People v. Demarco

Appellate Division of the Supreme Court of New York

People v. Demarco

167 A.D.2d 640, 562 N.Y.S.2d 863, 1990 N.Y. App. Div. LEXIS 13277

Appellate Division of the Supreme Court of the State of New York·Decided November 8, 1990·Published·Cited by 1 cases

Opinion

Appeal from a judgment of the County Court of Broome County (Mathews, J.), rendered October 20, 1989, convicting defendant upon his plea of guilty of the crime of attempted forgery in the second degree.

We reject defendant’s contention that his prosecution for forgery was barred by the double jeopardy provisions of CPL 40.10 and 40.40. Although the two crimes (burglary and forgery) could be said to have arisen out of one criminal transaction (CPL 40.10 [2]), they were comprised of substantially different elements and were still separate crimes (see, CPL 40.20 [2] [a]; People v Hopkins, 95 AD2d 870). Additionally, the People established that at the time of the previous prosecution for burglary, they did not possess legally sufficient evidence to support a conviction for forgery against defendant (CPL 40.40 [2]; see. People v Lindsly, 99 AD2d 99). Therefore, separate prosecutions were permissible and County Court’s refusal to dismiss the forgery indictment was proper.

Judgment affirmed. Kane, J. P., Casey, Mikoll, Yesawich, Jr., and Mercure, JJ., concur.

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Appeal from a judgment of the County Court of Broome County (Mathews, J.), rendered October 20, 1989, convicting defendant upon his plea of guilty of the crime of attempted forgery in the second degree.

We reject defendant’s contention that his prosecution for forgery was barred by the double jeopardy provisions of CPL 40.10 and 40.40. Although the two crimes (burglary and forgery) could be said to have arisen out of one criminal transaction (CPL 40.10 [2]), they were comprised of substantially different elements and were still separate crimes (see, CPL 40.20 [2] [a]; People v Hopkins, 95 AD2d 870). Additionally, the People established that at the time of the previous prosecution for burglary, they did not possess legally sufficient evidence to support a conviction for forgery against defendant (CPL 40.40 [2]; see. People v Lindsly, 99 AD2d 99). Therefore, separate prosecutions were permissible and County Court’s refusal to dismiss the forgery indictment was proper.

Judgment affirmed. Kane, J. P., Casey, Mikoll, Yesawich, Jr., and Mercure, JJ., concur.

People v. Demarco, 167 A.D.2d 640, 562 N.Y.S.2d 863, 1990 N.Y. App. Div. LEXIS 13277 (N.Y. Ct. App. 1990).

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