OPINION OF THE COURT
Appellants have been indicted for enterprise corruption (Penal Law § 460.20 [1] [a]), a class B felony, based in essential part on their commission of numerous predicate offenses.1 There was proof before the grand jury that three of them—Douglas Latta, Lyndon Roach and Angela Perez—repeatedly purchased stolen
Appellants’ conduct, the People claim, was part of a larger enterprise to traffic in stolen credit card information. To make out the corrupt enterprise, the People adduced before the grand jury proof that Eastern European vendors of stolen credit card data engaged in Internet transactions with buyers in New York. There was also proof that, in consummating these transactions, buyers and sellers sometimes availed themselves of services offered by Western Express through its publicly accessible Internet websites. While Western Express’s menu of services—i.e., check cashing, mail receiving, issuing money orders, digital currency exchange, and Russian/English translation—was superficially unremarkable, the services themselves being legal and admitting of legitimate utility in the conduct of international transactions, there was evidence that some Western Express customers, among them defendants Latta, Roach and Perez, used the company’s services for “carding” purposes, i.e., to traffic in stolen credit card information.
The People, in presenting the matter to the grand jury, dwelt principally on the carders’ use of Western Express’s digital currency exchange service. Western Express, having purchased large sums of the unregulated Internet currencies EGold and Webmoney, was an authorized vendor of those forms of tender. For a commission of between two and five percent, the company would transfer into a customer Internet account held in an assumed name digital currency purchased from it by the customer with US dollars. The digital currency could then be, and on occasion was, transferred to pay for stolen credit card information, after which the vendor would sell the digital currency received in payment back to Western Express for its value in another digital currency or US dollars, with Western Express taking an additional commission. This transactional pattern recommended itself for money laundering purposes by reason of the circumstance that E-currency was not government regulated and that international transactions using it went largely unscrutinized.
There was evidence that Western Express was not a neutral observer of this use of its services; its employees offered advice on how to structure transactions to avoid detection and defendant
Supreme Court granted appellants’ respective motions to dismiss the subject indictment’s enterprise corruption count upon the ground that the proof before the grand jury, even when viewed most favorably to the People, did not make out the existence of a “criminal enterprise.” As is here relevant, guilt of enterprise corruption under New York’s Organized Crime Control Act (OCCA) (Penal Law § 460.00 et seq.) requires proof that the accused “when, having knowledge of the existence of a criminal enterprise and the nature of its activities, and being employed by or associated with such enterprise . . . intentionally conducts or participates in the affairs of [the] enterprise by participating in a pattern of criminal activity” (Penal Law § 460.20 [1] [a]). For OCCA purposes a “criminal enterprise” is “a group of persons sharing a common purpose of engaging in criminal conduct, associated in an ascertainable structure distinct from a pattern of criminal activity, and with a continuity of existence, structure and criminal purpose beyond the scope of individual criminal incidents” (Penal Law § 460.10 [3]). In dismissing the enterprise corruption count, Supreme Court focused upon the absence of proof of an “ascertainable structure distinct from a pattern of criminal activity”:
“Here, the People have failed to even articulate— much less adduce evidence proving—any system of authority or hierarchy in which the defendants participated . . . [W]hat the People allege are a series of arms-length business transactions—admittedly extensive and, if the People’s allegations are true, illegal—conducted by a variety of organizations and individuals, each operating independently and with no overarching structure or system of authority. In essence, the People have described an illegal industry rather than a corrupt enterprise,Page 657the criminal parallel of a typical legitimate industry consisting of producers, wholesalers, distributors, retail outlets, and credit suppliers, each of [whom] has a unique but independent role in the industry.”
In reversing and reinstating the enterprise corruption count (85 AD3d 1 [1st Dept 2011]), the Appellate Division, while acknowledging that there was no evidence of a traditionally structured, i.e., hierarchical, entity, theorized that Vassilenko had used Western Express to create a structured enterprise the purpose of which was to “actively encourage more and larger transactions by its participants on an ongoing basis” (id. at 14). The evidence, said the court, permitted the inference that defendants knowingly played roles in the enterprise even though, for the most part, they had no personal interaction (id.). Two Justices dissented, expressing the view that the requisite “ascertainable structure” to the alleged enterprise had not been demonstrated, even to the bare bones extent necessary to sustain the enterprise corruption count to trial. The dissenters found compelling the absence of “evidence of any collective decision-making or coordination with respect to the purported enterprise’s activities or of any overarching structure of authority or hierarchy in which defendants participated” (id. at 19). One of the dissenting Justices granted appellants’ separate applications for permission to appeal to this Court (2011 NY Slip Op 80670[U] [2011]; 2011 NY Slip Op 80671[U] [2011]; 2011 NY Slip Op 83743[U] [2011]; 2011 NY Slip Op 83744[U] [2011]). We now reverse and reinstate the orders of Supreme Court dismissing the enterprise corruption count as against appellants.
New York’s OCCA was enacted in 1986 to afford state prosecutors a means of exacting heightened penalties for criminal activity referable to or generative of structured criminal enterprises (see Penal Law § 460.00). Those enterprises were understood to present a distinct evil by reason of their unique capacity to plan and carry out sophisticated crimes on an ongoing basis while insulating their leadership from detection and prosecution (see id.; People v Besser, 96 NY2d 136, 142 [2001]). The Federal Racketeer Influenced and Corrupt Organizations Act (RICO) (18 USC § 1961 et seq.) had, of course, for some time enabled federal prosecutors to prosecute enterprise corruption as such, but until the enactment of the OCCA there was no New York State analogue.
The common challenge posed both federal and state legislators in penalizing enterprise corruption as a separate crime was
There is no question that the People presented as to each appellant considerable evidence of a pattern of illegal activity. The issue to be decided is whether they also presented evidence from which a petit jury could reasonably infer (see People v Bello, 92 NY2d 523, 525 [1998]) that that activity bore the
The People urge that a criminal enterprise need not be hierarchical to be structured and that structure may be inferred from patterns of criminal conduct. While both of these propositions may be true in theory, it remains that under the OCCA a “common purpose” is required and the structure of a criminal enterprise must be “ascertainable.” Here these conditions are not met. The presented evidence was indicative of no more than the manner in which international transactions in stolen credit card data were commonly conducted, with or without the use of Western Express’s services;5 it did not support the further inference of a distinct, beneficially related criminal enterprise.
It is true that in Boyle the RICO requirement of enterprise structure was deemed satisfied simply by proof of the underlying pattern of criminal activity and the inference of structure that that proof would bear (see 556 US at 947-948). The OCCA, unlike RICO, however, specifically demands that the structure be distinct from the predicate illicit pattern, and not surprisingly there are no New York cases in which the requisite
Doubtless, the Internet may be used to facilitate crime, and we do not exclude the possibility that a website singularly preoccupied with processing a screened clientele’s illicit transactions could be understood as elemental to and reflective of a criminal enterprise. But crimes committed by resort to cyber means are not invariably referable to distinct nefarious enterprises, and the websites here involved do not permit the inference of an overarching criminal purpose or organization; while Western Express may have sought to make its websites attractive to carders, the sites themselves presented simply as publicly accessible loci for the conduct of business, the legality of which turned in the end upon the independent agendas of individual users. To the extent that the usage was for illegal purposes, it reflected the existence of a prevalent black market but did not reasonably justify the additional inference necessary to the viability of the proposed enterprise corruption prosecution, that there was within that market an enduring structurally distinct symbiotically related criminal entity with which appellants were purposefully associated.
Accordingly, the order of the Appellate Division, insofar as appealed from, should be reversed and the orders of Supreme Court, New York County, dismissing the enterprise corruption count of the indictment as against appellants, reinstated.
1.
These included scheme to defraud, conspiracy, grand larceny, money laundering, possession of stolen property, and falsifying business records. No issue is before us respecting the sufficiency of the counts charging these offenses; this appeal concerns no more than the sufficiency of the evidence offered in support of the enterprise corruption count.
2.
Vassilenko estimated that 5% of his business was from carding transactions. The People contend that the actual percentage was much higher.
3.
As is here relevant the legislature in enacting the OCCA was careful to explain that
“[t]he organized crime control act is a statute of comparable purpose [to that of RICO] but tempered by reasonable limitations on its applicability, and by due regard for the rights of innocent persons. Because of its more rigorous definitions, this act will not apply to some situations encompassed within comparable statutes in other jurisdictions” (Penal Law § 460.00 [emphasis supplied]).
4.
We note that, while the Appellate Division offered that the common purpose of the purported enterprise was to encourage more and larger criminal transactions, there was no proof that Western Express’s customers availed themselves of the company’s services with any objective other than the expedient conduct of their own individual transactions.
5.
There are numerous providers of such services and, in fact, after Western Express’s demise, its carder clientele simply switched to different providers of comparable services.