Supreme Court, Bronx County, February 21, 2018

Michael Marinaccio for defendant.

Darcel D. Clark, District Attorney (Vladimir Kocheulov and Mary Jo Blanchard of counsel), for plaintiff.

After inspecting the grand jury minutes, the court finds that the evidence before the grand jury was legally sufficient in all respects to establish each count and that the instructions to the grand jury were proper. Defendant's motion to release the grand jury minutes is denied since release of the grand jury minutes is not necessary to assist the court in determining defendant's motion, and, in any event, any benefit to such release at this juncture in the proceedings is outweighed by the need to preserve grand jury secrecy. (See CPL 210.30 [3]; 190.25 [4] [a].)

For the following reasons, defendant's motion to dismiss the charges against him on the ground that the prosecution of these charges is barred by the constitutional and statutory proscriptions against double jeopardy is denied.

On July 18, 2016, an indictment was filed by the grand jury of Bronx County charging defendant and five others with criminal sale of a firearm in the first degree, criminal possession of a firearm, conspiracy in the fourth degree and related charges. The evidence presented to the grand jury established that, on various occasions between January 2016 and May 2016, defendant purchased 25 firearms in Pennsylvania that were transported to the Bronx by a coconspirator and sold to an undercover police officer by other coconspirators.

On June 21, 2016, an indictment was filed in the United States District Court for the Middle District of Pennsylvania, charging solely defendant with five counts of knowingly making a false and fictitious statement in the acquisition of a firearm in violation of 18 USC §§ 922 (a) (6) and 924 (a) (2). These counts charged defendant with making false statements{**58 Misc 3d at 923} when he [*2]purchased 14 of the guns that were sold to the undercover in the Bronx and are the subject of 31 of the 53 counts defendant is charged with in the instant Bronx indictment.^[FN1] On December 14, 2016, defendant pleaded guilty to all five counts charged in the federal indictment, and, on September 14, 2017, defendant was sentenced to five concurrent terms of 32 months' incarceration.^[FN2]

Initially, defendant's constitutional double jeopardy claim that the instant prosecution is barred by the prior federal prosecution is without merit. First, here, the Blockburger test (Blockburger v United States, 284 US 299, 304 [1932]) to determine whether a subsequent prosecution violates the Fifth or Fourteenth Amendment double jeopardy prohibition for sequential prosecutions for the same offense is satisfied because each of the offenses charged in the state indictment contains an element which the federal charges do not. Second, under the dual sovereignties doctrine, the instant prosecution is not barred because successive federal and state prosecutions, even when based upon the same transaction or conduct, do not offend the Double Jeopardy Clause. (See Bartkus v Illinois, 359 US 121 [1959]; Matter of Polito v Walsh, 8 NY3d 683 [2007].)

Similarly, defendant's statutory double jeopardy claim is unavailing. Initially, with respect to the 11 guns that are the basis for charges solely in the state indictment, CPL 40.20 (2), which bars successive prosecutions for two offenses based upon the same act or criminal transaction, is inapplicable.

With respect to the 14 guns that are the basis for charges contained in both the state and federal indictments, two exceptions to New York's statutory proscription against successive prosecutions for two offenses based upon the same act or criminal transaction, codified in CPL 40.20 (2) (a) and (b), are applicable.{**58 Misc 3d at 924} CPL 40.20 (2) states that 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.

Here, the state and federal offenses charged have substantially different elements, the acts establishing the federal offenses are clearly distinguishable from the acts establishing the state offenses, and the statutory provisions defining the state and federal offenses are designed to prevent very different kinds of harm or evil. Thus, there exists no statutory double jeopardy bar [*3]to the instant state prosecution by virtue of defendant's federal plea. (See CPL 40.20 [2] [a], [b]; People v Bryant, 92 NY2d 216 [1998] [sequential state prosecution for attempted murder of a police officer and criminal possession of a defaced firearm which were based on the same criminal transaction underlying the defendant's federal conviction for bank robbery and using and possessing firearms during a crime of violence not barred as both prongs of CPL 40.20 (2) (b) satisfied]; People v Biear, 119 AD3d 599 [2d Dept 2014] [state prosecution for falsely reporting an incident not barred by federal prosecution for mail fraud as both crimes have different elements and purposes and thus CPL 40.20 (2) (b) satisfied]; People v Mabry, 101 AD2d 961 [3d Dept 1984] [state prosecution for forgery and criminal possession of a forged instrument not barred by federal conviction for theft of mail and mail fraud as crimes have different elements and acts and therefore CPL 40.20 (2) (a) satisfied]; People v Austin, 14 Misc 3d 295 [Sup Ct, NY County 2006, Uviller, J.] [state prosecution for attempted robbery in the first degree not barred by federal conviction for weapons possession where same weapon used in robbery as state and federal offenses contain different elements and address different harms or evils and thus both CPL 40.20 (2) (a) and (b) applied].)

Equally unavailing is defendant's double jeopardy claim that if he is convicted on the instant charges he would be punished twice for the same offense. As discussed above, under both the Blockburger test and dual sovereignties doctrine, there is no constitutional basis to bar the state prosecution. However, that{**58 Misc 3d at 925} does not end the double jeopardy analysis. Because some of the state charges are based on the same weapons as the federal charges, and because defendant's federal sentence was enhanced based upon those weapons, in order to avoid running afoul of the double jeopardy multiple punishment bar, and due to the court's concern for fundamental fairness, the court will exercise its discretion and give defendant credit, if convicted, for the time he has served on the federal conviction. (See North Carolina v Pearce, 395 US 711, 718 [1969] [Double Jeopardy Clause's bar to multiple punishment for the same offense is violated when a defendant is not given credit for time served when sentence imposed upon a new conviction for the same offense].) Thus, if defendant is convicted, the court will run any sentence of incarceration on the instant charges concurrently to defendant's federal sentence.^[FN3] (See Penal Law § 70.25 [4], [2].)