| Matter of Martinucci v Becker |
| 2008 NY Slip Op 03282 [50 AD3d 1293] |
| April 11, 2008 |
| Appellate Division, Third Department |
| In the Matter of Americo Martinucci, Petitioner, v Carl F. Becker,as Judge of the County Court of Delaware County, et al.,Respondents. |
—[*1] Richard D. Northrup Jr., District Attorney, Delhi, respondent pro se.
Kavanagh, J. Proceeding pursuant to CPLR article 78 (initiated in this Court pursuant toCPLR 506 [b] [1]) to prohibit respondents from trying petitioner in the County Court ofDelaware County on an indictment charging him with rape in the first degree (three counts),sexual abuse in the first degree (two counts) and endangering the welfare of a child.
During the summer of 2003, petitioner was alleged to have had sexual intercourse on threeseparate occasions with a 10-year-old girl. He was later charged by indictment in DelawareCounty with three counts of rape in the first degree, two counts of sexual abuse in the first degreeand endangering the welfare of a child. Because petitioner videotaped one of these sexualassaults, he was also charged by federal indictment with coercing and enticing a "minor. . . to engage in sexually explicit conduct for the purpose of producing visualdepictions of such conduct" (see 18 USC § 2251 [a]). On June 12, 2007, whileawaiting trial on the state charges, petitioner pleaded guilty to the one count contained in thefederal indictment entitled "Production of Child Pornography."[FN1] Before he could be sentenced, petitioner moved to dismiss the state [*2]indictment on the ground that any prosecution for charges containedin it was effectively barred by his guilty plea in federal court pursuant to the double jeopardyprovisions as set forth in CPL 40.20 (2).[FN2] Upon County Court's denial of this motion, petitioner commenced this CPLR article 78proceeding in the nature of prohibition seeking to bar his prosecution for the crimes set forth inthe state indictment.
Petitioner's contention that a trial in state court is barred by virtue of his guilty plea to the onecharge contained in the federal indictment is meritless.[FN3] Initially we note that, for double jeopardy to attach under CPL 40.20, it must be established thatboth prosecutions involve offenses committed either during the same criminal act or during asingle criminal transaction. Petitioner was only prosecuted federally for one of the three sexualassaults he is alleged to have perpetrated on this child; the other two that are alleged to have beencommitted at different times and places are separate and distinct criminal acts and are not part ofthe same criminal transaction (see People v Van Nostrand, 217 AD2d 800 [1995], lvdenied 87 NY2d 851 [1995]). For that reason, petitioner's prosecution in state court for thetwo sexual assaults not covered by the federal indictment does not have double jeopardyimplications and is not barred by application of the provisions of this statute.
For the sexual assault that was the subject of both indictments, state law permits such aprosecution—even if for the same act or criminal transaction—if "[e]ach of theoffenses as defined contains an element which is not an element of the other, and the statutoryprovisions defining such offenses are designed to prevent very different kinds of harm or evil"(CPL 40.20 [2] [b]). While both indictments charge crimes emanating from the alleged sexualassault of a minor, the elements which need to be proved for there to be a conviction are verydifferent. Under state law a prosecution for rape or sexual abuse requires that it be establishedthat the victim had been subjected to sexual intercourse or sexual contact. The federal crimecontains no such requirement; instead, under the federal statute, it must be proven that a minorwas enticed or coerced to engage in some form of "sexually explicit conduct for the purpose ofproducing any visual depiction of such conduct" (18 USC § 2251 [a]) and that materialsused to produce those images were secured through the use of interstate commerce. Whilepetitioner concedes that the statutory offenses in both indictments do indeed contain differentelements, he maintains that CPL 40.20 (2) (b) is implicated in this proceeding because bothstatutes as defined are designed [*3]to prevent the same kind ofharm or evil—the carnal abuse of children.
The federal statute (18 USC § 2251 [a]) is designed to address "the problem of sexualexploitation of children by the use of children as performers in the production of films andphotographs depicting sexually explicit conduct" (HR Rep 536, 98th Cong, 1st Sess, at 4,reprinted in 1984 US Code Cong & Admin News, at 495). Its stated purpose is to criminalizeconduct which "employs, uses, persuades, induces, entices, or coerces any minor to engage in. . . any sexually explicit conduct for the purpose of producing any visualdepiction of such conduct" (18 USC § 2251 [a] [emphasis added]). Unlike a stateprosecution for rape or sexual abuse, the focus of a prosecution for producing child pornographyis not simply on the explicit sexual conduct that a minor is made to perform, but also on thevisual recording of that conduct and the impact the dissemination of those images will have onthe community. The evil to be prevented is not simply the explicit sexual conduct that the minorhad been made to perform, but the psychological impact that images of such recorded conductwill have on some members of the community. The state law at issue here, on the other hand, isdirected toward preventing the actual sexual assault. As such, each statute as worded, whileundoubtedly concerned with the exploitation of children, seeks to address a different kind ofharm or evil involved in such exploitation (see People v Bryant, 92 NY2d 216, 229[1998]).
Nor do we agree with petitioner that Matter of Northrup v Relin (197 AD2d 228[1994], lv denied 84 NY2d 803 [1994]) requires a different result. In that case, thefederal and state charges were mirror images of each other in that each sought to not only punishthe petitioner for the sexual assault of his young children, but also his use of them to producerecorded sexually explicit images. Unlike the instant proceeding, the criminal acts that were thesubject of each prosecution in Matter of Northrup v Relin (supra) were the same,and the harm and evil sought to be addressed was the petitioner's sexual assault of these smallchildren and his use of them in these recorded productions.
For all of the reasons as set forth, we find that petitioner's claims in this petition are withoutmerit and should be dismissed.[FN4]
Peters, J.P., Carpinello, Kane and Stein, JJ., concur. Adjudged that the petition is dismissed,without costs.
Footnote 1: On January 11, 2008, petitionerwas sentenced to a federal prison term of 25 years, plus 10 years of postrelease supervision.
Footnote 2: Petitioner makes no claim thathis constitutional right against double jeopardy has been violated by the prosecution of the statecharges.
Footnote 3: We disagree with the claim ofrespondent District Attorney that because petitioner has not exhausted his federal appeal, thisclaim is not ripe for adjudication. Petitioner's federal appeal has been by its terms limited to theextent of his sentence, and his guilty plea to the underlying charge renders the federal prosecutiona prior prosecution for double jeopardy purposes.
Footnote 4: Petitioner suggests that giventhe present state of his health, the sentence he received in federal court is in effect a life sentence,and a state prosecution, if successful, will have no practical impact upon him. We note that notonly has petitioner refused to waive his rights to appeal his federal sentence, but that one hasactually been undertaken and is presently pending.