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Issues In NY Criminal Law--Vol. 4, #3©

Issue: Bootstrapping of charges and presumptions

Prosecutors have been known on occasion to "overcharge" defendants. The level of offense charged comes within prosecutorial discretion, with the defendant's remedy being review by the jury. Handling a Criminal Case in New York (2001-2002 ed.), § 3:6. In a series of cases, though, improperly adding on felony charges has been criticized. In this area, the prosecutor employs two criminal statutes. One crime is then improperly enhanced, or repeated.

Consider the following. In People v Donahue, the defendant was charged with two counts of Assault 1st degree. One of the counts was under Penal Law § 120.10(4), which makes it Assault 1st degree to cause serious physical injury in the course of committing another felony. The "other felony" in this case was the assault. The prosecution argued that the same assault could be used twice. 130 Misc2d 1080, 498 NYS2d 988 (Co Ct 1986). Handling § 3:66. The court disagreed, finding the prosecution's argument a tad too literal. To convict under Penal Law § 120.10(4), the underlying felony must be independent. The court noted, "Obviously, an assault occurs during the commission of every assault."

In People v Serrano, 119 Misc2d 321, 462 NYS2d 989 (Sup Ct 1983), the defendant was charged with Criminal Possession of a Weapon 2nd and 3rd and two counts of Criminal Use of a Firearm 2nd. The firearms statute prohibits possession of a deadly weapon when the actor is committing certain class C violent felonies. The VFOs include Criminal Possession of a Weapon 2nd degree. The prosecutor sought to use CPW 2nd as the underlying felony. The court put the kibosh on that attempt. "It makes little sense to read the statute in such a way or to believe the Legislature intended the separate and distinct element of possession of a loaded weapon be present twice." Similarly, another Firearms 2nd count in Serrano alleged displaying of a weapon, with CPW 3rd as the underlying crime. Once again the court noted its disapproval: "It also makes little sense to hold that the separate and distinct element of possession of a loaded weapon in the underlying felony be added when the use crime charges display of a firearm. Such a reading is redundant and superfluous. It would be hard to conceive of how a person could display a weapon without somehow possessing it."

In People v Horne, the defendant was charged with Robbery 1st and 2nd and two counts of Criminal Use of a Firearm 1st. One of the latter's elements is the commission of a designated class B VFO. The underlying felony used by the prosecution was the Robbery 1st charge; the particular Robbery subsection alleged display of a handgun. Again the resulting Firearms 1st crime was found to be redundant, requiring "display of a hand gun" as two elements. "Accordingly, this, court holds as a matter of law that no 'B' or 'C' armed violent felony may serve as the underlying felony when charging the crime of criminal use of a firearm." 121 Misc2d 389, 468 NYS2d 433 (Sup Ct 1983). See also, People v Crisler, 278 AD2d 887, 718 NYS2d 507 (4th Dept 2000). Additionally, the Horne court found that the "multiplicity" of the indictment -- that is, the charging of a single offense in several courts -- was improper. "The vice of multiplicity is that it may lead to a multiple sentence for the same offense. In addition 'prolix pleading may have some psychological effect upon the jury by suggesting to it that defendant has committed not one but several crimes'." Presumptions The use of two presumptions, with one inference based upon the other, may also be improper. People v Dumas, 156 Misc2d 1025, 595 NYS2d 644 (Sup Ct 1992).

"As Irving Younger says, at common law you are entitled to reply to a plaintiff who claims his cabbages were eaten by your goat: You had no cabbages. If you did, they were not eaten. If they were eaten, it was not by a goat. If they were eaten by a goat, it was not my goat. And if it was my goat, he was insane." James McElhaney, McElhaney's Trial Notebook


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