S5776-2011 Actions

• Jun 21, 2011: SUBSTITUTED BY A8247A
• Jun 21, 2011: ORDERED TO THIRD READING CAL.1443
• Jun 15, 2011: REFERRED TO RULES

S5776-2011 Meetings

S5776-2011 Calendars

S5776-2011 Votes

S5776-2011 Memo

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.

S5776-2011 Text

 S T A T E   O F   N E W   Y O R K
 
 
                                         5776
 2011-2012 Regular Sessions
 I N  SENATE
 June 15, 2011
 
 Introduced  by  Sen.  GOLDEN  -- (at request of the Attorney General) -
 read twice and ordered printed, and when printed to  be  committed  to
 the Committee on Rules
 AN  ACT  to  amend the criminal procedure law, in relation to the prose
 cution of separate offenses based upon the same criminal act
 THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM
 BLY, DO ENACT AS FOLLOWS:

 

Section  1.  Subdivision  2 of section 40.20 of the criminal procedure
 law is amended by adding a new paragraph (i) to read as follows:

 (I) ONE OF THE OFFENSES CONSISTS OF A VIOLATION OF  18  U.S.C.    371,
 WHERE  THE OBJECT OF THE CONSPIRACY IS TO ATTEMPT IN ANY MANNER TO EVADE
 OR DEFEAT ANY FEDERAL INCOME TAX OR THE PAYMENT THEREOF, OR A  VIOLATION
 OF  26  U.S.C.  7201, 26 U.S.C. 7202, 26 U.S.C. 7203, 26 U.S.C. 7204, 26
 U.S.C. 7205, 26 U.S.C. 7206 OR 26 U.S.C. 7212(A), WHERE THE  PURPOSE  IS
 TO  EVADE  OR  DEFEAT ANY FEDERAL INCOME TAX OR THE PAYMENT THEREOF, AND
 THE OTHER OFFENSE IS COMMITTED FOR THE PURPOSE OF EVADING  OR  DEFEATING
 ANY NEW YORK STATE OR NEW YORK CITY INCOME TAXES AND IS DEFINED IN ARTI
 CLE ONE HUNDRED FIFTY-FIVE OF THE PENAL LAW, ARTICLE ONE HUNDRED SEVENTY
 OF  THE  PENAL  LAW,  ARTICLE ONE HUNDRED SEVENTY-FIVE OF THE PENAL LAW,
 ARTICLE THIRTY-SEVEN OF THE TAX LAW OR CHAPTER FORTY OF TITLE ELEVEN  OF
 THE ADMINISTRATIVE CODE OF THE CITY OF NEW YORK.
 

S  2.  This  act shall take effect on the ninetieth day after it shall
 have become a law and shall only apply  to  offenses  committed  on  and
 after such date.
 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
 [ ] is old law to be omitted.
 LBD11792-07-1

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