People v. Sudore, 2009 NY Slip Op 51333(U) (N.Y. Dist. Ct. 6/23/2009)
| Decision Date | 23 June 2009 |
| Docket Number | 0934-2008 |
| Citation | 2009 NY Slip Op 51333 |
| Parties | THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff, v. JAMES SUDORE, Defendant. |
| Court | New York District Court |
Matthew Dunham, Esq., Assistant District Attorney, for the People.
Mary Wilkins, Esq., Assistant Public Defender, for the Defendant.
The defendant is charged by indictment with three counts of grand larceny in the third degree, one count of grand larceny in the fourth degree, and two counts of petit larceny. The charges detail numerous incidents between June 1, 2005 and April 17, 2008 wherein it is alleged that the defendant defrauded various homeowners by failing to commence or complete home improvement contracts, resulting in losses to the victims of tens of thousands of dollars.
The defendant has moved this Court to inspect the grand jury minutes and to dismiss the indictment claiming insufficient evidence was presented to the grand jury to sustain the indictment, as well as alleging defective grand jury proceedings in the presentment of the case by the District Attorney. The Court has issued a prior ruling denying the defendant's motion (Decision and Order of this Court, February 13, 2009).
Also, the defendant maintains that his prosecution is barred on the grounds of double jeopardy. This decision addresses that aspect of the defendant's motion.
The defendant claims that the indictment is "double jeopardy" dismissible based upon an August 5, 2008 adjudication in New York State Supreme Court (Galloway, J.) against this defendant for civil and criminal contempt under §§ 750 and 753 of the NY Judiciary Law. That adjudication involved a finding by the Court that the defendant violated a 2004 consent decree entered with the New York State Attorney General's Office. In the 2004 consent decree the defendant agreed, among other things, to make restitution for past victims of his fraud; post a $100,000 performance bond; make quarterly filings with the Attorney General identifying all new home improvement contracts into which he entered; and refrain from any future fraudulent business practices.
However, the Attorney General, citing numerous violations of that consent decree, petitioned the Court in 2008 for a finding of civil contempt against the defendant. That contempt action involved proof that the defendant failed to post the performance bond; failed to make restitution to his past victims; and failed to file quarterly statements with the Attorney General. In addition, the Attorney General alleged that the defendant had committed new acts of fraud in that the defendant had victimized more homeowners. It so happens the victims detailed in the instant indictment were the same persons the Attorney General claims the defendant newly defrauded subsequent to the 2004 consent decree.1
In June, July and August 2008 Supreme Court conducted an evidentiary hearing into the contempt petition. The defendant was found by the Court to be in contempt of the consent decree based on, among other things, his failure to repay (through the Attorney General's Office) approximately $68,000.00 restitution. The Court sanctioned the defendant by imposing a fine and ordering the aforementioned restitution, including restitution for the new victims, and sentencing the defendant to incarceration "for a period of six months [for the civil contempt] and thirty days [for the criminal contempt]."
The issue to be addressed by this Court is whether the indictment for penal law larceny crimes is subject to dismissal on double jeopardy grounds due to the fact that the prior contempt judgment entered in Supreme Court was based at least partly upon fraud committed against the same victims and incidents as contained in the criminal indictment.
Criminal Procedure Law §210.20(1)(e) provides that "[a]fter arraignment upon an indictment, the superior court may, upon motion of the defendant, dismiss such indictment . . . upon the ground that . . .[t]he prosecution is barred by reason of a previous prosecution, pursuant to section 40.20."
Criminal Procedure Law §40.20 states that "[a] person may not be twice prosecuted for the same offense"2 and provides further, in relevant part, that
A person may not be separately prosecuted for two offenses based upon the same act or criminal transaction unless:
(a) The offenses as defined have substantially different elements and the acts establishing one offense are in the main clearly distinguishable from those establishing the other; or
(b) Each of the offenses as defined contains an element which is not an element of the other, and the statutory provisions defining such offenses are designed to prevent very different kinds of harm or evil.3
Unlike the classic "double jeopardy" situation, this defendant was not previously tried and convicted of a crime under a criminal indictment. Rather, an order and judgment was entered against him by a Supreme Court Justice following a trial on a contempt petition. Some of the testimony and evidence offered at the civil trial constitutes the underlying evidence for the criminal indictment before this Court. Of further distinction is the fact that the instant indictment does not charge "criminal contempt" under the penal law4, but rather charges substantive penal law larceny offenses.
At first blush it would appear that the defendant's reliance upon People v. Wood, 95 NY2d 509 (2000) is dispositive of the double jeopardy issue in this case. In Wood, orders of protection were placed against the defendant in both Family Court and Rochester City Court. The victim filed a contempt petition in Family Court after she received harassing and threatening telephone calls from the defendant. Those calls clearly violated the terms contained in both the Family Court and City Court orders of protection. Following a hearing, the Family Court found the defendant in contempt of the Family Court order of protection, and sentenced him to six months incarceration.
Following the Family Court proceedings, the District Attorney obtained an indictment for criminal contempt and aggravated harassment based upon a violation of the City Court order of protection. The trial court denied the defendant's motion to dismiss the criminal indictment on double jeopardy grounds. However, that decision was reversed by the Appellate Division5 and affirmed by the Court of Appeals which held that "the defendant's prosecution for criminal contempt in the first degree under Penal Law § 215.51(c) is barred because he was previously prosecuted for contempt under the Family Court Act Article 8." Wood, 95 NY2d at 515.
At the center of Wood is the fact that the subsequent indictment charged the defendant with Penal Law contempt, under §215, and that the District Attorney argued that double jeopardy did not apply because "the Family Court contempt proceeding was based upon the violation of a different order of protection than that which served as a basis for the criminal contempt charge." Wood, supra, at 512.The Court of Appeals, however, found that argument to be unavailing, holding that the orders of protection "had one and the same purpose" and that the prosecution could not "circumvent the double jeopardy bar simply by seeking to prosecute the criminal action for violation of another court order based on the same conduct." Wood, supra, at 515.
In the instant case, however, the defendant seeks a double jeopardy dismissal of a larceny indictment following his adjudication as a contemnor under Judiciary Law §§ 750 and 753. Our Courts have traditionally recognized the inherent distinction of the principle purposes between Penal Law violations and contempt proceedings under the Judiciary Law. A Penal Law violation "comprehends an offense against the People of the State of New York and that Judiciary Law, §750, embodies the inherent power of the court to punish summarily for an offense against the dignity of the court." Marangelo v. Criminal Court of City of New York, 49 Misc 2d 414 (NY Sup. Ct., Feb. 16, 1966). "The purpose of a criminal contempt proceeding for willful disobedience of its lawful mandate is to vindicate the authority of the court and its orders." Mount Sinai Hospital, Inc., et al v. Davis, 8 AD2d 361, 363 (First Dept., 1959).
Supreme Court found the defendant in violation of two sections of the Judiciary Law: §§ 750 and 753.
Judiciary Law § 750, titled "Power of courts to punish for criminal contempt," provides
A. A court of record has power to punish for a criminal contempt, a person guilty of any of the following acts: . . .
3. Wilful disobedience to its lawful mandate.
Judiciary Law § 753, titled "Power of courts to punish for civil contempt," provides
A. A court of record has power to punish, by fine and imprisonment, or either, a neglect or violation of duty, or other misconduct, by which a right or remedy of a party to a civil action or special proceeding, pending in the court may be defeated, impaired, impeded, or prejudiced, in any of the following cases: . . .
2. A party to the action or special proceeding . . . for any deceit or abuse of a mandate or proceeding of the court.
In applying the traditional "same elements" test set forth in Blockburger v. United States6 to this case, this Court finds that the larceny statutes and the Judiciary Law contempt provisions clearly proceed on different elements.7 While larceny involves the theft of property from its rightful owner, and valued at a certain amount, the Judiciary Law contempt statutes require a willful violation of the lawful mandate of a Court. Thus, a criminal defendant can commit larceny and not be in violation of prior lawful mandate of a Court, while a civil party can violate the lawful mandate of the Court but not necessarily violate a Penal Law larceny statute.
Without question, had the District Attorney in this case indicted the defendant on Penal Law criminal contempt charges (§§ 215.50 and 215....
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