People v Frascone
Annotate this CaseDecided on June 22, 2022
County Court, Rockland County
The People of the State of New York, Plaintiff,
against
Anthony Frascone, Defendant.
Indictment No. 70012-22
Lawrence A. Garvey, New City, N.Y. (Joseph Reiter of counsel), for defendant.
Thomas E. Walsh, II, District Attorney, Rockland County (Nicole Garcia of counsel), for the People. Larry J. Schwartz, J.
The defendant stands charged in the above-refenced indictment with grand larceny in the first degree, insurance fraud in the first degree and grand larceny in the second degree. The defendant is accused of stealing workers' compensation insurance premiums from the Travelers Insurance company and from The Hartford by causing false headcount and payroll information to be submitted in connection with applications for coverage. It is alleged that this resulted in premium calculations by the insurance companies that were significantly less than what was owed for the actual risks insured. Witnesses from the insurance companies testified before the grand jury that their companies were bound to pay all workers' compensation claims against the defendant's policies regardless of any misrepresentations made during the application process. As a result, the witnesses testified, their respective insurance companies are owed the unpaid premiums.
The defendant now moves to dismiss the indictment and argues, among other things, that there was no evidence presented to the grand jury to establish that any element of the charged offenses occurred in Rockland County. The defendant contends that, in effect, the record before the grand jury did not establish that he was legally accountable for any wrongful acts committed within Rockland County. At most, he argues, the evidence demonstrated that alleged wrongful acts were committed in Suffolk County by Michael Villano, his insurance broker. Nor, the defendant contends, is there evidence that the result of any charged offense occurred in Rockland County. Thus, the defendant states that this Court does not have geographical jurisdiction of the charged offenses pursuant to CPL 20.40 and that the indictment must be dismissed.
The People oppose and argue that Rockland County is a proper jurisdiction for this prosecution because the insured company, owned by the defendant, was based in Congers, [*2]Rockland County and the insurance policies were issued "to a Rockland County business" (Garcia affirmation ¶ 23). The People also contend that Villano testified that all communications between him and the defendant occurred in Congers and that Investigator William Martinez testified that the defendant's criminal activity "occurred" in Congers (id. ¶ 23). The People also argue that Rockland County has jurisdiction because the defendant committed the charged crimes "for the benefit of his Rockland County business and that the benefit of defendant's criminal conduct was received and enjoyed in Rockland County." (id. ¶ 24).
I have considered (1) the amended omnibus motion which consists of a Notice of Motion and an Affirmation in Support, (2) The People's Affirmation in Opposition, and (3) the defense's Affirmation in Reply. Upon consideration of these papers, the stenographic transcript of the grand jury minutes, this court disposes of this motion as follows:
"Under our State Constitution and common law, a defendant has the right to be tried in the county where the crime was committed unless the Legislature has provided otherwise" (People v Greenberg, 89 NY2d 553, 555 [1997]). "A defendant may challenge geographical jurisdiction prior to trial, thereby compelling the prosecutor to demonstrate that the jurisdiction of the county to prosecute was sufficiently established before the Grand Jury." (McLaughlin v Eidens, 292 AD2d 712, 714 [3d Dept 2002]). "Such a challenge must fail if the Grand Jury minutes show some evidence from which jurisdiction could be inferred." People v Kellerman, 102 AD2d 629, 630 [3d Dept 1984]).
CPL 20.40 provides, in relevant part:
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 or her own conduct or by the conduct of another for which he or she is legally accountable pursuant to section 20.00 of the penal law, when:(1) Conduct occurred within such county sufficient to establish:(a) An element of such offense; or
(b) An attempt or a conspiracy to commit such offense; or
(2) Even though none of the conduct constituting such offense may have occurred within such county:(a) The offense committed was a result offense and the result occurred in such county . . .
CPL 20.10 provides the definition of a result offense. " 'Result of an offense.' When a specific consequence, such as the death of the victim in a homicide case, is an element of an offense, the occurrence of such consequence constitutes the "result" of such offense. An offense of which a result is an element is a 'result offense.' "
The indictment must be dismissed. Here, the grand jury minutes are devoid of any evidence that any of the charged offenses occurred in Rockland County. In support of their claim that geographical jurisdiction has been established, the People state, without citation to the grand jury transcript, that Villano "testified all communication with Defendant occurred in Congers, NY" (Garica affirmation ¶ 23). Yet, as argued by the defense, the grand jury minutes reveal no such testimony. The People also state that Investigator Martinez "testified that Frascone's criminal activity occurred in Congers, NY" (id.). Again, as argued by the defense, the grand jury minutes reveal no such testimony.
Indeed, the only information before the grand jury connecting the charged offenses to Rockland County is the implication that defendant lived in Congers when the charged crimes were committed and proof that his insured company was registered in Congers.
The People argue that Rockland County has geographical jurisdiction because the [*3]defendant and his business enjoyed the benefit of the charged crimes in Rockland. This argument is without merit. First, even if it was established that at the time the alleged crimes the defendant resided in Rockland County, and his business was registered here, these facts would still not satisfy any element of the charged offenses to provide jurisdiction under CPL 20.40(1) (see People v Schwartz, 21 AD3d 304, 306 [1st Dept 2005]).
Second, the People argue, in effect, that the result of the charged crimes provides geographical jurisdiction. However, CPL 20.10(2) makes clear that only "result offenses", crimes where a specific consequence is an element of the offense, can provide geographical jurisdiction to a county where the actor's conduct occurred outside of that county (CPL 20.10[2] ["such as the death of the victim in a homicide case"]). The charged offenses are not result offenses so the place where the "benefits" are enjoyed, as argued by the People, is of no import to the geographical jurisdiction of the Court.
In light of the foregoing, I find that the jurisdiction of Rockland County as the lawful venue for this prosecution was not sufficiently established before the grand jury pursuant to CPL 20.40 (see McLaughlin at 714) and, accordingly, it is
ORDERED that the indictment is dismissed, with leave to re-present.
This constitutes the Decision and Order of the court.
Dated: June 22, 2022New City, New York
HON. LARRY J. SCHWARTZ, J.C.C.
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