This matter comes before the Court by way of Defendant’s motion to dismiss the Indictment No.87-2018 pursuant to CPL §210.20(1)(e) and CPL §40.20. The People submitted a letter declining to file an opposition and stating that they would leave a determination of the merits of Defendant’s application to the Court’s discretion.The Defendant herein was charged under Indictment #87-2018 with two (2) counts of Robbery in the Second Degree pursuant to PL §160.10(2)(b); two (2) counts of Robbery in the Second Degree pursuant to PL §160.10(1); three (3) counts of Coercion in the First Degree pursuant to PL §135.65(1); one (1) count of Grand Larceny in the Third Degree pursuant to PL §155.35(1); one (1) count of Burglary in the Second Degree pursuant to PL §140.25(1)(d); one (1) count of Tampering with Physical Evidence pursuant to PL §215.40(2); one (1) count of Assault in the Second Degree pursuant to PL §120.05(3); one (1) count of Assault in the Second Degree pursuant to PL §120.05(6); one (1) count of Reckless Endangerment in the First Degree pursuant to PL §120.25; and one (1) count of Unlawfully Fleeing a Police Officer in a Motor Vehicle in the Third Degree pursuant to PL §270.25.These charges stem from the Defendant’s participation in the armed robbery of items from an AT & T store and two (2) victims1 located in Monticello, New York. During the course of the robbery, the Defendant and his co-defendant forced the two (2) victims into the AT & T’s storeroom at gunpoint and bound their hands and feet with tape. The Defendant and his co-defendant then fled the scene and engaged in a high-speed chase with law enforcement, during which a pursuing police officer was injured. One of the stolen cell phones was also thrown from the window of the vehicle used by the Defendant and codefendant.Subsequent to the Defendant’s State Indictment herein, the Defendant was removed to Federal custody, waived indictment and trial, and pled guilty to all of the charges contained in a seventeen (17) count Information before the Honorable Judge Pamela K. Chen of the United States District Court in the Eastern District of New York on December 4, 2018. As relevant to the underlying matter, these Federal charges to which the Defendant pled guilty involved the Defendant’s role in Hobbs Act robberies, Hobbs Act Robbery Conspiracy, and the use of firearms during crimes of violence.2 Specified as an overt act by the Defendant of the robbery, racketeering, and conspiracy charges in the Federal Information is the robbery of the AT & T store on which the underlying State Indictment herein is based.The Defendant now moves to dismiss the underlying State Indictment on the basis that his State prosecution is barred on double jeopardy grounds pursuant to CPL §40.20(2) due to his guilty pleas to all charges contained in the Federal Information. The Defendant claims, in sum and substance, that any State prosecution of the Defendant pursuant to the underlying State Indictment would result in the Defendant being prosecuted for offenses “based upon the same act or criminal transaction” as his prosecution under the Federal Information in Federal Court. The Defendant further alleges that the underlying State Indictment should be dismissed so that the Defendant is not subjected to “multiple punishments for the same offense or criminal transaction,” as the Defendant is allegedly receiving significant sentences of incarceration upon his conviction under the Federal Information.CPL §40.20 is New York State’s codification-and expansion-of constitutional protections against double jeopardy. This statute provides that an individual cannot be prosecuted twice for the same offense, or separately prosecuted for two (2) offenses based upon the same act or criminal transaction, unless certain exceptions are met. CPL §§40.20(1) and 40.20(2). As relevant to the matter herein, one exception allows separate prosecution for two (2) offenses based upon the same act or criminal transaction when “[e]ach 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.” CPL §40.20(2)(b). Determining whether this exception is applicable requires a comparison between the State and Federal charges in order to ascertain if any of the State offenses contain an element that is not an element of the Federal offenses and vice versa, as well as whether the statutes are meant to prevent different kinds of harm. People v. Bryant, 92 NY2d 216 (Ct App 1998). See also, Polito v. Walsh, 8 NY3d 683 (Ct App 2007); People v. O/Neill, 285 AD2d 669 (3d Dept 2001).It is axiomatic that the State charges of robbery, burglary, grand larceny, and tampering with physical evidence in the underlying State Indictment are barred on double jeopardy grounds, based upon the Defendant’s guilty pleas to the robbery, racketeering, and conspiracy charges in the Federal Information. As previously set forth herein, the Federal Information specifically names the Defendant’s conduct during the robbery of the AT & T store in Monticello, New York as overt acts evidencing the Defendant’s participation in the Federal crimes of robbery, racketeering, and conspiracy. As such, Counts One through Ten of the underlying State Indictment 87-2018 herein are dismissed on double jeopardy grounds.As to Counts Eleven through Fourteen of the underlying State Indictment 87-2018, further inquiry is necessary to determine whether State prosecution of the Defendant on these charges would result in double jeopardy, as these offenses are neither mentioned nor charged in the Federal Information. Counts Eleven and Twelve of the underlying State Indictment 87-2018 charge the Defendant with Assault in the Second Degree pursuant to PL §120.05(3) and PL§120.05(6). Count Thirteen of the underlying State Indictment 87-2018 charges the Defendant with Reckless Endangerment in the First Degree pursuant to PL §120.25. Count Fourteen of the underlying State Indictment 87-2018 charges the Defendant with Unlawfully Fleeing a Police Officer in a Motor Vehicle in the Third Degree pursuant to PL §270.25.These charges stem from the Defendant and his co-defendant allegedly fleeing the robbery of the AT & T store in Monticello, New York and, in the course of preventing law enforcement from effecting a vehicle and traffic stop in connection with same, drove on New York State Route 17 Eastbound at speeds up to approximately 125 miles per hour. The fleeing vehicle containing the Defendant and his co-defendant then abruptly stopped in the passing lane of New York State Route 17 Eastbound. A police officer pursing the fleeing vehicle, Village of Monticello Police Department Detective Michael G. Davis, thereafter stopped in the passing lane behind the vehicle containing the Defendant and his co-defendant. Detective Davis’ vehicle was then struck by another vehicle and Detective Davis sustained physical injury as a result thereof. The Defendant and his co-defendant then allegedly attempted to flee the scene of the crash site where Detective Davis was injured.To determine whether the exception under CPL §40.20(2)(b) applies to Counts Eleven through Fourteen of the underlying State Indictment herein, a comparison must first be made between the charges against the Defendant as contained in the Federal Information to which he pled guilty, and the State charges at issue in the underlying State Indictment to see whether each of the Federal offenses contains an element which is not an element of any State offense, and vice versa. Bryant, supra; Polito, supra; O’Neill, supra. As set forth in the Federal Information, the Defendant herein was charged with four (4) counts of Interference with Commerce by Threats or Violence under Title 18, §1951(a) of the United States Code, 18 USCA §1951(a), better known as the Hobbs Act, as a result of his participation in the conspiracy to rob, actual robbery, and use of firearms during said robbery of the AT & T store on Jefferson Street in Monticello, New York. This charge under the Hobbs Act required the Government to prove that the Defendant “obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section…” 18 USCA §1951(a).The statutory elements of the four (4) remaining Counts in the State Indictment are remarkably different. Counts Eleven and Twelve of the underlying State Indictment #87-2018 charged the Defendant with Assault in the Second Degree pursuant to PL §120.05(3) and PL§120.05(6). In order to obtain a conviction on these Counts, the People would be required to prove that the Defendant caused physical injury to a member of law enforcement with the intent to prevent him from performing his lawful duty as a police officer, and that the Defendant caused physical injury to a person who was not a participant in the crime during course of and in furtherance of the commission or attempted commission of a felony or immediate flight therefrom. Count Thirteen of the underlying State Indictment #87-2018 charges the Defendant with Reckless Endangerment in the First Degree pursuant to PL §120.25. This charge would require the People to prove that the Defendant engaged in conduct that creates a grave risk of death to another person under circumstances evincing a depraved indifference to human life. Count Fourteen of the underlying State Indictment #87-2018 charges the Defendant with Unlawful Fleeing a Police Officer in a Motor Vehicle in the Third Degree pursuant to PL §270.25. A conviction on this charge could only be obtained if the People proved that the Defendant, knowing that he was directed to stop his motor vehicle by a uniformed police officer or marked police vehicle by the activation of either the lights or the lights and siren of said vehicle, thereafter attempted to flee the officer by driving at speeds which equal or exceed twenty-five (25) miles per hour above the speed limit or engage in reckless driving as defined by VTL §1212.As the foregoing analysis demonstrates, each of the charges contained in the Defendant’s Federal Information contain an element that is not an element of any of the charges contained in Counts Eleven through Fourteen of the Defendant’s State Indictment. The Defendant’s Federal convictions relate solely to the robbery, and conspiracy to rob, cellular telephone stores and his brandishing of firearms during said robberies. Counts Eleven through Fourteen of the Defendant’s State Indictment require proof of physical injury to a police officer with the intent to prevent him from performing his lawful duties or to a person who is not a participant of the crime, that the Defendant engaged in conduct showing a depraved indifference to human life that caused a grave risk of death, and that the Defendant fled a police officer after a direction to stop or activation of a marked police vehicle’s lights and/or siren and drove at speeds equal to or in excess of twenty-five (25) miles above the speed limit or engaged in reckless driving. Neither the status of the victim (the physical injury to the police officer or non-participant) nor Defendant’s intent in injuring the police officer or his conduct during the robbery or his flight from the scene thereof are elements of the charges in the Defendant’s Federal Indictment as they pertain to the AT & T store robbery in Monticello, New York.The second prong of whether the exception under CPL §40.20(2)(b) applies to Counts Eleven through Fourteen of the underlying State Indictment herein requires a determination of whether the harms or evils sought to be regulated under the Federal and State statutes at issue are “very different.” CPL §40.20(2)(b). See also, Bryant, supra; Polito, supra; O’Neill, supra. The legislative intent of the Hobbs Act, which pertains to the Defendant’s charges under the Federal Information, was to forbid acts or threats of physical violence in furtherance of a plan or purpose to engage in robbery, extortion, and/or related attempts or conspiracies that interferes with interstate commerce, and to deter the use of firearms in connection with those crimes. Scheidler v. National Organization for Women, Inc., 547 US 9, 126 S.Ct 1264 (2006); Stirone v. U.S., 361 US 212, 80 S.Ct 270 (1960).In contrast, the rationale of the charges underlying the Defendant’s State Indictment focuses on protecting members of law enforcement and innocent bystanders from suffering physical injury or death. Specifically, the statutes of Assault in the Second Degree pursuant to PL §120.05(3) and PL§120.05(6) were intended to deter individuals from interfering with the performance of a police officer’s lawful duties and from causing physical injury to police officers, who are “a class of especially vulnerable persons by the nature of their duties, deserving of enhanced protection as guardians of the public safety,” or innocent bystanders during the commission of a crime. Bryant, supra. See also, People v. Rakusz, 127 Misc 2d 1 (Sup Ct New York 1985); People v. Praetz, 111 Misc 2d 785 (Dutchess Cty Ct 1981).Similarly, the crime of Unlawful Fleeing a Police Officer in a Motor Vehicle in the Third Degree pursuant to PL §270.25 is intended to protect law enforcement and the public from the dangerous conditions caused by high and low speed chases “by deterring such activity and appropriately punishing those who would engage in high speed chases.” PL§270.25; New York Bill Jacket, 2006 S.B. 8445, Ch. 738.Lastly, Reckless Endangerment in the First Degree pursuant to PL §120.25 “seeks to prevent and criminalizes the risk alone created by an actor’s conduct… [through] an objective assessment of the degree of risk presented by defendant’s reckless conduct.” People v. Chrysler, 85 NY2d 413 (Ct App 1995). It is clear that the charges contained within the Defendant’s Federal Information neither aim to prevent nor encompass the harms and evils criminalized by the charges contained in the Defendant’s State Indictment.Based on the foregoing, this Court finds that the State prosecution of the Defendant herein on Counts One through Ten of the State Indictment are barred on Federal and State double jeopardy grounds. This Court further finds that the State prosecution of the Defendant herein on Counts Eleven through Fourteen of State Indictment #87-2018 is not barred by the Federal nor State double jeopardy protections, as these charges fall under the exception contained in CPL §40.20(2)(b). As such, the People may proceed with its prosecution of the Defendant on Counts Eleven through Fourteen of State Indictment #87-2018. It is thereforeORDERED, that the Defendant’s Notice of Motion to Dismiss Indictment #87-2018 is granted in part and denied in part as set forth herein, and it is furtherORDERED, that the Defendant shall be produced before this Court on Monday, February 25, 2019 at 11:00 am for a scheduling conference.This shall constitute the Decision and Order of this Court.Dated: February 8, 2019Monticello, New York
