PEOPLE , & C., RESPONDENT, v. MARTIN GREENBERG, APPELLANT.
89 N.Y.2d 553, 678 N.E.2d 878, 656 N.Y.S.2d 192 (1997).
March 25, 1997
AppT No. 30 (1997 NY Int. 36)
Decided March 25, 1997
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This opinion is uncorrected and subject to revision before publication
in the New York Reports.
Joseph C. Heinzmann, Jr., for Appellant.
Judy C. Seiff, for Respondent.
KAYE, CHIEF JUDGE:
An offense committed on board a common carrier may be prosecuted in
any county through which the carrier passed during the trip (CPL
20.40(4)(f)). Does this statute allow defendant to be tried in New
York County for offenses committed on a commuter train from
Westchester to New York County, where it is undisputed that the
offenses took place wholly in Westchester? We conclude that New York
County was a proper place of trial.
In March 1993, defendant boarded a Metro-North commuter train to New
York City in Westchester County. He displayed a weekly pass to the
conductor, who, believing it looked suspicious, asked to see the pass
again after collecting several other tickets. This time, defendant
produced a valid one-way ticket. The conductor, however, asked again
for the weekly pass. Defendant complied, and the conductor determined
that the pass was a forgery. While still in Westchester County, the
conductor seized the pass. Defendant was arrested when the train
arrived in New York City.
Defendant was tried without a jury in New York County for criminal
possession of a forged instrument in the third degree and theft of
services. The parties stipulated during trial that defendant had
displayed the forged train pass in Westchester County. At the close of
the People's direct case, defendant moved for a trial order of
dismissal on the ground that the People had failed to prove that New
York County was the proper venue for trial. The People countered that
CPL 20.40(4)(f) authorized prosecution in New York County. Reserving
decision on defendant's motion, Criminal Court found defendant guilty
of the charged offenses.
SNIPPETS:
Joseph C. Heinzmann, Jr., for Appellant.
An offense committed on board a common carrier may be prosecuted in any county through which
Does this statute allow defendant to be tried in New York County for offenses committed on a
defendant boarded a Metro-North commuter train to New York City in Westchester County.
He displayed a weekly pass to the conductor, who, believing it looked suspicious, asked to
At the close of the People's direct case, defendant moved for a trial order of dismissal on
Reserving decision on defendant's motion, Criminal Court found defendant guilty of the
Relying on People v Moore (46 NY2d 1), the court held that CPL 20.40did not apply, because
The burden is on the People to prove at trial either that the county of prosecution is where
Venue is not an element of the offense, however, and need only be established by a
The People's reliance on the statutory provisions governing pretrial motion practice is
Turning to the merits, it is undisputed that the offenses were committed in Westchester
"An offense committed on board a railroad train, aircraft or omnibus operating as a common
Since the train on which defendant was a passenger traveled through New York City and the
Defendant, however, argues that People v Moore limits the common carrier exception to
"An offense committed in a private vehicle during a trip thereof extending through more than
This Court held that prosecution in Kings County was improper, concluding that subdivision
As the Court explained inMoore, the private vehicle exception was adopted in 1971 as part of
The 1877 predecessor to the common carrier exception applied only to offenses committed "in
Opinion by Chief Judge Kaye.
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