People v Vlachos

[*1] People v Vlachos 2006 NY Slip Op 50569(U) [11 Misc 3d 1075(A)] Decided on April 10, 2006 Justice Court, Village Of Hastings-on-Hudson, Westchester County DiSalvo, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through October 10, 2006; it will not be published in the printed Official Reports.

Decided on April 10, 2006
Justice Court, Village of Hastings-on-Hudson, Westchester County

People of the State of New York

against

Christopher P. Vlachos, Defendant,



2444

Joseph A. DiSalvo, J.

The question presented at the March 29, 2006 non-jury trial of this matter is whether the Hastings-on-Hudson Justice Court was as appropriate venue for the prosecution of this case. Defendant argued that the case should be dismissed because the People did not bring the case before the City Court in Yonkers, the city identified by People's sole witness as the location where Defendant's alleged public lewdness occurred.

Defendant is charged with public lewdness, a B misdemeanor [Penal Law §245.00]. The People's witness testified that she was a passenger on a commuter train traveling north from Grand Central Terminal in Manhattan, through the Bronx, and into Westchester County. She identified Defendant as another passenger on the train whom she observed commit an act of public lewdness as the train traveled between the Glenwood and Greystone stations in the city of Yonkers.

At the close of People's case, Defendant moved to dismiss, claiming that the Court lacked jurisdiction over the offense because the witness clearly testified that the alleged offense occurred in the City of Yonkers. The People opposed the application, arguing that the offense was alleged to have occurred upon a common carrier, a commuter train, and that, therefore, Criminal Procedure Law §20.40(4)(f) permits prosecution in any county through which the train passed, and that Hastings-on-Hudson had geographical jurisdiction pursuant to CPL §20.50(1), which makes the principles of CPL §20.40 applicable to city, town, and village courts within a county. [*2]

The Court reserved decision. Without calling any witnesses, Defendant rested.

For the reasons set forth below, this Court denies Defendant's motion to dismiss and finds Defendant guilty of violating Penal Law §245.00.

CPL §20.40(4)(f) provides that: "A person may be convicted in an appropriate criminal court of a particular county, of an offense of which the criminal courts of this state have jurisdiction pursuant to section 20.20, committed either by his own conduct or by the conduct of another for which he is legally accountable pursuant to section 20.00 of the penal law, when:..... 4. Jurisdiction of such offense is accorded to the courts of such county pursuant to any of the following rules:.....(f) An offense committed on board a railroad train, aircraft or omnibus operating as a common carrier may be prosecuted in any county through or over which such common carrier passed during the particular trip, or in any county in which such trip terminated or was scheduled to terminate."

CPL §20.50(1) makes the principles set forth above applicable to the local criminal courts within a county, as follows: "1. The principles prescribed in section 20.40, governing geographical jurisdiction over offenses as between counties of this state, are, where appropriate, applicable to the determination of geographical jurisdiction over offenses as between cities, towns and villages within a particular county unless a different determination is required by the provisions of some other express provision of statute."

The clear language of 20.40(4)(f) requires that a court in Westchester County retain jurisdiction over this matter because the train in question traveled within Westchester County and Hastings-on-Hudson is a village within the County of Westchester. Likewise, the clear language of CPL §20.50(1) makes it appropriate for this Court to retain geographical jurisdiction because, consistent with the principles of CPL §20.40, Hastings-on-Hudson is a village through which the train on which Defendant rode was to pass, and did, pass. Therefore, just as Westchester County is an appropriate county for prosecution, so is Hastings-on-Hudson an appropriate local court in which the People may prosecute the case, CPL §20.50(1). Under the language of CPL §20.40(4)(f), the case could have been brought in Bronx County or New York County as well; [*3]and under the language of CPL §20.50(1), the case, within Westchester County, could have initiated in the City Court of Yonkers as well as the Hastings-on-Hudson Justice Court. Such opportunity, however, is just that, an opportunity, and does not mandate that the case be

dismissed if not brought in the court of the municipality in which the offense was alleged to have been committed.

Defendant cites People v. Moore, 46 NY2d 1, 412 N.Y.S.2d 795 (1978) for the proposition that CPL §20.40(4)(f) should not apply to the case herein because the specific location of the alleged offense is known. Moore involved a rape prosecution in Kings County when the offense was alleged to have taken place in a motor vehicle in Queens County, just across the Kings County border. The Court in Moore held inapplicable the provisions of subdivision (g) of CPL §20.40(4), a provision similar to subdivision (f) that otherwise would have permitted a prosecution to occur in any county through which a motor vehicle traveled when an offense is alleged to have occurred in the motor vehicle during the trip in which it traveled through more than one county. The Moore Court, in a 4-3 decision over a vigorous dissent, reasoned that the statute did not apply in a case where the exact location of the offense was known.

The Court of Appeals re-visited Moore in People v. Greenberg, 89 NY2d 553, 656 N.Y.S.2d 192 (1997) and refused to apply the reasoning of Moore to a case involving not an automobile but, rather a common carrier, a commuter train traveling from Westchester County to New York County. In Greenberg, the defendant passed a forged instrument [a weekly train pass] in Westchester and was arrested and prosecuted in New York County, at the end of the trip. The Greenberg Court distinguished Moore on the difference in means of transportation and history of the statute [the common carrier statute originated in1877, the vehicle subdivision in 1971] and clearly held that prosecution in New York County was proper. Since Greenberg involved a common carrier and the same two counties as in this case, it is the controlling precedent. Moore is not.

Accordingly, under the principles established in CPL §20.40(4)(f) as applicable to this Court through CPL §20.50(1), and pursuant to the reasoning of the Court of Appeals in Greenberg, this Court holds that Hastings-on-Hudson is a geographically appropriate venue for trial of the charges against Defendant herein.

This Court finds that the unrebutted testimony of People's witness was credible as to the public lewdness by Defendant. Accordingly, this Court finds beyond a reasonable doubt that Defendant violated Penal Law §245.00, by committing public lewdness, a B Misdemeanor.

The foregoing constitutes the Judgment of the Court.

Dated: April 10, 2006 ______________________________________[*4]

Joseph A. DiSalvo

Village Justice

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