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The Acts of Applying for a Fake Non-Driver ID Card and Possessing the Fake Non-Driver ID Card Upon Arrest (Four-Months After Submitting the Application) Did Not Constitute a Single Criminal Venture—the Prohibition Against Double Jeopardy Did Not Preclude the Second Charge

The Court of Appeals, in a full-fledged opinion by Judge Lippman, determined defendant was not entitled to the dismissal of charges on double jeopardy grounds.  Defendant had used his son’s identification information to procure a non-driver ID card in Suffolk County.  Several months later defendant was stopped by police in Westchester County, presented the fake non-driver ID card, and was subsequently charged with possession of a forged instrument in the second degree. Defendant pled guilty to possession of a forged instrument third degree. When defendant’s son returned to New York State (after a four-year absence) and applied for a driver’s license in Westchester County, authorities became aware of defendant’s submission (in Westchester County) of a fake application (MV-44 form) for the non-driver ID. Defendant was then charged in Westchester County with possession of a forged instrument (the ID application form) as well as forgery.  The Court of Appeals held that the two offenses were not “integrated, interdependent acts as seen in conspiracy cases or complex frauds…”. Therefore, unlike individual acts within such conspiracies or complex frauds, the two acts did not constitute a “single criminal venture.” The court noted: “A closer case might be presented had defendant applied for a driver’s license in Suffolk County with his son’s papers and showed the temporary driver’s license later that same day when his car was stopped by police. In such circumstances, the timing and criminal purpose of the two acts would be more interrelated than the circumstances presented here:”

Under CPL 40.20, a subsequent prosecution for offenses involving the “same criminal . . . transaction,” as defined by CPL 40.10 (2), violates the statutory bar against double jeopardy unless an exception applies.

“‘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” (CPL 40.10 [2]). * * *

Part (b) of the CPL 410.10 definition “tends to be more applicable to crimes that involve planned, ongoing organized criminal activity, such as conspiracies, complex frauds or larcenies, or narcotics rings” (7 NY Prac., New York Pretrial Criminal Procedure § 2:6 [2d ed.]). This Court has recognized statutory violations of double jeopardy protections in drug trafficking cases where the “embracive nature of the crime of conspiracy” presents unique circumstances … .

Here, under the test presented by CPL 40.10 (2) (a), the offense of submitting a forged MV-44 form and the offense of presenting a forged non-driver ID to the police were many months apart and … involved different forged instruments — the non-driver’s license and the MV-44 application form — making them different criminal transactions. The Suffolk County charge was based on defendant’s completion and filing of the application form. The offense was complete once defendant submitted the forged application to the DMV in June 2009. The Westchester offense occurred four months later and was based on defendant’s presentation of the forged non-driver’s license to the officer. With the non-driver ID card in hand, defendant could give the appearance of a clean record, which would enable him to evade his criminal history and obtain a loan or employment under a false identity. Applying the alternative test defined by CPL 40.10 (2) (b), this case does not involve the integrated, interdependent acts as seen in conspiracy cases or complex frauds, and as such does not constitute a “single criminal venture” … . People v Lynch, 2015 NY Slip Op 04754, CtApp 6-9-15

 

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