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Supreme Court, Appellate Division, Second Department, New York.

IN RE: Carmine POLITO, et al., petitioners, v. John P. WALSH, etc., et al., respondents.

Decided: September 19, 2006

ANITA R. FLORIO, J.P., PETER B. SKELOS, STEVEN W. FISHER, and ROBERT J. LUNN, JJ. Claffey & Mastrogiacomo, New York, N.Y. (Kevin Claffey of counsel), for petitioner Carmine Polito, and Stillman & Friedman, P.C., New York, N.Y. (Paul Shechtman and Nathaniel Z. Marmur of counsel), for petitioner Mario Fortunato (one petition filed). Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Christopher P. Blank and John Holmes of counsel), respondent pro se.

Proceeding pursuant to CPLR article 78 in the nature of prohibition to bar the respondents from proceeding with the trial in the criminal action entitled People v. Polito and Fortunato, pending in the Supreme Court, Kings County, under Indictment No. 3713/05, charging the petitioners with murder in the second degree, on the ground that the trial would violate the prohibition against double jeopardy.

ADJUDGED that the petition is denied and the proceeding is dismissed, without costs or disbursements.

The petitioners, Carmine Polito and Mario Fortunato, were indicted by Federal authorities for, inter alia, allegedly committing a violent crime in aid of racketeering activity (hereinafter VCAR) under 18 U.S.C. § 1959.   Count III of the indictment accused the petitioners of the knowing and intentional murder of Sabatino Lombardi on November 30, 1994, in aid of racketeering activity, “in violation of New York Penal Law Sections 125.25 and 20.00.”   They were tried by a jury in the United States District Court for the Eastern District of New York, and on January 28, 2003, convicted on all counts.   The United States Court of Appeals for the Second Circuit overturned, inter alia, the VCAR conviction (see United States v. Bruno, 383 F.3d 65), the sole basis for reversal being that the evidence was legally insufficient to establish that either petitioner committed the shooting “for the purpose of ․ maintaining or increasing position in an enterprise engaged in racketeering activity” (18 U.S.C. § 1959[a];  see United States v. Bruno, supra at 81-86).   In other words, the VCAR conviction was overturned because of the failure to establish one of the elements of the federal offense.

Thereafter, on June 13, 2005, the petitioners were indicted in Kings County for murder in the second degree.   The accusation was the same in fact as the accusation for the murder element of the federal indictment, i.e., that the petitioners intentionally caused the death of Sabatino Lombardi by shooting him with a handgun on November 30, 1994.   The petitioners now contend that the state prosecution should be prohibited on the ground of double jeopardy, pursuant to CPL 40.20(1), since murder in the second degree is the “same offense” as the federal VCAR offense.   We disagree.

As a preliminary matter, the petitioners all but concede that CPL 40.20(2) does not bar the state prosecution since the exception in CPL 40.20(2)(f) is clearly applicable.

 Beginning our analysis with the double jeopardy statute, CPL 40.20(1) provides that “a person may not be twice prosecuted for the same offense.”   It embodies the double jeopardy doctrine in its truest and simplest form (see Matter of Klein v. Murtagh, 44 A.D.2d 465, 355 N.Y.S.2d 622, affd. 34 N.Y.2d 988, 360 N.Y.S.2d 416, 318 N.E.2d 606).  CPL 40.20(2), by contrast, was adopted by the Legislature to broaden the doctrine in New York to provide comprehensive protection against separate prosecutions for “two offenses based upon the same act or criminal transaction” (CPL 40.20[2];  see People v. Latham, 83 N.Y.2d 233, 237, 609 N.Y.S.2d 141, 631 N.E.2d 83).   Thus, in light of the broad protection prescribed in CPL 40.20(2), to construe the phrase “same offense” too broadly in subsection 1 would render this language meaningless, as it would provide coextensive protection with subsection 2. To this end, the Court of Appeals has concluded that to constitute the “same offense,” the offenses must have “essentially the same statutory elements or one must be a lesser included offense of the other” (Matter of Corbin v. Hillery, 74 N.Y.2d 279, 289, 545 N.Y.S.2d 71, 543 N.E.2d 714, affd. sub nom. Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548;  see Matter of Booth v. Clary, 83 N.Y.2d 675, 679, 613 N.Y.S.2d 110, 635 N.E.2d 279).   The term “same” in the statute means the same in both law and fact (see Matter of Klein v. Murtagh, 44 A.D.2d 465, 467, 355 N.Y.S.2d 622, affd. 34 N.Y.2d 988, 360 N.Y.S.2d 416, 318 N.E.2d 606).

Applying this legal principle and analysis to the case at bar leads to a comparison of the VCAR statute and the murder in the second degree statute which is telling.   The VCAR statute, 18 U.S.C. § 1959(a)(1), provides that:

“Whoever, as consideration for the receipt of, or as consideration for a promise or agreement to pay, anything of pecuniary value from an enterprise engaged in racketeering activity, or for the purpose of gaining entrance to or maintaining or increasing position in an enterprise engaged in racketeering activity, murders, kidnaps, maims, assaults with a dangerous weapon, commits assault resulting in serious bodily injury upon, or threatens to commit a crime of violence against any individual in violation of the laws of any State or the United States, or attempts or conspires so to do, shall be punished for murder, by death or life imprisonment, or a fine under this title, or both.”

The New York murder in the second degree statute, Penal Law § 125.25(1), provides that:

“A person is guilty of murder in the second degree when ․ [w]ith intent to cause the death of another person, he causes the death of such person or of a third person.”

 It is uncontroverted that the facts of the VCAR offense and the murder offense are the same, i.e., both are based upon the shooting of Lombardi on November 30, 1994.   However, the offenses are not the same in law since the federal statute includes essential elements not present in the state statute (see Matter of Klein v. Murtagh, supra ).   To establish a VCAR violation, it must be demonstrated, inter alia, that an enterprise exists, and that the violent crime was committed to maintain or increase the defendant's position in the enterprise (see 18 U.S.C. § 1959).   These are not elements of murder in the second degree.

Moreover, although murder in the second degree was the underlying basis for the alleged VCAR violation, the murder offense cannot be deemed a lesser-included offense of the VCAR offense.  CPL 1.20(37) provides that “when it is impossible to commit a particular crime without concomitantly committing, by the same conduct, another offense of lesser grade or degree, the latter is, with respect to the former, a ‘lesser-included offense.’ ”   To establish that a crime is a lesser-included offense, it must be, inter alia, theoretically impossible to commit the greater crime without at the same time committing the lesser (see People v. Glover, 57 N.Y.2d 61, 63-64, 453 N.Y.S.2d 660, 439 N.E.2d 376).

Murder is not the only crime which may serve as a basis for a VCAR violation since the statute lists other offenses, such as kidnapping, assault, or maiming, which may constitute the underlying criminal element of the statute (see 18 U.S.C. § 1959).   Indeed, the United States Supreme Court has noted that where the greater offense does not always entail proof of the alleged lesser offense, then the two offenses are not the “same” under the double jeopardy standard delineated in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (see Illinois v. Vitale, 447 U.S. 410, 419, 100 S.Ct. 2260, 65 L.Ed.2d 228;  cf. United States v. Boylan, 620 F.2d 359, 361 [no indication that predicate acts of a RICO offense were intended to be lesser-included offenses barring state prosecution for those acts on the ground of double jeopardy] ).   Therefore, murder is not a lesser-included offense, as defined in this State, of VCAR (see People v. Prescott, 66 N.Y.2d 216, 221, 495 N.Y.S.2d 955, 486 N.E.2d 813, cert. denied 475 U.S. 1150, 106 S.Ct. 1804, 90 L.Ed.2d 349, citing Illinois v. Vitale, supra ).

We further reject the petitioners' contention that murder is a “species” of a lesser-included offense of VCAR. To adopt this contention would place too broad a scope on the protection of CPL 40.20(1), thereby rendering its language coterminous with that of CPL 40.20(2), in derogation of statutory construction.   We also note that the petitioners' reliance on People v. Bokun, 145 Misc.2d 860, 548 N.Y.S.2d 604, is misplaced.   The Bokun court held that CPL 40.20(1) barred prosecution of the defendant for murder where he was tried and convicted in federal court for the same murder as a predicate act of racketeering under the Federal Racketeer Influenced and Corrupt Organizations Act (18 U.S.C. § 1961-1968) (hereinafter RICO).   However, the Appellate Division, First Department, in Matter of Cooper v. Sheindlin, 154 A.D.2d 288, 546 N.Y.S.2d 589, decided less than three weeks before Bokun, concluded that RICO charges for which murders were the predicate offenses did not bar, on double jeopardy grounds under CPL 40.20(1), a state prosecution for those same murders.

Accordingly, there is no double jeopardy bar to prosecuting the petitioners for the act that served as the basis for the alleged VCAR violation, since the offenses do not constitute the “same offense” under CPL 40.20(1).

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