After
Nouel Alba was “indicted by the Grand Jury of Bronx County and charged with
scheme to defraud in the first degree [in violation of New York Penal Law §190.65(1)(a)] and identity theft in the second degree [in violation of New YorkPenal Law § 190.79(3)]”, she moved to dismiss both charges. People
v. Alba, 2014 WL 1328186 (New York Supreme Court – Bronx County 2014). She filed the motion to dismiss under NewYork Criminal Procedure Law § 255. People
v. Alba, supra.
The judge
who wrote the Supreme Court’s opinion addressed Alba’s motion to dismiss in the
order in which the charges appear in the indictment, i.e., he began with the
fraud charge and then took up the identity theft charge. People
v. Alba, supra. His first step in
analyzing the fraud charge was to define the crime:
Penal Law
§ 190.65(1)(a) provides that the crime of scheme to defraud in the first
degree is committed by a person who:
`engages in a scheme constituting a systematic ongoing course
of conduct with intent to defraud ten or more persons or to obtain property
from ten or more persons by false or fraudulent pretenses, representations or
promises, and so obtains property from one or more of such persons.’
People v. Alba, supra.
The judge
then explained that
[a]ccording to the evidence before the grand jury, [Alba]
posted a solicitation on Facebook in which she pretended to be the paternal
aunt of Noah Pozner, one of the victims of the Sandy Hook Elementary School
shooting in Newtown, Connecticut, and asked for money for the supposed purpose
of paying for his funeral and the funerals of other victims. In response, a
number of people sent [her] money via a PayPal account. [Alba] was arraigned on
the indictment on May 13, 2013.
People v. Alba, supra. You can read more about the charges and the
allegations against Alba in the news stories you can find here and here.
The judge
then notes that, as one of the stories cited above explains,
[i]n connection with a Federal investigation into her
conduct, [Alba] had previously been charged in the United States District Court
of Connecticut with making false statements, 18 U.S. Code § 1001. On June 6, 2013, she pled guilty not only to
that charge, but also to wire fraud, 18 U.S. Code § 1343, a charge which was
filed the day of her plea. She was subsequently sentenced to eight months
incarceration. Wire fraud is committed by a person who:
`having devised or intending to devise any scheme or artifice
to defraud, or for obtaining money or property by means of false or fraudulent
pretenses, representations, or promises, transmits or causes to be transmitted
by means of wire, radio, or television communication in interstate or foreign
commerce, any writings, signs, signals, pictures, or sounds for the purpose of
executing such scheme or artifice. . . ‘
18 U.S. Code § 1343.
People v. Alba, supra. He also
noted that
[i]n connection with her plea, [Alba]
admitted, inter alia, that, using Facebook, she had
misrepresented herself to be the aunt of a child killed in the Sandy Hook shooting,
solicited donations for a `funeral fund’ for her supposed nephew and other
shooting victims, and as a result, received donations that totaled less than
five thousand dollars, which she returned after potential victim-donors
discovered her misrepresentations.
People v. Alba, supra.
In her
motion to dismiss, Alba relied on New York Criminal Procedure Law § 40.20,
which provides as follows:
A person may not be separately prosecuted for two offenses
based upon the same act or criminal transaction unless: (a) The offenses as
defined have substantially different elements and the acts establishing one
offense are in the main clearly distinguishable from those establishing the
other; or (b) Each of the offenses as defined contains an element which is not
an element of the other, and the statutory provisions defining such offenses
are designed to prevent very different kinds of harm or evil. . . .
People v. Alba, supra. Like New
York, other U.S. states have similar statutes, the purpose of which is,
essentially, to address the same issue the Double Jeopardy Clause of the 5th
Amendment targets, i.e., repeated prosecution for the same crime.
The
prosecutors in this case “concede[d] that the scheme to defraud count and the
Federal wire fraud conviction are based on the same `criminal transaction’”, for the purposes of § 40.20. People
v. Alba, supra. But they claimed
Alba could “still be prosecuted for the State offense because the prosecution
falls within both of the exceptions contained in” New York Criminal Procedure
Law § 40.20(2).” People v. Alba, supra. The judge was not persuaded, noting that
“[n]either applies in this case.” People
v. Alba, supra.
He found,
first, that the offenses,
as defined do not, within the meaning § 40.20(2)(a), `have
substantially different elements,’ nor are `the acts establishing one offense .
. . in the main clearly distinguishable from those establishing the other.’
Considering the first of these two prongs, it is evident that
each crime has elements the other does not.
Scheme to defraud in the first degree requires that the defendant
actually `obtain[ ] property from one or more . . . persons,’ [New York] Penal
Law § 190.65(1)(a), while wire fraud does not. Wire fraud requires the
transmission of `any writings, signs, signals, pictures, or sounds” by use of
“wire, radio, or television communication in interstate or foreign commerce,’ 18
U.S. Code 1343, while scheme to defraud in the first degree does not. The
question is not, however, whether the offenses have any different
elements, but whether they have `substantially different elements.’ I find that
they do not.
People v. Alba, supra (emphasis in the original).
The judge
then explained that the “`scheme constituting a systematic ongoing course of
conduct’” required for scheme to defraud [under the New York statute] is
essentially the `scheme or artifice’ required for . . .wire fraud”. People
v. Alba, supra. He also pointed out
that the mens rea, or intent, required for carrying out a scheme to defraud
under New York law is “essentially the same as that required for wire fraud and
mail fraud, since the purpose of the `scheme or artifice’ required for those
two crimes must be to `obtain[ ] money or property by means of false or
fraudulent pretenses, representations, or promises.’” People v. Alba, supra (quoting 18 U.S. Code §§ 1341 & 1343).
He also
noted that the prosecution’s argument that the state and federal fraud crimes
were distinct, at least as applied to this case,
fails when considering the second prong of [New York
Criminal Procedure Law §] 240.20(2)(a), which requires that `the acts
establishing one offense [be] in the main clearly distinguishable from those
establishing the other.’
Here, the conduct constituting the Federal crime and that
constituting the State crime are, if not identical, certainly not `clearly
distinguishable’ from one another. Both are based on evidence that the
defendant fraudulently posed on Facebook as Noah Pozner's aunt, solicited
donations supposedly to pay for his funeral and that of other victims, and
thereby obtained money from unsuspecting contributors.
People v. Alba, supra.
The Court
therefore held that
[t]he conduct for which [Alba] is charged with scheme to
defraud in the first degree is, without question, reprehensible. Nevertheless,
because the exceptions set forth in subdivisions (a) and (b) of [New York
Criminal Procedure Law §] § 40.20(2) do not apply here, [Alba], having
been convicted of wire fraud based on the same criminal transaction, can no
longer be prosecuted for scheme to defraud in the first degree.
Accordingly,
count one of the indictment must be dismissed.
People v. Alba, supra.
The judge
then took up the remaining charge against Alba:
identity theft in the second degree People
v. Alba, supra. He began his
analysis by noting that
[i]n relevant part, [New York] Penal Law §
190.79(3) provides that this crime is committed by a person who `knowingly
and with intent to defraud assumes the identity of another person by presenting
himself or herself as that other person, . . . and thereby . . . commits or
attempts to commit a felony or acts as an accessory to the commission of a
felony.’
This indictment specifically alleges that [Alba] `assumed the
identity of an aunt of Noah Pozner’ and thereby committed the class E felony of
scheme to defraud in the first degree.
People v. Alba, supra.
He then
explained that
[a]s Justice Donnino has observed, `[t]he core of the basic
third-degree identity theft offense, a class A misdemeanor, parallels the crime
of criminal impersonation in the second degree.' William C. Donnino, Practice
Commentary, McKinney's Cons.Laws of N.Y., Book 39, Penal Law § 190.77.
Criminal Impersonation in the Second Degree, [New York] Penal
Law § 190.25(1), is committed by a person who `[i]mpersonates another and does
an act in such assumed character with intent to obtain a benefit or to injure
or defraud another.’ The [New York Supreme Court – Appellate Division] Second
Department has held that `in order to be found guilty of this [form of Criminal
Impersonation], the People must have established that [the defendant]
impersonated a real person.’ People v. Sadiq, 236 A.D.2d 638, 654
N.Y.S.2d 35 (1997). As one court has held, relying on Sadiq, `”in
requiring that a defendant prosecuted for identity theft have assumed the
identity of another person,” the legislature plainly contemplated criminal
conduct committed against an actual victim-that is, an innocent person whose
identity or information is actually stolen.’ People v. Debranche, 38
Misc.3d 872, 954 N.Y.S.2d 862 (New York City Criminal Court 2012).
People v. Alba, supra. (As this
news story explains, the U.S. Supreme Court reached the same conclusion in
analyzing the federal identity theft crime.)
The judge then found that
[t]he evidence before the grand jury
established that [Alba], although using her own name in perpetrating her fraud,
claimed to be Noah Pozner's paternal aunt. There was no evidence presented to
the grand jury that Noah Pozner had a paternal aunt, and it is uncontested that
he did not. As the People concede, because the person whom [she] purported to
be did not exist, count two must be dismissed.
People v. Alba, supra.
At least
one newspaper was not particularly happy with the court’s rulings, as this news story explains.
No comments:
Post a Comment