People v. Mabry

• Citation: 101 A.D.2d 961,479 N.Y.S.2d 85
• Parties: The PEOPLE of the State of New York, Respondent, v. Willie Lee MABRY, Appellant.
• Decision Date: 24 May 1984
• Court: New York Supreme Court Appellate Division

Page 85

479 N.Y.S.2d 85

101 A.D.2d 961

The PEOPLE of the State of New York, Respondent, v. Willie Lee MABRY, Appellant.

Supreme Court, Appellate Division,

Third Department.

May 24, 1984.

Frances S. Clemente, Legal Aid Society of Sullivan County, Monticello, for appellant.

Stephen F. Lungen, Dist. Atty., Monticello (Clifford Gordon, Asst. Dist. Atty., Monticello, of counsel), for respondent.

Before KANE, J.P., and MAIN, MIKOLL, YESAWICH and HARVEY, JJ.

MEMORANDUM DECISION.

Appeal from a judgment of the County Court of Sullivan County, rendered April 1, 1983, convicting defendant upon his plea of guilty of the crime of criminal possession of a forged instrument in the second degree.

Defendant challenges his State prosecution for the crimes of forgery in the second degree and criminal possession of a forged instrument in the second degree on the grounds that a Federal prosecution and conviction of defendant for mail fraud and theft of mail matter bars the State indictment pursuant to the double jeopardy provisions of both the United States and New York State Constitutions. We find defendant's challenge lacking in merit and affirm his judgment of conviction.

Defendant was indicted in Sullivan County on 11 counts of forgery in the second degree and 11 counts of criminal possession of a forged instrument in the second degree. Defendant was indicted as well in Federal court on one count of knowingly possessing items stolen from the mail and on 14 counts of using the mails to obtain property by fraud. Defendant pleaded guilty to all counts of the Federal indictment on July 22, 1981 and was sentenced to time served on August 27, 1981. On July 30, 1982, following the denial of his motion to dismiss the indictment, defendant pleaded guilty to Count No. 12 of the State indictment involving forgery of a check made to "Silver Dollar Collectors Club" for $179.95. This check was also the subject of Count No. 12 of the Federal indictment. Nine of the same checks were listed on both the Federal and State indictments. Count Nos. 10, 11, 21 and 22 of the State indictment refer to checks and charges of forgery that do not appear in the Federal indictment. Defendant was sentenced by the State court on April 1, 1983 to a maximum prison term of five years and a minimum term of two and one-half years.

Defendant cites no authority for his contention that Federal constitutional prohibitions against double jeopardy foreclose this State prosecution. Under the "dual sovereignty" doctrine, a subsequent State prosecution for an infringement of State penal law, even if based on the same facts and conduct underlying the prior Federal prosecution, is permitted (see Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684; Matter of Wiley v. Altman, 52 N.Y.2d 410, 438 N.Y.S.2d 490, 420 N.E.2d 371; People v. Abbamonte, 43 N.Y.2d 74, 400 N.Y.S.2d 766, 371 N.E.2d 485). This contention is thus to no avail.

The "dual sovereignty" doctrine has been abrogated in New York State, however (see Matter of Wiley v. Altman, supra, 52 N.Y.2d p. 413, 438 N.Y.S.2d 490, 420 N.E.2d 371). CPL 40.20 (subd. 2) prohibits the second prosecution for offenses based upon the same act or criminal transaction with six exceptions to the general prohibition against further prosecutions. Defendant contends that his prosecution in the instant case is barred by CPL 40.20 (subd. 2), and only two of the exceptions contained therein are relevant to this appeal.

Under the first exception (CPL 40.20, subd. 2, par. ), the subsequent prosecution is not barred when "offenses as defined have substantially different elements and the acts establishing one offense are in the main clearly distinguishable from those establishing the other". To establish the Federal crime of theft of mail matter, there must be proof that defendant stole mail from a mail receptacle (see U.S.Code, tit. 18, § 1708). To prove mail fraud, all that need be shown is that defendant devised or intended to devise a...