People v. Zimmerman

OPINION OF THE COURT

This appeal asks us to determine whether defendant is subject to “particular effect” jurisdiction, or venue, as set forth in CPL article 20, in New York County. We conclude that he is not.

In 2002, the New York Attorney General’s office began an antitrust investigation into suspected unlawful conduct by *423Federated Department Stores and May Department Stores. The Attorney General sought to determine whether Federated and May conspired with Waterford Wedgwood USA and Lenox, Inc.—manufacturers of fine crystal and china—to restrain the sale of such products by Bed, Bath and Beyond, a competitor of Federated and May. During the investigation, the Attorney General subpoenaed documents from the companies and testimony from their current and former employees.

Prior to Federated’s compliance with the subpoena duces tecum, the Attorney General and Federated entered into a confidentiality agreement, which provided that any dispute regarding the disclosure or classification of documents would be brought in New York County Supreme Court. The agreement was sent to and signed by Federated’s attorney in Washington, D.C.

Defendant, James Zimmerman, who was the chairman and chief executive officer of Federated from 1998 until his retirement in February 2004, was among the witnesses examined under oath as a part of the investigation. The Attorney General sought to examine defendant at the Antitrust Bureau’s New York County office, but as an accommodation to him, the Attorney General agreed to conduct the examination at Federated’s corporate headquarters in Cincinnati, Ohio.

The examination was held on April 9, 2004. At that time, an oath was administered by the court reporter, who was also an Ohio notary public. Defendant was represented at the examination by his Washington, D.C. attorney, who signed the confidentiality agreement. During the examination, the Attorney General extensively questioned defendant regarding an alleged conversation he had with Waterford’s chairman of the board on June 11, 2001.

A couple of months later, the Attorney General’s office notified Federated, May, Waterford and Lenox that it was prepared to commence a lawsuit against them, alleging violations of the Donnelly Act and Executive Law § 63 (12). But before the action was commenced, the Attorney General resumed settlement negotiations that resulted in the four companies each entering into settlement agreements with the Attorney General.

Meanwhile, following defendant’s examination, the Attorney General commenced a grand jury investigation in New York County into defendant’s alleged perjury during his examination. As part of the charge to the grand jury, the Attorney General *424read the statutory provisions that govern “particular effect” jurisdiction and venue as set forth in CPL 20.20 (2) (b)1 (state jurisdiction), 20.10 (4)2 (definition of “particular effect”) and 20.40 (2) (c)3 (county jurisdiction). In January 2005, the grand jury indicted defendant for perjury in the first degree (Penal Law § 210.15), charging him with six instances of testifying falsely. The indictment also alleged “that the crime of Perjury in the First Degree was designed to prevent a particular effect in the County and State of New York and . . . that the defendant’s conduct . . . was performed with intent that it would, and knowledge that it would be likely to, have such an effect herein.”

Defendant, in an omnibus motion, moved to dismiss the indictment, arguing that “particular effect” venue, pursuant to CPL 20.40 (2) (c), did not lie in New York County. Defendant conceded that New York State had jurisdiction pursuant to CPL 20.20 (2) (b). Citing Matter of Taub v Altman (3 NY3d 30 [2004]), however, defendant argued that his alleged perjury had no perceptible impact on the governmental processes of that county and that there was no evidence that he actually intended or was aware that his alleged perjury would have a deleterious *425effect on the governmental or judicial processes of New York County. The People opposed the motion and argued that the evidence presented to the grand jury established that defendant acted with either the intent or knowledge that his actions would affect the antitrust investigation being conducted in New York County.

Supreme Court granted defendant’s motion, dismissed the indictment and held that defendant’s acts had no “particular effect” upon New York County. The Appellate Division affirmed and noted that “[c]riminal conduct constituting an offense has a ‘particular effect’ upon a county when it ‘produces consequences which . . . have a materially harmful impact upon the governmental processes or community welfare of [the] particular [county], or result in the defrauding of persons in such [county]’ ” (32 AD3d 345, 346 [2006], quoting CPL 20.10 [4]). The Appellate Division found that

“the evidence did not establish that, at the time defendant made his allegedly false statement, he was aware of the facts relied upon by appellant for this claim. Instead, all that can be reasonably inferred from the facts is that at the time he made his statements in Ohio, defendant knew his conduct would have a deleterious effect on the governmental or judicial processes of the State of New York, but not on any particular county” {id., citing Taub).

A Judge of this Court granted leave to appeal, and we now affirm.

In Taub, we opined that

“in order for prosecutorial jurisdiction to lie in New York County, it is that county . . . that must suffer a particular effect as a result of defendants’ alleged conduct. The statutory requirement that the conduct have a materially harmful impact may thus be satisfied only by a ‘concrete and identifiable injury’ to either the county’s governmental processes (that is, the executive, legislative or judicial branch of government) or the welfare of the county’s community. Moreover, to be materially harmful, the impact must be more than minor or incidental, and the conduct must harm ‘the well being of the community as a whole,’ not merely a particular individual” (Taub, 3 NY3d at 33-34 [citations omitted]).

*426Further, “because the jurisdiction of the county seeking to prosecute must be established before the grand jury, the type of injury or offense contemplated by the particular effect statute must ‘be perceptible and of the character and type which can be demonstrated by proof before a [gjrand [j]ury’ ” (Taub at 34, quoting Matter of Steingut v Gold, 42 NY2d 311, 317 [1977]).

The question presented here, as in Taub, is whether the evidence before the grand jury established a concrete and identifiable injury suffered specifically by New York County. The People rely upon instances of defendant’s conduct that purportedly affected New York County’s judicial processes. The People also contend that certain statements evince a concrete and identifiable injury suffered by New York County and that at the time defendant made the alleged perjurious statements in Ohio, he knew that they were likely to have a materially harmful impact on judicial processes in New York County. That is, he must have known that the Attorney General’s antitrust investigation might lead to civil litigation or criminal charges, proceedings that would necessarily be brought in New York County.

Defendant, on the other hand, argues that a New York County grand jury was without authority to indict him for perjury under the particular effect theory of geographical jurisdiction. Defendant contends that the proof that was presented to the grand jury failed to establish that his alleged conduct had or was likely to have a materially harmful impact on New York County or that he had the intent or knowledge that it would have such particular effect on the County.

Defendant’s argument should prevail because there was no evidence before the grand jury that could reasonably lead to the conclusion that when defendant allegedly testified falsely in Ohio, he did so with the intent or knowledge that his actions would have a material and harmful effect on New York County’s judicial processes. The subpoena for his testimony had not issued from a New York County grand jury, but rather from the Attorney General’s office itself, pursuant to its subpoena powers.

At common law and under the State Constitution, a defendant has the right to be tried in the county where the crime was committed unless the Legislature has provided otherwise (see People v Moore, 46 NY2d 1, 6 [1978], citing NY Const, art I, § 2, *427and People v Goldswer, 39 NY2d 656, 659-661 [1976]).4 “So stringently was that rule applied, at common law, that where the alleged act was performed in part in one county and in part in another or others, venue was in neither county, and prosecution could not be had at all” (Matter of Murtagh v Leibowitz, 303 NY 311, 316 [1951]).5 The Legislature sought to correct that situation by enacting venue statutes that permit the prosecution of certain actions in other counties under certain very specific conditions (see id.; see also People v Nicoll, 3 AD2d 64, 70-71 [4th Dept 1956] [reciting early history of multiple county jurisdiction]). Thus, “[a]bsent [a] statutory exception, . . . the territorial unit for criminal prosecutions is [a] county” (People v Fea, 47 NY2d 70, 75 [1979]).

Our previous cases illustrate the limits of county jurisdiction. In Fea, the People sought to prosecute the defendant in Bronx County for allegedly assaulting an individual in Rockland County. The assaults were intended to compel usurious loan payments in Bronx County. The People argued that defendant’s assaults had a materially harmful impact upon the community welfare of Bronx County. We reversed the conviction and dismissed the indictment, holding that “ [extraterritorial jurisdiction is to be applied only in those limited circumstances where the out-of-jurisdiction conduct is violative of a statute intended to protect the integrity of the governmental processes or is harmful to the community as a whole” (Fea, 47 NY2d at 76-77).

In Steingut (42 NY2d 311 [1977]), the petitioners were indicted in Kings County for the corrupt use of position or authority, in violation of Election Law § 448, for promising to assist in obtaining appointment to a position on the Civilian Complaint Review Board of the New York City Police Department in exchange for fund-raising services. The alleged promise occurred while the petitioners were at a luncheon meeting in New York County. The Kings County prosecutor asserted “par*428ticular effect” venue based on the fact that the fund-raising was to support an election that was to take place in Kings County. We concluded that where the election was to take place was an amorphous fact that the Legislature clearly did not intend to be dispositive in determining venue (see Steingut, 42 NY2d at 317).

We further noted in Steingut that the application of the statute was best illustrated by an example in a practice commentary “in which the culprit maliciously blows up a dam in Putnam County near the Westchester County line, thus flooding some Westchester territory—a result which he either intends or knows is likely to occur. In such case, jurisdiction of the crime lies in Westchester as well as in Putnam” (Steingut at 317 [citation omitted]). We held that “[i]n the case before us there was no perceptible material harmful impact such as the physical intrusion noted in the commentary or other types of impact” (id. at 318).

The difficulty in applying CPL 20.40 (2) (c) to the situation here is that it defines “jurisdiction of counties,” or venue, in the same terms used by CPL 20.20 (2) (b) to define the jurisdiction of the State. Under section 20.20 (2) (b), the State has jurisdiction if the statute defining the offense is designed to prevent a “particular effect in this state” and defendant’s criminal conduct “was performed with intent that it would have such effect herein.” CPL 20.10 (4) defines “particular effect,” as relevant here, to mean “consequences which . . . have a materially harmful impact upon the governmental processes or community welfare of a particular jurisdiction.”

Section 20.40 (2) (c) tracks section 20.20 (2) (b), with some variation; it says that a county has jurisdiction if the defendant’s “conduct had, or was likely to have, a particular effect upon such county or a political subdivision or part thereof, and was performed with intent that it would, or with knowledge that it was likely to, have such particular effect therein.” The parallelism between the approach of the state jurisdiction and county jurisdiction statutes appears, in hindsight, to be unworkable. The “jurisdiction” of the State and the “jurisdiction” of a county are fundamentally different from each other.

The State is a sovereign, and its power is limited by its boundaries. It can punish people for conduct committed outside those boundaries only in limited circumstances, as defined by section 20.20. But counties are not sovereigns; they are subdivisions of the State. If the State has jurisdiction of a case it may, as a gen*429eral rule, assign the trial of that case to any county it chooses. Thus, in enacting CPL 20.40 to regulate the “jurisdiction” of counties, the authors of the Criminal Procedure Law did not need to be concerned with limitations on sovereign power. More specifically, they did not need to require, as a precondition to venue, a “particular effect” upon a single “county or a political subdivision or part thereof’; nor did they need to require that the defendant intend such an effect or know that it is likely to occur. But they did impose those requirements, apparently overlooking at least two possibilities: (1) a defendant’s conduct might affect, or be intended or be likely to affect, the State of New York as a whole, rather than a county or some smaller unit of government; and (2) a defendant might intend an effect within the state without knowing in which county or counties the effect will occur. In these two situations, the statute leaves a gap; the State has jurisdiction, but no county does.

Here, the first of the possibilities overlooked by the Legislature is involved. Defendant’s perjury, if the charge against him is true, was obviously designed to mislead the New York State Attorney General and frustrate his investigation. Thus defendant’s act was performed with the intent that it would have a “particular effect” on the State—“a materially harmful impact upon” the State’s “governmental processes.” But there was no evidence presented to the grand jury indicating that defendant’s conduct was intended to have or, as far as defendant knew, was likely to have any “materially harmful impact” on the “governmental processes or community welfare” of any “county or a political subdivision or part thereof.”

Specifically, the confidentiality agreement, which named New York County as the venue for any dispute arising from the classification and disclosure of confidential information, was sent to, and signed by, Federated’s attorney in Washington, D.C. No grand jury testimony, however, indicates that defendant knew of the venue provision in the confidentiality agreement. Further, an Assistant Attorney General’s grand jury testimony relating to defendant’s examination focuses on defendant’s alleged perjurious statements, not on his state of mind. The testimony does indicate that defendant was aware that the Attorney General was investigating certain meetings that had taken place at Federated Department Stores’ offices in New York City, and that defendant was initially issued a subpoena to appear at the Attorney General’s offices in Manhattan to be examined. But awareness of a New York City-centered investigation is not evi*430dence that defendant acted with knowledge that his conduct would impact New York County’s governmental and judicial processes, nor can such an inference reasonably be drawn.

In conclusion, because evidence presented to the grand jury did not establish that defendant intended or knew that his alleged perjurious statements would have a concrete and identifiable injury to either New York County’s governmental processes or the welfare of the County’s community, “particular effect” jurisdiction, or venue, is not sustainable. Certainly, this result reflects a “Catch-22” situation. And it is lamentable that, although defendant’s acts admittedly could have caused a “concrete and identifiable” injury to New York State generally, there is not a single county in the state where this prosecution could be brought given the current statutory scheme. Again, the gap in the “particular effect” venue statutory scheme that we identified in Taub cannot be filled by this Court. The Legislature, however, may do so.

Accordingly, the order of the Appellate Division should be affirmed.