People v Sudore

[*1] People v Sudore 2009 NY Slip Op 51333(U) [24 Misc 3d 1209(A)] Decided on June 23, 2009 County Court, Monroe County Renzi, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 23, 2009
County Court, Monroe County

The People of the State of New York, Plaintiff,

against

James Sudore, Defendant.



0934-2008



Appearances:For the People:

Matthew Dunham, Esq.

Assistant District Attorney

For the Defendant:

Mary Wilkins, Esq.

Assistant Public Defender

Alex R. Renzi, J.

The defendant is charged by indictment with three counts of grand larceny in the third degree, one count of grand larceny in the fourth degree, and two counts of petit larceny. The charges detail numerous incidents between June 1, 2005 and April 17, 2008 wherein it is alleged that the defendant defrauded various homeowners by failing to commence or complete home improvement contracts, resulting in losses to the victims of tens of thousands of dollars.

The defendant has moved this Court to inspect the grand jury minutes and to dismiss the indictment claiming insufficient evidence was presented to the grand jury to sustain the indictment, as well as alleging defective grand jury proceedings in the presentment of the case by the District Attorney. The Court has issued a prior ruling denying the defendant's motion (Decision and Order of this Court, February 13, 2009).

Also, the defendant maintains that his prosecution is barred on the grounds of double jeopardy. This decision addresses that aspect of the defendant's motion.

DOUBLE JEOPARDY

The defendant claims that the indictment is "double jeopardy" dismissible based upon an August 5, 2008 adjudication in New York State Supreme Court (Galloway, J.) against this defendant for civil and criminal contempt under §§ 750 and 753 of the NY Judiciary Law. That [*2]adjudication involved a finding by the Court that the defendant violated a 2004 consent decree entered with the New York State Attorney General's Office. In the 2004 consent decree the defendant agreed, among other things, to make restitution for past victims of his fraud; post a $100,000 performance bond; make quarterly filings with the Attorney General identifying all new home improvement contracts into which he entered; and refrain from any future fraudulent business practices.

However, the Attorney General, citing numerous violations of that consent decree, petitioned the Court in 2008 for a finding of civil contempt against the defendant. That contempt action involved proof that the defendant failed to post the performance bond; failed to make restitution to his past victims; and failed to file quarterly statements with the Attorney General. In addition, the Attorney General alleged that the defendant had committed new acts of fraud in that the defendant had victimized more homeowners. It so happens the victims detailed in the instant indictment were the same persons the Attorney General claims the defendant newly defrauded subsequent to the 2004 consent decree.[FN1]

In June, July and August 2008 Supreme Court conducted an evidentiary hearing into the contempt petition. The defendant was found by the Court to be in contempt of the consent decree based on, among other things, his failure to repay (through the Attorney General's Office) approximately $68,000.00 restitution. The Court sanctioned the defendant by imposing a fine and ordering the aforementioned restitution, including restitution for the new victims, and sentencing the defendant to incarceration "for a period of six months [for the civil contempt] and thirty days [for the criminal contempt]."

The issue to be addressed by this Court is whether the indictment for penal law larceny crimes is subject to dismissal on double jeopardy grounds due to the fact that the prior contempt judgment entered in Supreme Court was based at least partly upon fraud committed against the same victims and incidents as contained in the criminal indictment.

DISCUSSION

Criminal Procedure Law §210.20(1)(e) provides that "[a]fter arraignment upon an indictment, the superior court may, upon motion of the defendant, dismiss such indictment . . . upon the ground that . . .[t]he prosecution is barred by reason of a previous prosecution, pursuant to section 40.20."

Criminal Procedure Law §40.20 states that "[a] person may not be twice prosecuted for [*3]the same offense" [FN2] and provides further, in relevant part, that

A person may not be separately prosecuted for two offenses based upon the same act or criminal transaction unless:

(a) The offenses as defined have substantially different elements and the acts establishing one offense are in the main clearly distinguishable from those establishing the other; or

(b) Each 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.[FN3]

Unlike the classic "double jeopardy" situation, this defendant was not previously tried and convicted of a crime under a criminal indictment. Rather, an order and judgment was entered against him by a Supreme Court Justice following a trial on a contempt petition. Some of the testimony and evidence offered at the civil trial constitutes the underlying evidence for the criminal indictment before this Court. Of further distinction is the fact that the instant indictment does not charge "criminal contempt" under the penal law [FN4], but rather charges substantive penal law larceny offenses.

At first blush it would appear that the defendant's reliance upon People v. Wood, 95 NY2d 509 (2000) is dispositive of the double jeopardy issue in this case. In Wood, orders of protection were placed against the defendant in both Family Court and Rochester City Court. The victim filed a contempt petition in Family Court after she received harassing and threatening telephone calls from the defendant. Those calls clearly violated the terms contained in both the Family Court and City Court orders of protection. Following a hearing, the Family Court found the defendant in contempt of the Family Court order of protection, and sentenced him to six months incarceration.

Following the Family Court proceedings, the District Attorney obtained an indictment for criminal contempt and aggravated harassment based upon a violation of the City Court order of protection. The trial court denied the defendant's motion to dismiss the criminal indictment on double jeopardy grounds. However, that decision was reversed by the Appellate Division [FN5] and affirmed by the Court of Appeals which held that "the defendant's prosecution for criminal contempt in the first degree under Penal Law § 215.51(c) is barred because he was previously prosecuted for contempt under the Family Court Act Article 8." Wood, 95 NY2d at 515.

At the center of Wood is the fact that the subsequent indictment charged the defendant [*4]with Penal Law contempt, under §215, and that the District Attorney argued that double jeopardy did not apply because "the Family Court contempt proceeding was based upon the violation of a different order of protection than that which served as a basis for the criminal contempt charge." Wood, supra, at 512.The Court of Appeals, however, found that argument to be unavailing, holding that the orders of protection "had one and the same purpose" and that the prosecution could not "circumvent the double jeopardy bar simply by seeking to prosecute the criminal action for violation of another court order based on the same conduct." Wood, supra, at 515.

In the instant case, however, the defendant seeks a double jeopardy dismissal of a larceny indictment following his adjudication as a contemnor under Judiciary Law §§ 750 and 753. Our Courts have traditionally recognized the inherent distinction of the principle purposes between Penal Law violations and contempt proceedings under the Judiciary Law. A Penal Law violation "comprehends an offense against the People of the State of New York and that Judiciary Law, §750, embodies the inherent power of the court to punish summarily for an offense against the dignity of the court." Marangelo v. Criminal Court of City of New York, 49 Misc 2d 414 (NY Sup. Ct., Feb. 16, 1966). "The purpose of a criminal contempt proceeding for willful disobedience of its lawful mandate is to vindicate the authority of the court and its orders." Mount Sinai Hospital, Inc., et al v. Davis, 8 AD2d 361, 363 (First Dept., 1959).

Supreme Court found the defendant in violation of two sections of the Judiciary Law: §§ 750 and 753.

Judiciary Law § 750, titled "Power of courts to punish for criminal contempt," provides

A.A court of record has power to punish for a criminal contempt, a person guilty of any of the following acts: . . .

3.Wilful disobedience to its lawful mandate.

Judiciary Law § 753, titled "Power of courts to punish for civil contempt," provides

A.A court of record has power to punish, by fine and imprisonment, or either, a neglect or violation of duty, or other misconduct, by which a right or remedy of a party to a civil action or special proceeding, pending in the court may be defeated, impaired, impeded, or prejudiced, in any of the following cases: . . .

2.A party to the action or special proceeding . . . for any deceit or abuse of a mandate or proceeding of the court.

In applying the traditional "same elements" test set forth in Blockburger v. United States [FN6] to this case, this Court finds that the larceny statutes and the Judiciary Law contempt provisions [*5]clearly proceed on different elements.[FN7] While larceny involves the theft of property from its rightful owner, and valued at a certain amount, the Judiciary Law contempt statutes require a willful violation of the lawful mandate of a Court. Thus, a criminal defendant can commit larceny and not be in violation of prior lawful mandate of a Court, while a civil party can violate the lawful mandate of the Court but not necessarily violate a Penal Law larceny statute.

Without question, had the District Attorney in this case indicted the defendant on Penal Law criminal contempt charges (§§ 215.50 and 215.51) this Court would dismiss those counts on double jeopardy grounds. See People v. Wood, supra, and People v. Boston, et al., 3 Misc 3d 1107(A) (NY Crim. Ct., May 27, 2004).

Moreover, upon a further analysis of the Supreme Court's "Order and Judgment Punishing Respondent [defendant Sudore] for Criminal and Civil Contempt," it is plainly evident that the Court made it's finding of contempt not on the presentation of a Penal Law larceny case, but rather on a finding that the respondent [defendant] violated provisions of other statutes as set forth in the previous consent order.[FN8]

That consent order stated that the "[r]espondents are permanently enjoined from violating NY Executive Law . . . §63(12), Articles 21-A and 36-A of the New York General Business Law . . ., NY Lien Law . . . 71-a(4), Article 10-A of the NY Personal Property Law . . ., NY Uniform City Court Act . . . §1813 and NY Uniform Justice Court Act . . . §1813."[FN9]

Had the 2004 consent order set forth a condition that the Respondent (this defendant) be permanently enjoined from violating NY Penal Law §§215.50 and 215.51, and had the findings [*6]of Supreme Court as contained in its 2008 contempt judgment stated that the defendant was in violation of those criminal statutes, then this Court would agree with the defendant that the present indictment is dismissible on double jeopardy grounds.

Instead, the conditions placed on the defendant, as well as the Court's finding of contempt, enumerate the defendant's violations of civil and business statutes, and not of any criminal law.[FN10]

Based on the foregoing, this Court concludes that the defendant's prosecution for grand larceny and petit larceny, as set forth in the indictment, is not barred on double jeopardy grounds under either the United States Constitution or NY Criminal Procedure Law §40.20.

Accordingly, the defendant's motion to dismiss the indictment on those grounds is denied.

The foregoing constitutes the Decision and Order of this court.

Dated:June ______, 2009

Rochester, New York

______________________________

HON. ALEX R. RENZI

Monroe County Court Judge Footnotes

Footnote 1:Submitted by the defendant as part of this Court's review of the record were the pertinent documents filed under civil Index No. 2007-6818. These documents included the Supreme Court's "Order of Commitment" of August 5, 2008; the evidentiary hearing minutes; the "Order and Judgment Punishing Respondent for Criminal and Civil Contempt"; and the "Stipulation and Consent" and "Consent Order and Judgment" from August 31, 2004 .

Footnote 2:§40.20, subd. 1.

Footnote 3:§40.20, subd. 2.

Footnote 4:NY Penal Law. §§ 215.50 and 215.51.

Footnote 5:People v. Wood, 260 AD2d 102 (Fourth Dept., 1999).

Footnote 6:284 U.S. 299 (1932). "The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not." Blockburger, at 304.

Footnote 7:The Legislature essentially codified Blockburger in 1970 by enacting CPL §40.20.

Footnote 8:"The Respondent, James C. Sudore, is guilty of a Civil Contempt of Court in having willfully disobeyed the provisions and requirements of the Consent Order entered by this court on August 31, 2004 . . .namely, the directions therein that Respondent provide Petitioner's office, on a quarterly basis, with copies of all home improvement contracts entered into with consumers during the period 2004, 2005 and 2006, and, directing Respondent to remit to Petitioner's office by August 30, 2004, the sum of $20,000 as the first payment which was to be applied to restitution, penalties and costs, and, directing Respondent to make minimum monthly payments of $200, commencing on September 15, 2004 and continuing on the 15th day of each month until the aggregate amount totaling $27,155.82 plus window restitution claims were unsatisfied, and, from violating NY Executive Law 63(12), Article 22-A of the NY General Business Law, NY Lien Law §71-a(4), Article 10-A of the NY Personal Property Law, NY Uniform City Court Act §1813 and, from engaging in continued violations of the New York Home Improvement Contract Law, under NY General Business Law, Article 36.A . . . ." (Order and Judgment Punishing Respondent for Criminal and Civil Contempt, August 5, 2008, at pp. 2-3).

Footnote 9:Consent Order and Judgment, August 31, 2004, at p. 3.

Footnote 10:This differs from the facts of United States v. Dixon, 509 U.S. 688 (1993). There, Justice Scalia held that double jeopardy applied to a defendant's drug prosecution, which had been the subject of a previous contempt prosecution for violating conditions of the defendant's earlier release on a murder arrest. That release was conditioned on the defendant not committing "any criminal offense." The contempt hearing centered exclusively on his new drug arrest.

Justice Scalia concluded that in Dixon's case the underlying substantive offense of possession of cocaine with intent to distribute was the "same offence" for double jeopardy purposes as the contempt offense for which Dixon already had been prosecuted. Justice Scalia reasoned that the drug offense constituted a "species of lesser included offense" of the contempt offense because the bail court had set as a condition of the defendant's release that he not violated the entire federal code.

(FN 10, con't) See generally, David S. Rudstein, Double Jeopardy and Summary Contempt Prosecutions, 69 Notre Dame L. Rev. 691 (1994).