This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 77
The People &c.,
Respondent,
v.
Ricky A. Lynch,
Appellant.
Louis E. Mazzola, for appellant.
Ronnie Jane Lamm, for respondent.
LIPPMAN, Chief Judge:
In this appeal, we determine whether defendant's second
prosecution in New York was based on the same criminal
transaction as a previous prosecution, and thus barred by New
York's statutory double jeopardy protections. We hold that these
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prosecutions involved different criminal transactions.
On June 15, 2009, defendant used false information when
filling out an application (an MV-44 form) for a non-driver
identification card, a form he submitted to the New York State
Department of Motor Vehicles (DMV) in Suffolk County. On the
application, defendant represented himself to be Ricky Lynch,
Jr., defendant's son, using his son's name, date of birth, and
social security number.
In November 2009, while driving in Westchester County,
defendant made an illegal U-turn for which he was stopped by the
police. When asked for identification, defendant produced the
non-driver ID card he had obtained in June 2009. During an
inventory of the car after defendant was arrested for driving
with a suspended license, the officer found two other fake or
forged identification cards on the floor behind the driver's
seat. Defendant was charged with criminal possession of a forged
instrument in the second degree, aggravated unlicensed operation
of a motor vehicle in the second degree, and false personation.
He pleaded guilty to a reduced charge of criminal possession of a
forged instrument in the third degree in satisfaction of the
indictment.
Defendant's son, Ricky Lynch, Jr., returned to New York
in February 2010 after living with his mother in Arizona for four
years. When he attempted to obtain a new driver's license at the
DMV, he was told he had unpaid tickets and that his license was
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suspended. After reviewing its records, the DMV found that
defendant had used his son's identifying information to apply for
an ID card. Defendant's son identified his father's photograph
on licenses ostensibly issued to Ricky Lynch, Jr.
In August 2010, a Suffolk County Grand Jury charged
defendant with criminal possession of a forged instrument in the
second degree, alleging that on June 15, 2009, he possessed a
forged instrument (the MV-44 form); forgery in the second degree,
alleging that on June 15, 2009, with intent to defraud his son,
he falsely made and completed the form; identity theft in the
first degree, alleging that on the same date, he assumed the
identity of his son; and offering a false instrument for filing
in the first degree, alleging that on the same date, he presented
the said form.1
Defendant moved to dismiss the Suffolk County charges
on statutory double jeopardy grounds under Criminal Procedure Law
40.20. The court denied the motion, reasoning that "defendant is
not charged in Suffolk County with possession of the identity
card and thus the 'res' of the crime is a completely different
instrument" and "although related, the alleged crimes in Suffolk
were complete with the defendant filing his application." "That
1
Following a jury trial, defendant was convicted of all charges
in the indictment. At sentencing, the court dismissed the
conviction of forgery in the second degree on the ground that one
cannot be convicted of both criminal possession of a forged
instrument and forgery of the same written instrument.
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the defendant possessed the fruits of that crime is a separate
and distinct act which is not subject to a defense of double
jeopardy."
The Appellate Division affirmed, holding that there was
no statutory double jeopardy violation because the "crimes for
which the defendant was prosecuted in Suffolk County were not
based upon the same criminal transaction as the crime for which
he was prosecuted in Westchester County" (116 AD3d 979, 979 [2d
Dept 2014]). "The Westchester County prosecution involved a
separate offense, which arose out of defendant's possession of a
different forged instrument than the one at issue in the Suffolk
County prosecution" (id. at 980).
Under CPL 40.20, a subsequent prosecution for offenses
involving the "same criminal . . . transaction," as defined by
CPL 40.10 (2), violates the statutory bar against double jeopardy
unless an exception applies.
"'Criminal transaction' means conduct which
establishes at least one offense, and which
is comprised of two or more or a group of
acts either (a) so closely related and
connected in point of time and circumstance
of commission as to constitute a single
criminal incident, or (b) so closely related
in criminal purpose or objective as to
constitute elements or integral parts of a
single criminal venture" (CPL 40.10 [2]).
The definition contains two alternative tests to
determine whether two offenses are part of the same criminal
transaction. Part (a) "involves consideration of the nature,
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timing and circumstances of the offenses" so that, for example,
where a seller of pornographic materials sold two pornographic
items at the same time to a single purchaser, the acts
constituted the same criminal transaction (7 NY Prac., New York
Pretrial Criminal Procedure § 2:6 [2d ed.] citing People v North
Street Book Shoppe, Inc., 139 AD2d 118 [3d Dept 1988]). In
contrast, a court identified two separate criminal transactions
where defendants used stolen credit cards to purchase
merchandise, for which they were convicted of criminal possession
of stolen property and forged instruments in New York State, and
three months later bought different stolen credit cards, for
which they were convicted in federal court of conspiracy to
purchase stolen credit cards (see People v Vesprey, 183 AD2d 212
[1st Dept 1992], lv denied 81 NY2d 894 [1993]). Different
criminal transactions have also been recognized for separate
sales of drugs to the same person at the same place, separated by
48 hours (see People v Robinson, 65 AD2d 896 [3d Dept 1978]).
In People v Dallas (46 AD3d 489 [1st Dept 2007]),
defendant's prosecution in New York County for possession of 12
counterfeit documents and subsequent prosecution in Kings County
for the sale of different false identification documents "of the
same nature," did not violate the statutory protections against
double jeopardy because the offenses "were not so closely related
as to constitute a single criminal transaction" (id. at 490
[internal quotation marks omitted]). "The fact that defendant
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was in the business of selling counterfeit identifications, and
that his conduct in both counties may have been admissible in
both prosecutions . . . did not make his possession of different
documents at different times a single criminal transaction"
(id.).
Part (b) of the CPL 410.10 definition "tends to be more
applicable to crimes that involve planned, ongoing organized
criminal activity, such as conspiracies, complex frauds or
larcenies, or narcotics rings" (7 NY Prac., New York Pretrial
Criminal Procedure § 2:6 [2d ed.]). This Court has recognized
statutory violations of double jeopardy protections in drug
trafficking cases where the "embracive nature of the crime of
conspiracy" presents unique circumstances (People v Abbamonte, 43
NY2d 74, 85 [1977]; see Matter of Abraham v Justices of NY
Supreme Ct. of Bronx County, 37 NY2d 560 [1975] [concluding that
successive prosecutions in state and federal court for drug
trafficking of the same drugs constituted the same criminal
transaction and violated statutory double jeopardy protections]).
In Abraham, this Court observed that each defendant in the drug
trafficking conspiracy "played a well-defined role in a highly
structured, disciplined and vertically integrated criminal
enterprise," and "the part with which each was immediately
concerned was dependent upon the success of the whole" (id. at
567 [internal citation and quotation marks omitted]). The Court
concluded that the "acts and conduct constituted 'integral parts
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of a single criminal venture' and, thus, a single 'criminal
transaction' within the meaning of CPL 40.20" (id.).
Here, under the test presented by CPL 40.10 (2) (a),
the offense of submitting a forged MV-44 form and the offense of
presenting a forged non-driver ID to the police were many months
apart and, as in People v Dallas (supra), involved different
forged instruments -- the non-driver's license and the MV-44
application form -- making them different criminal transactions.
The Suffolk County charge was based on defendant's completion and
filing of the application form. The offense was complete once
defendant submitted the forged application to the DMV in June
2009. The Westchester offense occurred four months later and was
based on defendant's presentation of the forged non-driver's
license to the officer. With the non-driver ID card in hand,
defendant could give the appearance of a clean record, which
would enable him to evade his criminal history and obtain a loan
or employment under a false identity. Applying the alternative
test defined by CPL 40.10 (2) (b), this case does not involve the
integrated, interdependent acts as seen in conspiracy cases or
complex frauds, and as such does not constitute a "single
criminal venture" (see 37 NY2d at 567).
A closer case might be presented had defendant applied
for a driver's license in Suffolk County with his son's papers
and showed the temporary driver's license later that same day
when his car was stopped by police. In such circumstances, the
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timing and criminal purpose of the two acts would be more
interrelated than the circumstances presented here.
As the successive prosecutions here involved two
different criminal transactions, we need not reach defendant's
remaining contentions.
Accordingly, the Appellate Division order should be
affirmed.
* * * * * * * * * * * * * * * * *
Order affirmed. Opinion by Chief Judge Lippman. Judges Read,
Pigott, Rivera, Abdus-Salaam, Stein and Fahey concur.
Decided June 9, 2015
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