Monday's NY Blawg Round Up
Comedic Break

First Department Invites Legislature to Spring Into Action

People v. Zimmerman, 2006 NY Slip Op 06312 is an interesting case for a number of reasons, not the least of which is the fact that the First Department held that there is no county in New York that would serve as an appropriate venue in which to prosecute the defendant even though the State of New York had jurisdiction to prosecute the defendant.

In this case, the Attorney General was investigating alleged antitrust violations by department stores in New York and examined the defendant under oath in Ohio prior to commencing a civil or criminal action in New York.  The Attorney General then commenced a grand jury proceeding in New York County based on allegations that the defendant lied under oath six times during the examination in Ohio and subsequently obtained an indictment for perjury in the first degree. 

The First Department upheld the trial court's ruling that dismissed the indictment on the grounds that New York County was an inappropriate venue:

Although, as defendant concedes, New York State has jurisdiction to prosecute him pursuant to CPL 20.20(2)(b) based on the "particular effect" that his perjury has on the State, New York County does not.Assuming arguendo that defendant committed perjury based upon the statements he made in Ohio during the course of the New York State Attorney General's investigation, the "particular effect" venue provision would only confer geographical jurisdiction upon New York County if "[s]uch conduct had, or was likely to have, a particular effect upon such county...and was performed with intent that it would, or with knowledge that it was likely to, have such particular effect therein" (CPL 20.40[2][c]). Criminal 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]" (CPL 20.10[4])...

(A)ll that can be reasonably inferred from the facts (in this case) 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.

The Court then noted that under the current statutory scheme, no county in New York State would serve as an appropriate venue:

We find it perplexing that under the particular circumstances of this case, where the State of New York has jurisdiction to prosecute defendant, there is no county in the entire state which would serve as an appropriate venue under the current statutory scheme...(T)here should be a statute which directs a prosecutor to an appropriate county for venue purposes. We would invite the Legislature to consider amending the statute to accomplish this goal.

What's all this talk I hear about judges legislating from the bench?  Not in New York!  No sir!  Rather, we simply extend polite invitations for our oh-so-efficient legislature to spring into action.  I wonder if they'll get around to it before the statute of limitations for perjury expires.  I don't know about you, but I'm not holding my breath.

But, on the bright side, a victory for the defense is a victory for the defense, statutory loopholes notwithstanding.

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