People v. Jacobs
| Citation | 492 N.Y.S.2d 859,129 Misc.2d 21 |
| Parties | PEOPLE of the State of New York, v. Stanley JACOBS, Edward Lefkowitz, and Burleigh Industries, Inc., Defendants. |
| Decision Date | 11 July 1985 |
| Court | United States State Supreme Court (New York) |
Lauren S. Barbakoff, Asst. Dist. Atty., Brooklyn, for the people.
Jeffrey A. Rabin, Brooklyn, for defendant Jacobs.
Gluck, Friedman & Rubin by Jeffrey M. Rubin, New York City, for defendants Lefkowitz and Burleigh.
Defendants are charged with Grand Larceny in the Second Degree (P.L. § 155.35) and Conspiracy to Prevent Competitive Bidding on Public Contracts (Gen.Mun.Law § 103-e). They move this Court to reinspect the grand jury minutes and upon reinspection to dismiss the indictment.
The motion to reinspect the grand jury minutes is granted.
This Court has reexamined the grand jury minutes for legal sufficiency and for the purpose of considering whether the grand jury proceeding was defective in light of events subsequent to defendants' indictment. The following is this Court's findings of fact and conclusions of law.
Defendant Edward Lefkowitz is president of co-defendant Burleigh Industries, Inc., a distributor of hardware materials. It is alleged that the defendants, knowingly and with intent to defraud, entered into a bid-rigging scheme with co-defendant Stanley Jacobs, at that time a supervising buyer for the New York City Transit Authority, whereby Burleigh would be awarded a number of contracts to sell hardware items to the Transit Authority even though they were not the lowest qualified bidder for those contracts. Mr. Jacobs allegedly wrongfully recommended award of the contracts to Burleigh. Allegedly, as a result of Burleigh's obtaining these contracts, the New York City Transit Authority paid an amount in excess of fifteen hundred dollars over what they would have paid, had the true lowest qualified bidder received the award for the contracts.
A total of eleven contracts were awarded to Burleigh pursuant to the alleged agreement between Mr. Lefkowitz, acting for Burleigh, and Mr. Jacobs, the first of which was submitted on or about April 15, 1980 and the last of which was submitted on or about August 19, 1981. Certain of these contracts remained in effect until June, 1983, when they were cancelled by the Transit Authority.
The indictment was filed in March, 1984. The defendants were arraigned on this matter on March 15, 1984. The defendants were charged with the crimes of Conspiracy in the Fifth Degree, Grand Larceny in the Second Degree (11 counts), and Conspiracies to Prevent Competitive Bidding on Public Contracts.
The defendants Lefkowitz and Burleigh moved for dismissal of Count One of the indictment (Conspiracy in the Fifth Degree) upon the grounds that the prosecution of that Count was untimely and in violation of the Statute of Limitations (CPL § 30.10(2)(c)).
The District Attorney's Office consented to the dismissal of the conspiracy count and moved for such dismissal against all defendants on September 12, 1984. There was no objection and Count One was thereby dismissed.
In October, 1984, after reviewing the grand jury minutes, this Court denied defendants' motion to dismiss the indictment for insufficiency of the evidence.
Defendants now move this Court for reinspection of the grand jury minutes and for dismissal of the remaining counts of the indictment on the ground that the proceedings before the grand jury were rendered defective by submission of a time-barred offense and evidence of same, which was legally insufficient. They further move for an order dismissing Count 18, entitled Conspiracies to Prevent Competitive Bidding on Public Contracts, on the grounds that it is time-barred and that the controlling statute is confusing to the grand jurors and, further, that it violates due process of law for failure to provide defendants with adequate notice of the charges against them.
Defendants contend that the evidence submitted to the grand jury included proof pertaining to a count that has been dismissed, and that such submission rendered the proceedings defective. During the grand jury proceedings, the People presented evidence of thirty three separate "overt acts" that they claim were committed by defendants in furtherance of a conspiracy. Those "overt acts" related to a charge of conspiracy, which was originally contained in Count One of the indictment, but has since been dismissed by this Court as time-barred. Defendants argue that submission of those "overt acts" irreparably impaired the proceedings.
This Court finds no legal impropriety in submission to the grand jury of evidence pertaining to a charge that has been dismissed subsequent to the grand jury presentation, for the reasons set forth below.
It is axiomatic that evidence is admissible even if it underlies a crime that was left uncharged because of the Statute of Limitations. United States v. Cook, 84 U.S. 168, 17 Wall. 168, 21 L.Ed. 538 (1872); Federal Election Comm'n v. Lance, 617 F.2d 365, 366, 371 (5th Cir.1980); People v. Kohut, 30 N.Y.2d 183, 331 N.Y.S.2d 416, 282 N.E.2d 312 (1972); People v. Schwenk, 92 Misc.2d 331, 400 N.Y.S.2d 291 (1977). The United States Supreme Court has resolved this question in favor of admissibility in United States v. Cook, supra. Holding that the Statute of Limitations poses no bar to the submission of evidence underlying an uncharged crime that is probative of a charged crime, the Court stated:
Accused persons may avail themselves of the statute of limitations but courts of justice ... will not quash an indictment because it appears on its face that it was not found within the period prescribed in the limitation, as such a proceeding would deprive the prosecution of the right to reply or give evidence, as the case may be, that the defendant fled from justice....
84 U.S. at 179, 17 Wall. at 179.
Likewise, the United States Court of Appeals, Second Circuit, held in United States v. Doyle, 348 F.2d 715, 718 (2nd Cir.1965), cert. den., 382 U.S. 843, 86 S.Ct. 89, 15 L.Ed.2d 84 (1965): "indictment states an offense even though the crime alleged appears to be barred by limitation." Again, in Federal Election Comm'n v. Lance, supra, the court explicitly addressed this issue when it stated: "think that Lance has too facilely assumed that the existence of the statute of limitation defense means that no complaint may issue."
Accordingly, Cook and its progeny clearly favor admissibility, and defendants may not use the Statute of Limitations to prevent the grand jury from considering evidence submitted under Count One.
According to the law, evidence of a legally defective conspiracy count may be used to show that the defendants were "acting in concert". In People v. DeRuggiero, 94 Misc.2d 20, 403 N.Y.S.2d 1005 (1978), the court, having been confronted with an issue directly on point with the case at bar, stated:
It is well settled that the "submission of some inadmissible evidence during the course of this proceeding is held to be fatal only when the remaining legal evidence is insufficient to sustain the indictment" (People v. Avant, 33 N.Y.2d 265, 271 ).... Thus, the instant dismissal of the conspiracy crime charged in count two of the indictment does not bar the People from going forward, on a theory of accessorial liability....
94 Misc.2d at 24, 403 N.Y.S.2d 1005. In addition, the court observed that evidence underlying an uncharged conspiracy count is competent "to show that the defendant acted in concert with the others." Id. at 25, 403 N.Y.S.2d 1005.
Therefore, evidence of an uncharged count is admissible where it is probative on the issue of accessorial liability. See People v. Yuk Bui Yee, 94 Misc.2d 628, 405 N.Y.S.2d 386 (1978); People v. Negron, 105 Misc.2d 492, 432 N.Y.S.2d 348 (1980); People v. Colon, 109 Misc.2d 442, 442 N.Y.S.2d 346 (1981); Cotgreave v. Public Admin., 111 Misc.2d 274, 443 N.Y.S.2d 971 (1981). Applying this reasoning to the facts before this Court, it is clear that each of the thirty three "overt acts", if proved, would tend to establish that defendants "acted in concert" to commit the crimes remaining in the indictment, to wit: grand larceny, falsification of business records,
and conspiracy to prevent competitive bidding.
This Court is mindful of the wide latitude accorded grand juries in terms of what evidence they may consider. The statutory language of section 190.05 of the New York Criminal Procedure Law (CPL) and case law interpreting that statute both support the People's argument in favor of admissibility. The CPL states that the primary function of the grand jury is to "hear and examine evidence ... concerning misconduct, nonfeasance, and neglect in public office, whether criminal or otherwise." N.Y.Crim.Proc.Law § 190.05 (McKinney's 1982). Case law interpreting this provision of the CPL supports the wide latitude given to the grand jury.
As early as the turn of the century, the courts of this state have declared that a grand jury "may investigate ... information of any kind derived from any source deemed reliable." People ex rel. Livingston v. Wyatt, 186 N.Y. 383, 389, 79 N.E. 330 (1906); see also, People v. Ackrish, 92 Misc.2d 431, 433, 400 N.Y.S.2d 684 (1977); People v. Doe, 84 A.D.2d 182, 196, 445 N.Y.S.2d 768 (1981); Mtr. of Grand Jury Subpoenas, 58 A.D.2d 1, 5, 395 N.Y.S.2d 645 (1977); People v. Lohman, 49 A.D.2d 75, 77, 371 N.Y.S.2d 170 (1975); People v. Davis, 27 A.D.2d 299, 304 at n. 5, 278 N.Y.S.2d 750 (1967); People ex rel. Van Der Beek v. McCloskey, 18 A.D.2d 205, 208, 238 N.Y.S.2d 676 (1963).
The defendants herein have offered no valid legal challenge to the reliability of the evidence submitted and, therefore, have failed to show this Court any basis for disallowing its presentation...
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