People v. Zimmerman

• Decision Date: 12 December 2007
• Docket Number: 131.
• Citation: 851 N.Y.S.2d 97,881 N.E.2d 193,9 N.Y.3d 421
• Parties: The PEOPLE of the State of New York, Appellant, v. James ZIMMERMAN, Respondent.
• Court: New York Court of Appeals Court of Appeals

881 N.E.2d 193

9 N.Y.3d 421

851 N.Y.S.2d 97

The PEOPLE of the State of New York, Appellant, v. James ZIMMERMAN, Respondent.

131.

Court of Appeals of New York.

December 12, 2007.

Andrew M. Cuomo, Attorney General, New York City (Roseann B. MacKechnie and Barbara D. Underwood of counsel), for appellant.

Steven R. Kartagener, New York City, and Thomas Fitzpatrick for respondent.

OPINION OF THE COURT

CIPARICK, J.

This appeal asks us to determine whether defendant is subject to "particular effect" jurisdiction, or venue, as set forth in CPL article 20, in New York County. We conclude that he is not.

In 2002, the New York Attorney General's office began an antitrust investigation into suspected unlawful conduct by Federated Department Stores and May Department Stores. The Attorney General sought to determine whether Federated and May conspired with Waterford Wedgwood USA and Lenox, Inc.—manufacturers of fine crystal and china—to restrain the sale of such products by Bed, Bath and Beyond, a competitor of Federated and May. During the investigation, the Attorney General subpoenaed documents from the companies and testimony from their current and former employees.

Prior to Federated's compliance with the subpoena duces tecum, the Attorney General and Federated entered into a confidentiality agreement, which provided that any dispute regarding the disclosure or classification of documents would be brought in New York County Supreme Court. The agreement was sent to and signed by Federated's attorney in Washington, D.C.

Defendant, James Zimmerman, who was the chairman and chief executive officer of Federated from 1998 until his retirement in February 2004, was among the witnesses examined under oath as a part of the investigation. The Attorney General sought to examine defendant at the Antitrust Bureau's New York County office, but as an accommodation to him, the Attorney General agreed to conduct the examination at Federated's corporate headquarters in Cincinnati, Ohio.

The examination was held on April 9, 2004. At that time, an oath was administered by the court reporter, who was also an Ohio notary public. Defendant was represented at the examination by his Washington, D.C. attorney, who signed the confidentiality agreement. During the examination, the Attorney General extensively questioned defendant regarding an alleged conversation he had with Waterford's chairman of the board on June 11, 2001.

A couple of months later, the Attorney General's office notified Federated, May, Waterford and Lenox that it was prepared to commence a lawsuit against them, alleging violations of the Donnelly Act and Executive Law § 63(12). But before the action was commenced, the Attorney General resumed settlement negotiations that resulted in the four companies each entering into settlement agreements with the Attorney General.

Meanwhile, following defendant's examination, the Attorney General commenced a grand jury investigation in New York County into defendant's alleged perjury during his examination. As part of the charge to the grand jury, the Attorney General read the statutory provisions that govern "particular effect" jurisdiction and venue as set forth in CPL 20.20(2)(b)¹ (state jurisdiction), 20.10(4)² (definition of "particular effect") and 20.40(2)(c)³ (county jurisdiction). In January 2005, the grand jury indicted defendant for perjury in the first degree (Penal Law § 210.15), charging him with six instances of testifying falsely. The indictment also alleged "that the crime of Perjury in the First Degree was designed to prevent a particular effect in the County and State of New York and . . . that the defendant's conduct . . . was performed with intent that it would, and knowledge that it would be likely to, have such an effect herein."

Defendant, in an omnibus motion, moved to dismiss the indictment, arguing that "particular effect" venue, pursuant to CPL 20.40(2)(c), did not lie in New York County. Defendant conceded that New York State had jurisdiction pursuant to CPL 20.20(2)(b). Citing Matter of Taub v. Altman, 3 N.Y.3d 30, 781 N.Y.S.2d 492, 814 N.E.2d 799 (2004), however, defendant argued that his alleged perjury had no perceptible impact on the governmental processes of that county and that there was no evidence that he actually intended or was aware that his alleged perjury would have a deleterious effect on the governmental or judicial processes of New York County. The People opposed the motion and argued that the evidence presented to the grand jury established that defendant acted with either the intent or knowledge that his actions would affect the antitrust investigation being conducted in New York County.

Supreme Court granted defendant's motion, dismissed the indictment and held that defendant's acts had no "particular effect" upon New York County. The Appellate Division affirmed and noted that "[c]riminal conduct constituting an offense has a `particular effect' upon a county when it `produces consequences which . . . have a materially harmful impact upon the governmental processes or community welfare of [the] particular [county], or result in the defrauding of persons in such [county]'" (32 A.D.3d 345, 346, 820 N.Y.S.2d 266 [2006], quoting CPL 20.10[4]). The Appellate Division found that

"the evidence did not establish that, at the time defendant made his allegedly false statement, he was, aware of the facts relied upon by appellant for this claim. Instead, all that can be reasonably inferred from the facts is that at the time he made his statements in Ohio, defendant knew his conduct would have a deleterious effect on the governmental or judicial processes of the State of New York, but not on any particular county" (id., citing Taub).

A Judge of this Court granted leave to appeal, and we now affirm.

In Taub, we opined that

"in order for prosecutorial jurisdiction to lie in New York County, it is that county . . . that must suffer a particular effect as a result of defendants' alleged conduct. The statutory requirement that the conduct have a materially harmful impact may thus be satisfied only by a `concrete and identifiable injury' to either the county's governmental processes (that is, the executive, legislative or judicial branch of government) or the welfare of the county's community. Moreover, to be materially harmful, the impact must be more than minor or incidental, and the conduct must harm `the well being of the community as a whole,' not merely a particular individual" (Taub, 3 N.Y.3d at 33-34, 781 N.Y.S.2d 492, 814 N.E.2d 799 [citations omitted]).

Further, "because the jurisdiction of the county seeking to prosecute must be established before the grand jury, the type of injury or offense contemplated by the particular effect statute must `be perceptible and of the character and type which can be demonstrated by proof before a[g]rand [j]ury'" (Taub at 34, 781 N.Y.S.2d 492, 814 N.E.2d 799, quoting Matter of Steingut v. Gold, 42 N.Y.2d 311, 317, 397 N.Y.S.2d 765, 366 N.E.2d 854 [1977]).

The question presented here, as in Taub, is whether the evidence before the grand jury established a concrete and identifiable injury suffered specifically by New York County. The People rely upon instances of defendant's conduct that purportedly affected New York County's judicial processes. The People also contend that certain statements evince a concrete and identifiable injury suffered by New York County and that at the time defendant made the alleged perjurious statements in Ohio, he knew that they were likely to have a materially harmful impact on judicial processes in New York County. That is, he must have known that the Attorney General's antitrust investigation might lead to civil litigation or criminal charges, proceedings that would necessarily be brought in New York County.

Defendant, on the other hand, argues that a New York County grand jury was without authority to indict him for perjury under the particular effect theory of geographical jurisdiction. Defendant contends that the proof that was presented to the grand jury failed to establish that his alleged conduct had or was likely to have a materially harmful impact on New York County or that he had the intent or knowledge that it would have such particular effect on the County.

Defendant's argument should prevail because there was no evidence before the grand jury that could reasonably lead to the conclusion that when defendant allegedly testified falsely in Ohio, he did so with the intent or knowledge that his actions would have a material and harmful effect on New York County's judicial processes. The subpoena for his testimony had not issued from a New York County grand jury, but rather from the Attorney General's office itself, pursuant to its subpoena powers.

At common law and under the State Constitution, a defendant has the right to be tried in the county where the crime was committed unless the Legislature has provided otherwise (see People v. Moore, 46 N.Y.2d 1, 6, 412 N.Y.S.2d 795, 385 N.E.2d 535 [1978], citing N.Y. Const., art. I, § 2 and People v. Goldswer, 39 N.Y.2d 656, 659-661, 385 N.Y.S.2d 274, 350 N.E.2d 604 [1976]),⁴ "So stringently was that rule applied, at common law, that where the alleged act was performed in part in one county and in part in another or others, venue was in neither county, and prosecution could not be had at all" (Matter of Murtagh v. Leibowitz, 303 N.Y. 311, 316, 101 N.E.2d 753 [1951]).⁵ The Legislature sought to correct that situation by enacting venue statutes that permit the prosecution of certain actions in other counties under certain very specific conditions (see id.; see also People v. Nicoll, 3 A.D.2d 64, 70-71, 158 N.Y.S2d 279 [4th Dept 1956] [reciting early history of multiple county jurisdiction]). Thus, "[a]bsent [a] statutory exception, . . . the territorial unit for criminal prosecutions is [a] county" (People v. Fee, 47 N.Y.2d 70, 75, 416 N.Y.S.2d 778, 390 N.E.2d...