from on or about September 1, 1951 and continuously to on or about February 10, 1956'; the second count charges the defendants with the crime of storing alcoholic beverages without a license 'from on or about September 1, 1951 and continuously to on or about February 10, 1956'; the third count charges the defendants with selling alcoholic beverages without a license 'on or about February 10, 1956'; the fourth count charges them with storing alcoholic beverages without a license 'on or about February 10, 1956.'

All of the defendants have moved to vacate and set aside the aforesaid direction of the Grand Jury and the order approving the same, on the ground that 'such direction is vague and indefinite and does not set forth the date when the crimes were alleged to have been committed.' Numerous other grounds have been advanced on the oral argument and briefs submitted on behalf of the defendants. The Court has carefully considered all of the grounds urged by the defendants and is of the opinion that none of them justifies the relief sought.

The defendants' basic argument is that the first and second counts are void inasmuch as these counts fail to allege the dates on which the specific crimes were committed and that an allegation charging the continuous commission of the crime over a period of several years is insufficient. The argument is predicated on the contention that each separate illegal sale constitutes a separate crime and that it is incumbent upon the prosecution to charge the defendants separately and specifically with respect to each such specific sale.

No doubt the Grand Jury and the District Attorney could have charged the defendants with a separate crime for each and every illicit sale of which there was sufficient proof for the period covered by the information. While the defendants have been benefited rather than prejudiced by being charged with a single continuous commission of the crimes involved rather than a multiplicity of separate acts, the validity of the first two counts of the information depends upon the determination whether the crimes charged can, by their nature, be continuing crimes.

There is ample authority for charging a defendant with a single continuous crime for a course of conduct over a period of time which comprises the commission of any criminal acts of the same nature motivated by a single common illegal intent or forming part of a general plan or scheme. People v. Farson, 244 N.Y. 413, 155 N.E. 724; People v. Cox, 286 N.Y. 137, 36 N.E.2d 84, 136 A.L.R. 943; Sturgis v. Spofford, 45 N.Y. 446; People v. Parkinson, Gen.Sess., 43 N.Y.S.2d 690; People v. Fay, 184 Misc. 684, 54 N.Y.S.2d 541.

The issues raised by the defendants in this case were similarly involved in People v. Farson, supra. The defendant there was charged with the violation of Section 953 of the Penal Law dealing with manipulation of prices of securities. The indictment charged him with the commission of the crime from April 29, 1919, to July 17, 1919. The defendant demurred to the indictment on the ground, amongst others, that the indictment which was a single count charged more than one crime. The question there raised is the identical question with that raised by the defendants herein although in somewhat different form. The Court upheld the indictment pointing out that the crime might be committed by a single transaction or by a continuous series of acts. The defendant urged there (and the argument is implicit in this case) that the indictment was invalid for the reason that it did not sufficiently identify the specific acts during the period covered by the indictment so as to bar a further prosecution for such acts following a conviction or acquittal of the single continuous crime charged in the indictment. The Court there rejected the argument pointing out at page 419 of 244...