Taub v. Altman

OPINION OF THE COURT

Chief Judge Kaye.

Defendants Sherman Taub, a Queens County resident, and International Mortgage Servicing Company (IMSC), a New Jersey limited liability company in which Taub owns a half interest, were indicted by a New York County grand jury on 34 counts arising from an alleged scheme to steal millions of dollars through the imposition of allegedly inflated mortgages on Ocean House Center, a Queens County not-for-profit adult home for residents with mental disabilities.

On this appeal, defendants challenge New York County’s jurisdiction to prosecute five of these counts, each of which charges defendants with the class E felony of offering a false instrument for filing in the first degree (see Penal Law § 175.35); jurisdiction as to the remaining 29 counts—including the class B and C felonies of grand larceny in the first and second degrees—is uncontested. The challenged counts are based on defendants’ filing of allegedly false New York State and City tax returns, which did not reflect certain interest income derived from the mortgages held by IMSC on Ocean House.

Inasmuch as the evidence before the grand jury did not establish that defendants’ tax returns were either mailed from or received in Manhattan, or that defendants committed any other act in Manhattan establishing an element of the relevant offenses (see CPL 20.40 [1] [a]), the People relied on a theory of “particular effect” jurisdiction in order to establish venue in New York County with respect to these counts.1 This theory permits a criminal court of a particular county to exercise geographical jurisdiction, or venue, over an offense when—even though none of the conduct constituting the offense occurred within that county—“[s]uch conduct had, or was likely to have, a particular effect upon such county or a political subdivision or part thereof, and was performed with intent that it would, or with knowledge that it was likely to, have such particular effect therein” (CPL 20.40 [2] [c]). Conduct constituting an offense has a “particular effect” upon a county when it “produces consequences which, though not necessarily amounting to a result or element of such offense, have a materially harmful impact upon the governmental processes or community welfare of [the] particular [county], or result in the defrauding of persons in such [county]” (CPL 20.10 [4]).

After Supreme Court denied their motion to dismiss the five tax-related counts, made on the ground that jurisdiction did not lie in New York County, defendants brought this CPLR article 78 proceeding, seeking a writ of prohibition to enjoin prosecution of those counts.2 The Appellate Division denied the petition, concluding that defendants’ filing of the allegedly false New York City tax returns had a particular effect on New York County. We disagree, and now reverse.

I.

At the outset, we emphasize that, in order for prosecutorial jurisdiction to lie in New York County, it is that county—and not the City generally—that must suffer a particular effect as a result of defendants’ alleged conduct. The statutory requirement that the conduct have a materially harmful impact may thus be satisfied only by a “concrete and identifiable injury” (Steingut, 42 NY2d at 318) to either the county’s governmental processes (that is, the executive, legislative or judicial branch of government) or the welfare of the county’s community. Moreover, to be materially harmful, the impact must be more than minor or incidental, and the conduct must harm “the well being of the community as a whole,” not merely a particular individual (Fea, 47 NY2d at 77). In addition, because the jurisdiction of the county seeking to prosecute must be established before the grand jury, the type of injury or offense contemplated by the particular effect statute must “be perceptible and of the character and type which can be demonstrated by proof before a Grand Jury” (Steingut, 42 NY2d at 317). Because particular effect jurisdiction is to be applied only in “limited circumstances” (Fea, 47 NY2d at 76), it has been rarely invoked.

[I] There is no dispute that defendants’ conduct, if true, had a materially harmful impact on the governmental processes or community welfare of New York City as a whole. By underreporting income on their New York City tax returns, defendants deprived the City of revenue that would otherwise have been available to meet its financial obligations and fund its governmental operations. Such a loss of revenue, which could lead to cuts in city services or increases in taxes, clearly constitutes a perceptible injury to the City of New York. The question presented, however, is whether the evidence before the grand jury establishes a concrete and identifiable injury suffered specifically by New York County. We conclude that it does not.

The People’s theory of venue is based on New York County’s status as the “seat of City government,” and the resultant processing of city income tax revenue in that county. Under this theory, defendants’ alleged tax evasion has a particular effect on New York County because New York City taxes are processed and remitted to the City through the Transitional Finance Authority, which is located in New York County,3 and through city bank accounts also located there. Further, these accounts are controlled by the New York City Commissioner of Finance, whose office is located in New York County, as is the Department of Finance’s Bureau of Treasury, which oversees the collection and management of the City’s tax revenue.

We conclude, however, that—in a prosecution whose gravamen is the deprivation of revenue from New York City—the location of city agencies and bank accounts is alone insufficient to establish a particular effect on the county in which they happen to be located.

II.

In Steingut, the defendants were indicted for corrupt use of position or authority (see former Election Law § 448 [1], [3]), based on a meeting held in Manhattan at which defendants allegedly conspired to corrupt an election to be held in Kings County for city councilmember-at-large. Although Kings County was in some measure affected by this criminal conduct, we held that the mere fact that the allegedly tainted election was to take place in Brooklyn was insufficient to establish particular effect jurisdiction in Kings County. As is readily apparent, the conspiracy to corrupt the election in Steingut bore a closer relationship to Kings County, where the election was to take place, than the false filing here bears to New York County.

As we explained in Steingut, “If the injured forum jurisdictional statute were to be triggered by the amorphous fact that the voters of the county would be called upon to vote in an election allegedly tainted by criminal activity localized in a single county, then if the election was one for a State-wide office any county within the State would be able to assert jurisdiction to indict and prosecute. This is clearly not the intent of the statute” (42 NY2d at 317).

The same concerns exist in the case before us, where the facts proffered to establish particular effect are even more amorphous than those held insufficient in Steingut. Permitting New York County to exercise particular effect jurisdiction over an alleged underreporting of income on tax returns based solely on the “processing” of New York City tax revenues in Manhattan would effectively grant the New York County District Attorney jurisdiction throughout New York City to prosecute any income tax or other offense that arguably affects city revenue or expenditures.4 Such jurisdiction would include prosecution of a Bronx toll taker who embezzles funds, or of a person who steals from a city agency in Kings County or vandalizes city property in Queens or Richmond.

Moreover, under the People’s theory, the Albany County District Attorney could prosecute any similar crime against the State, no matter where it occurred, including, for example, a Buffalo resident who steals from the till at a local Department of Motor Vehicles office or a driver who evades a toll on Long Island. These scenarios would constitute a vast expansion of the “limited circumstances” in which protective jurisdiction is to be applied (Fea, 47 NY2d at 76).

Rather, such “limited circumstances” have typically involved situations in which the injury to the prosecuting county is more particular and readily identifiable. If, for example, a person commits criminal mischief by maliciously blowing up a dam in Putnam County near the Westchester County line, thus flooding some Westchester territory—a result the individual either intends or knows is likely to occur—jurisdiction of the crime will properly lie in Westchester as well as in Putnam (see Stein-gut, 42 NY2d at 317; Preiser, Practice Commentaries, McKinney’s Cons Laws of NY, Book 11A, CPL 20.40, at 133).

Other examples of perceptible, materially harmful impacts on counties where the offensive conduct has not occurred include the failure of a temporarily released prisoner to return to the county of confinement (see People v Scannelli, 49 AD2d 648 [3d Dept 1975]); the violation of an order of protection issued in a particular county, even if the conduct violating the order occurred elsewhere (see People v Ortega, 152 Misc 2d 84 [Grim Ct, NY County 1991]); or “an attempt in county B to bribe an executive officer of county A to effectuate a decision favorable to the offeror’s interests in county B,” because such an attempt, if accomplished, “would have a perceptible detrimental impact upon the governmental integrity of county A” (Fea, 47 NY2d at 77).

In general, then, particular effect jurisdiction will be sustained when, for example, a defendant’s out-of-county conduct has interfered with the county’s courts or administration of justice; has exposed a large number of county residents to a specific harm; has caused a physical intrusion upon the county; or has involved the theft of funds from the county itself. But where, as here, the only nexus between the prosecuting county and the harmed political subdivision is the location of offices and accounts of the subdivision within the county, the statutory requirements have not been satisfied and the asserted impact is “amorphous at best” (Fea, 47 NY2d at 77).

Indeed, the People’s theory would permit the type of broad geographical jurisdiction specifically rejected when the statute was enacted. The statutory definition of “particular effect” was added to the original bill after “District Attorneys complained that the proposed statute gave all counties jurisdiction of all crimes and they gave, as an example, that under it any robbery or burglary of a bank in one county would cause an effect on depositors in many counties and the crime would be committed with intent and knowledge that it would have such effect” (Matter of Steingut v Gold, 54 AD2d 481, 487 [2d Dept 1976], affd 42 NY2d 311 [1977]). Plainly, CPL 20.40 (2) (c) requires a harm to the prosecuting county, not a harm felt by a city-wide governmental agency that happens to have an office in the county.

That the instant prosecution arises from a violation of Penal Law § 175.35 does not change this result. True, we explained in Fea that “[extraterritorial jurisdiction is to be applied only in those limited circumstances where the out-of-jurisdiction conduct is violative of a statute intended to protect the integrity of the governmental processes or is harmful to the community as a whole” (47 NY2d at 76-77 [citations omitted]). And Penal Law § 175.35 provides that “[a] person is guilty of offering a false instrument for filing in the first degree when, knowing that a written instrument contains a false statement or false information, and with intent to defraud the state or any political subdivision, public authority or public benefit corporation of the state, he [or she] offers or presents it to a public office, public servant, public authority or public benefit corporation with the knowledge or belief that it will be filed with, registered or recorded in or otherwise become a part of the records of such public office, public servant, public authority or public benefit corporation.” Clearly, inasmuch as it criminalizes frauds perpetrated on the State or its political subdivisions, this statute is intended to protect the integrity of governmental processes.

But that truism neither answers the question nor alters the analysis with respect to which political subdivision is defrauded or affected. While it is beyond dispute that defendants’ alleged conduct materially harmed the government of New York City, nothing in Fea, or in Penal Law § 175.35, abolishes the mandate of CPL 20.40 (2) (c) and 20.10 (4) that the particular effect in this case be not on the governmental processes of New York City as a whole, but on those of New York County. The evidence proffered here is insufficient to establish that the harm suffered by the City was in any meaningful way peculiar to New York County. The People have identified no New York County government agency, employee or process that is connected in any way to New York City income tax collection, nor have they identified any particular harm to the welfare of New York County or its residents. Rather, all five boroughs and their residents and governments were equally affected by the City’s loss of funds and the resultant risk of service cuts or tax increases, and the ministerial act of processing tax revenue cannot alone create a jurisdictional nexus.

Nor is the evidence here sufficient to establish the second statutory requirement for injured forum jurisdiction—that the conduct was performed with intent that it would, or with knowledge that it was likely to, have a particular effect in New York County. We disagree with the Appellate Division that it would have been reasonable for the grand jury to presume that defendants, who neither executed the subject tax returns in New York County nor mailed them there, had knowledge or intent that their Queens County scheme to defraud was likely to have a particular harmful effect on New York County (as opposed to New York City), or, specifically, that their false tax returns were likely to be processed in New York County offices and banks. Most citizens would have no awareness of this circumstance, or of where the City banks. Rather, defendants likely filed their tax returns only with the knowledge and intent that material harm would befall the City or the State in general by their failure to remit the taxes owed.

We note that New York City is unique among municipalities of the State in that it is larger than any of the counties it comprises. Elsewhere, cities, towns and villages exist wholly within single counties, which have jurisdiction under the statute to prosecute crimes having a particular effect on any municipality contained within them. Of course, historically and constitutionally, counties prosecute, not cities (see NY Const, art XIII, § 13; see also County Law § 700). The People assert that this unique situation creates an anomaly whereby the City may be deprived of its ability to prosecute within its borders certain crimes, of which it is undeniably the victim, involving depletion of its coffers.

That fear is unwarranted. First, particular effect jurisdiction is an alternative ground for venue that is generally invoked only when jurisdiction does not he on some other basis—such as the far more common scenario in which evidence exists that conduct establishing an element of the offense has occurred within one (or more) of the five counties of the City (see CPL 20.40 [1] [a]). In that event, which would certainly include all larcenies by physical taking of, and all damage to, city property, the county or counties where the conduct occurred would have jurisdiction to prosecute. Second, even in cases involving false filing of income tax returns, in which city taxes—like state taxes—will have been mailed to Albany,5 jurisdiction will lie in any county where the defendant executed or mailed the return. In any event, whether New York City’s situation is unique or anomalous, any perceived gap must be filled by the Legislature. We hold only that, under CPL 20.40 (2) (c), New York County may not assert jurisdiction over all crimes affecting the City on the sole basis that certain city agencies transact their business in offices located in Manhattan. Of course, nothing in our decision today prevents defendants from being prosecuted for their alleged false filings in any county—including another county within New York City—in which venue properly lies (see CPL 40.30; Steingut, 54 AD2d at 485 n 4).6

III.

Finally, we reject defendants’ contention that the indictment was facially insufficient for failure to specify the particular effect charged.7 It is true that in Steingut, this Court noted that “the nebulous nature of the impact claimed by the prosecutor . . . [was] best illustrated by the fact that the indictment itself [did] not even allege the effect which the purported crime would have on Kings County. Rather in the most conclusory fashion, the indictment simply state[d] ‘the defendants’ conduct had and was likely to have a particular effect on Kings County’ ” (42 NY2d at 318). The Court concluded that “[c]ertainly the invoking of the extraordinary injured forum jurisdictional statute requires the specification of a more concrete and identifiable injury” (id.). Nevertheless, although the indictment here, too, merely asserted without specificity that the charged conduct “had and was likely to have a particular effect upon the County of New York, and was performed with intent that it would and with knowledge that it was likely to have such a particular effect herein,” the bill of particulars provided by the People set forth in detail both the prosecution’s theory of venue and specific facts in support of their contention (which we reject) that there had been a particular effect on New York County. We thus agree with the Appellate Division that the bill of particulars, in combination with the indictment, sufficiently put defendants on notice of the accusations against them and enabled them to prepare a defense (see People v Iannone, 45 NY2d 589, 597-598 [1978]; People v Grega, 72 NY2d 489, 498 [1988]; People v Fitzgerald, 45 NY2d 574, 579-580 [1978]).8

Accordingly, the judgment of the Appellate Division should be reversed, without costs, the petition granted, and respondents prohibited from continuing with the prosecution of counts 26 through 30 of the subject New York County indictment.

Read, J. (dissenting).

1 “Particular effect” jurisdiction is also known as “injured forum” or “protective” jurisdiction (see People v Fea, 47 NY2d 70, 75-77 [1979]; Preiser, Practice Commentaries, McKinney’s Cons Laws of NY, Book 11 A, CPL 20.10, at 110).

2 Prohibition properly lies to address a claim that a court is acting in excess of its geographical jurisdiction (see Matter of Steingut v Gold, 42 NY2d 311, 316 [1977]).

3 City taxpayers file their city and state tax returns with the State Commissioner of Taxation and Finance in Albany (see Tax Law §§ 1312, 652 [a]; 20 NYCRR 152.12). The funds are then remitted to the State Comptroller, also in Albany, who forwards the New York City personal income tax portion of that revenue to the Bond Trustee of the New York City Transitional Finance Authority (TFA), a state public benefit corporation (see Public Authorities Law § 2799-aa et seq.), who eventually remits any remaining funds not used to pay TFA’s bond obligations and operating expenses to the New York City Commissioner of Finance (see Tax Law § 1313).

4 If the Transitional Finance Authority were to move uptown to the Bronx, or relocate to another county, jurisdiction for all tax offenses would *36presumably follow it there, despite the incidental, tenuous, fortuitous and likely unintended effect of the offense on that county.

5 We note that city sales tax returns, by contrast, are filed not in Albany, but in New York County. As the People thus concede, “[t]he only anomaly is City income tax.”

6 Contrary to the contention of the dissent, we do not suggest that venue over an offense may properly lie only in a single county, or that particular effect jurisdiction requires a “unique effect” on the county asserting jurisdiction (dissenting op at 42). Multiple counties may certainly have jurisdiction over a given offense on a variety of theories, including particular effect, but only if the evidence establishes the jurisdictional theory proffered by the People.

7 Each count of an indictment must contain a factual statement which, “without allegations of an evidentiary nature . . . asserts facts supporting every element of the offense charged and the . . . defendants’ commission thereof with sufficient precision to clearly apprise the . . . defendants of the conduct which is the subject of the accusation” (CPL 200.50 [7] [a]).

8 In any event, prohibition does not he with respect to defendants’ challenge to the facial sufficiency of the indictment, in that an insufficiency in the factual allegations of an indictment is not a jurisdictional defect (see Iannone, 45 NY2d at 600-601; People v D’Angelo, 98 NY2d 733, 734-735 [2002]), and because an adequate remedy at law is available through direct appeal (see Matter of State of New York v King, 36 NY2d 59, 62 [1975]).