A resident of Warren County [Petitioner] had served as a former treasurer of an Emergency Squad [EMS] that essentially operated in a nearby county. Petitioner was indicted by a Warren County grand jury for alleged grand larceny, petit larceny and falsifying business records for his alleged theft of money from EMS from bank accounts at locations in another county. Ultimately a trial was commenced in Warren County with respect three counts of grand larceny in the fourth degree and one count of falsifying business records in the first degree.
In response to Petitioner's supplemental omnibus motion/motion to reargue and reconsider, seeking, among other things, a court order dismissing the remaining counts of the indictment for lack of jurisdiction, Warren County Court held that Warren County was the proper geographical jurisdiction for the retrial of the four remaining counts. Warren County Court subsequently dismissed the count of falsifying business records in the first degree for insufficient evidence.
Petitioner commenced a CPLR Article 78 proceeding in the Appellate Division seeking a writ of prohibition*to enjoin the prosecution of the three grand larceny counts in Warren County. The Warren County Attorney [DA] contended, "prohibition does not properly lie as other remedies are available, and that 'particular effect jurisdiction'** was demonstrated by the negative impact of Petitioner's conduct on the availability of emergency medical care in Warren County."
The Appellate Division opined that for "particular effect jurisdiction" to attach in these circumstances, the DA was required to establish not only that Petitioner's alleged conduct had a materially harmful impact to the well-being of the Warren County community as a whole, but also that Petitioner intended his conduct to have such an impact, citing People v Fea, 47 NY2d 70.
Observing People v Ribowsky, 77 NY2d 284, noted the long-standing principle that "[a] defendant has the right at common law and under the State Constitution to be tried in the county where the crime was committed unless the Legislature has provided otherwise", the Appellate Division said that "The burden is on the People to prove by a preponderance of the evidence that the county where the crime is prosecuted is the proper venue because either the crime was committed there or one of the statutory exceptions is applicable".
Finding that the DA had offered no proof of such intent on the part of Petitioner and had failed to establish that Plaintiff's theft of money in the amount of $3,900 from EMS, a nongovernmental entity serving one town within Warren County, caused such a "materially harmful impact upon the governmental processes or community welfare" of Warren County to justify the extraordinary exercise of particular effect jurisdiction and granted Plaintiff's motion seeking the writ of prohibition.
* A writ of prohibition is a written order by a higher court to a lower court typically forbidding the lower court from taking further action in a case then pending before it.
** See §20.10(4) of the Criminal Procedures Law.
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