People v. Vesprey

• Decision Date: 17 November 1992
• Citation: 590 N.Y.S.2d 91,183 A.D.2d 212
• Parties: The PEOPLE of the State of New York Appellant, v. Norbert Hollis VESPREY, a/k/a "Chunky", and Mark Fox, a/k/a "Jamaica Mike", Defendants-Respondents.
• Court: New York Supreme Court — Appellate Division

Page 91

590 N.Y.S.2d 91

183 A.D.2d 212

The PEOPLE of the State of New York Appellant, v. Norbert Hollis VESPREY, a/k/a "Chunky", and Mark Fox, a/k/a "Jamaica Mike", Defendants-Respondents.

Supreme Court, Appellate Division First Department.

Nov. 17, 1992.

Hector Gonzalez, New York City, of counsel (Donald J. Siewert, with him, on the brief, Robert M. Morgenthau, attorney), for appellant.

Polly N. Passonneau, New York City, for defendant-respondent Norbert Hollis Vesprey.

Robert M. Beecher, New York City, for defendant-respondent Mark Fox.

Before CARRO, J.P., and WALLACH, ROSS and ASCH, JJ.

ASCH, Justice.

On September 13, 1989, defendants and one Kevin Bruce used a stolen credit card to purchase merchandise at an A & S Department Store in Manhattan. Thereafter, defendants were indicted by a New York County grand jury, charged with numerous counts of grand larceny, criminal possession of stolen property, forgery and criminal possession of a forged instrument, all stemming from the department store transaction. In December 1989, during an unrelated federal postal investigation in Brooklyn, defendants bought stolen credit cards from one Bernard Hayes and were indicted by a federal grand jury in the Eastern District on one count of conspiracy to use unauthorized access devices in violation of 18 U.S.C. § 1029(b)(2). This indictment charged that defendants, within the Eastern District of New York, conspired in the purchase of stolen credit cards from December 27, 1989, to January 9, 1990.

Defendants moved to dismiss the New York County indictment on double jeopardy grounds contending that the September offenses in Manhattan and the December conspiracy in Brooklyn constituted one criminal transaction barring separate prosecution for the state offenses under CPL 40.20(2). Initially, the Supreme Court denied the motion to dismiss, finding on the authority of Matter of Mason v. Rothwax, 152 A.D.2d 272, 548 N.Y.S.2d 926, lv. denied, 75 N.Y.2d 705, 552 N.Y.S.2d 928, 552 N.E.2d 176, that the different indictments arose out of different transactions. Thereafter, the People made an application pursuant to People v. Ventimiglia, 52 N.Y.2d 350, 438 N.Y.S.2d 261, 420 N.E.2d 59 to admit Brooklyn conversations of defendants which attested to their acting in concert with respect to the federal charges as a means of demonstrating that they were partners with respect to the New York County charge. Upon the defendants' renewed motion to dismiss on double jeopardy grounds, the court granted the motion upon the authority of People v. Helmsley, 170 A.D.2d 209, 566 N.Y.S.2d 223. Subsequently, the court denied the People's motion for reconsideration and reaffirmed its dismissal of the indictment.

We note initially that the various charges herein do not violate the double jeopardy provision of the Federal and State Constitutions (U.S. Const., 5th Amend. N.Y. Const., art. I, § 6). However, New York statute law is more restrictive of allowable prosecutions than the applicable constitutional safeguards against double jeopardy. Upon this appeal, the defendant-respondents assert that since the overt acts charged in the New York County indictment were part of the same criminal venture which was the subject matter of the prosecution in the federal district court in the Eastern District, and the crimes charged in the instant indictment have substantially similar elements as those charged in the federal indictment, that this prosecution is barred by the provisions of the New York Statute--CPL 40.20.

CPL 40.20 reads in pertinent part, as follows:

1. A person may not be twice prosecuted for the same offense.

2. 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; or * * *

(e) Each offense involves death, injury, loss or other consequence to a different victim; * * *

CPL 40.10 defines the terms "offense" and "criminal transaction" as used in 40.20, as follows:

1. "Offense." An "offense" is committed whenever any conduct is performed which violates a statutory provision defining an offense; and when the same conduct or criminal transaction violates two or more such statutory provisions each such violation constitutes a separate and distinct offense. The same conduct or criminal transaction also establishes separate and distinct offenses when, though violating only one statutory provision, it results in death, injury, loss or other consequences to two or more victims, and such result is an element of the offense as defined. In such case, as many offenses are committed as there are victims.

2. "Criminal transaction" means conduct which establishes at least one offense, and which is comprised of two or more or a group of acts either (a) so closely related and connected in point of time and circumstance of commission as to constitute a single criminal incident, or (b) so closely related in criminal purpose or objective as to constitute elements or integral parts of a single criminal venture.

It is clear from an analysis of the above sections that there was no violation of the statutory bar to multiple prosecutions for the same offense. Thus, while Criminal Term found that the state and federal indictments were part of the same criminal transaction, the plain language of the statute combined with the facts of this case compel the opposite conclusion.

A "criminal transaction" must be comprised of two or more acts either "so closely related and connected in point of time and circumstance of commission as to constitute a single criminal incident" or "so closely related in criminal purpose or objective as to constitute elements or integral parts of a single criminal venture" (CPL 40.10[2][a], [b]. In this case, the crimes charged in the New York County indictment occurred on one day in September of 1989. The federal indictment is concerned with acts of the defendants occurring some three months later, in late December 1989 and January 1990, when they began to purchase stolen credit cards in Brooklyn from Hayes. The acts, therefore, are not "closely related and connected in point of time". In addition, the different acts were also not so closely related and connected in "circumstance of commission". The gravamen of the federal charges was the conspiracy to obtain stolen credit cards while the essence of the state charges is the fraudulent use of other stolen credit cards. The venue of the conspiracy alleged in the federal indictment was Brooklyn where Hayes stole credit cards...