Relates to the prosecution of separate offenses based on the same criminal act

BILL NUMBER:S5776

Title of bill

An act to amend the criminal procedure law, in relation to the prosecution of separate offenses based upon the same criminal act

Purpose

This bill closes a loophole in the statutory "double jeopardy" provisions of CPL 40.20 that currently operate to bar a prosecution for state and New York City income tax related crimes where the defendant was previously prosecuted in federal court for federal income tax offenses based on the "same act or criminal transaction."

Summary of provisions

Section one adds a new paragraph (i) to subdivision two of section 40.20 of the Criminal Procedure Law to create an additional exception to the existing bar on separate prosecutions "based on the same act or criminal transaction" in certain cases where the subsequent state prosecution is for a state or New York City income tax-related crime and the previous prosecution was for a federal income tax-related offense.

Section two establishes an effective date of 90 days.

Existing law

Subject to certain enumerated exceptions, CPL 40.20(2) currently prohibits separate prosecutions for two offenses "based on the same act or criminal transaction."

Justification

During the investigation into alleged tax crimes on the part of Leona Helmsley, federal and state prosecutors realized that they were both looking into similar fact patterns; They created a joint investigation, while maintaining separate cases against federal and state violations, respectful of their jurisdiction. After the federal criminal case went to court, the State presented its case. Despite the fact that the cases were distinct and the criminal statutes involved were federal in one case and state in the other, the Appellate Division affirmed the trial court's dismissal of the state charges on the ground that they were based on the "same criminal transaction" as the federal tax charges, that separate prosecutions were therefore barred under CPL 40.20(2) and that none of the existing exceptions to the bar on separate prosecutions applied. See, People v. Helmsley, 170 A.D.2d 209 (1991).

It makes no sense to give an individual a free pass for tax crimes committed against the people of the State of New York owing to a concurrent investigation and prosecution at the federal level for violations of federal tax laws. This legislation seeks to close this loophole created by state statutory and case law.

Prior legislative history

None.

Fiscal implications

This legislation is expected to result in increased revenue to the State and New York City by enhancing prosecutors' ability to pursue and criminally prosecute tax fraud and related state and New York City income tax-related offenses.

Effective date

This act shall take effect 90 days after it shall have become a law.