People v. MoscatielloPeople v. Moscatiello
OPINION OF THE COURT
The defendants are moving to dismiss the indictment and
The defendants are moving for inspection of the Grand Jury minutes and dismissal of the indictment. They are also moving, specifically for dismissal of count one (the enterprise corruption count) on various grounds, for severance, fоr suppression of eavesdropping evidence and for other relief.
This case arose from an investigation of the Carpenter’s Union. Much of the evidence wаs secured by use of an official of that union, one Melvin Eckhaus, who was caught taking a bribe and then agreed to cooperate with the District Attorney’s office. The Peоple contend that the defendant Louis Moscatiello, an official of Local 530 of the Operative Plasterers and Cement Masons International Association, thе defendant Benedetto "Benny” Schepis, an official of Local 17 of the Carpenter’s Union, and Eckhaus were a group of persons who engaged in a "criminal enterprise”. The People assert that Moscatiello would arrange or transmit bribes from contractors to Eckhaus to influence Eckhaus in his capacity as a union offiсial. Schepis is accused of assisting Moscatiello in this activity.
Count one charges the crime of enterprise corruption in violation of article 460 of the Penal Lаw. Article 460, part of the New York Organized Crime Control Act (OCCA), was inspired by the Federal Racketeer Influenced and Corrupt Organizations Act (RICO). (18 USC § 1961 et seq.; cf, Donnino, Practice Commentaries, McKinney’s Cons Laws of NY, Book 39, Penal Law art 460, at 552.) However, the experience of the Federal courts with RICO was examined closely by the Legislature. OCCA was designed to target certain criminal activities more precisely defined and with less sweep than RICO.
When RICO was enacted, it was widely viewed as a potent weapon against organized crime. But it hаs been used not just against "organized crime” in the traditional sense but also against many other activities since RICO as enacted permitted a very broad view of its scope. The key section of RICO, 18 USC § 1962 (c), makes it unlawful "for any person employed
The concept "enterprise” has proven equally elusive. (See, United States v Turkette,
The New York Organized Crime Control Act’s enterprise corruption sections were designed to avoid such a proliferation of prosecutions. Thus, the legislative findings accompanying the statute point out that the statute contains more rigorous definitions than other similar statutes, which limit the statute’s applicability. Chief among these definitional restrictions is New York’s requirement that a perpetrator act with intent to participate in оr advance the affairs of a criminal enterprise. The statute defines " '[cjriminal enterprise’ ” as a "group of persons sharing a common purpose of engaging in criminal conduct, associated in an ascertainable structure distinct from a pattern of criminal activity, and with a continuity of existence, structure and criminal purposе beyond the scope of individual criminal incidents” (Penal Law § 460.10 [3]). A person is guilty of enterprise corruption
"when, having knowledge of the existence of a criminal enterprise and the nature of its activities, and being employed by or associated with such enterprise, he:
*755 "(a) intentionally conducts or participates in the affairs of an enterprise by participating in a pattern of criminal activity” (Penal Law § 460.20 [1]).
The result of this statutory scheme is that there must be a criminal enterprise with a structure and purpose аs set forth in the statute, and the defendant must know of its existence and the nature of its activities. That the Legislature intended for the "criminal enterprise” requirement to limit the applicability of the statute is clear from a letter by one of the authors of the bill, Assembly Member Melvin H. Miller, then Chairman of the Committee on Codes to Evan A. Davis, Counsel to the Governоr. It is clear from the letter that Mr. Miller sought to clarify the intent of the Legislature while urging the Governor’s approval of the bill. Mr. Miller wrote:
"The most fundamental difference betweеn the measure approved by the Assembly and all prior versions is the requirement of each defendant’s association with a criminal enterprise. Other proposals would have permitted, as does federal law, prosecution of individuals who engage in a pattern of criminal activity without further proof that the criminal activity was acсomplished for the purpose of participating in or advancing the affairs of a criminal enterprise with a separate, distinct and ascertainable structure аnd a continuity of existence and purpose beyond the scope of the pattern itself.
"The members of the Codes Committee felt that the extraordinary sanctions аllowed under the Act should be reserved for those who not only commit crimes but do so as part of an organized criminal enterprise. Present law is adequate to punish ordinary white-collar crime * * *. For that reason, it was not the sponsor’s intent to redefine or sanction a new conduct already punishable under current law. Similarly, mere corruрtion of a legitimate enterprise by a pattern of criminal activity is insufficient to justify prosecution under this Act.”
There is no question that the allegations against the defendants in this regard would satisfy the Federal RICO standard. The People have sought to demonstrate that the roles played by Moscatiello, Eckhaus and Schepis, in committing the crimes chаrged, demonstrate the existence of a criminal enterprise. However, having reviewed the Grand Jury minutes this court cannot conclude that these persons were "assоciated in an ascertainable structure distinct from a pattern of criminal
Failure of the evidence to show a criminal enterprise within the meaning of Penal Law article 460 compels dismissal of the first count.
Count one is dismissed.
[Portions of opinion omitted for purposes of publication.]