This opinion is uncorrected and subject to revision before

publication in the New York Reports.

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No. 77 

The People &c.,

 Respondent,

 v.

Ricky A. Lynch,

 Appellant.

Louis E. Mazzola, for appellant.

Ronnie Jane Lamm, for respondent.

LIPPMAN, Chief Judge:

In this appeal, we determine whether defendant's second

prosecution in New York was based on the same criminal

transaction as a previous prosecution, and thus barred by New

York's statutory double jeopardy protections. We hold that these

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prosecutions involved different criminal transactions.

On June 15, 2009, defendant used false information when

filling out an application (an MV-44 form) for a non-driver

identification card, a form he submitted to the New York State

Department of Motor Vehicles (DMV) in Suffolk County. On the

application, defendant represented himself to be Ricky Lynch,

Jr., defendant's son, using his son's name, date of birth, and

social security number.

In November 2009, while driving in Westchester County,

defendant made an illegal U-turn for which he was stopped by the

police. When asked for identification, defendant produced the

non-driver ID card he had obtained in June 2009. During an

inventory of the car after defendant was arrested for driving

with a suspended license, the officer found two other fake or

forged identification cards on the floor behind the driver's

seat. Defendant was charged with criminal possession of a forged

instrument in the second degree, aggravated unlicensed operation

of a motor vehicle in the second degree, and false personation. 

He pleaded guilty to a reduced charge of criminal possession of a

forged instrument in the third degree in satisfaction of the

indictment.

Defendant's son, Ricky Lynch, Jr., returned to New York

in February 2010 after living with his mother in Arizona for four

years. When he attempted to obtain a new driver's license at the

DMV, he was told he had unpaid tickets and that his license was

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suspended. After reviewing its records, the DMV found that

defendant had used his son's identifying information to apply for

an ID card. Defendant's son identified his father's photograph

on licenses ostensibly issued to Ricky Lynch, Jr.

In August 2010, a Suffolk County Grand Jury charged

defendant with criminal possession of a forged instrument in the

second degree, alleging that on June 15, 2009, he possessed a

forged instrument (the MV-44 form); forgery in the second degree,

alleging that on June 15, 2009, with intent to defraud his son,

he falsely made and completed the form; identity theft in the

first degree, alleging that on the same date, he assumed the

identity of his son; and offering a false instrument for filing

in the first degree, alleging that on the same date, he presented

the said form.1

Defendant moved to dismiss the Suffolk County charges

on statutory double jeopardy grounds under Criminal Procedure Law

40.20. The court denied the motion, reasoning that "defendant is

not charged in Suffolk County with possession of the identity

card and thus the 'res' of the crime is a completely different

instrument" and "although related, the alleged crimes in Suffolk

were complete with the defendant filing his application." "That

1 Following a jury trial, defendant was convicted of all charges

in the indictment. At sentencing, the court dismissed the

conviction of forgery in the second degree on the ground that one

cannot be convicted of both criminal possession of a forged

instrument and forgery of the same written instrument. 

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the defendant possessed the fruits of that crime is a separate

and distinct act which is not subject to a defense of double

jeopardy." 

The Appellate Division affirmed, holding that there was

no statutory double jeopardy violation because the "crimes for

which the defendant was prosecuted in Suffolk County were not

based upon the same criminal transaction as the crime for which

he was prosecuted in Westchester County" (116 AD3d 979, 979 [2d

Dept 2014]). "The Westchester County prosecution involved a

separate offense, which arose out of defendant's possession of a

different forged instrument than the one at issue in the Suffolk

County prosecution" (id. at 980). 

Under CPL 40.20, a subsequent prosecution for offenses

involving the "same criminal . . . transaction," as defined by

CPL 40.10 (2), violates the statutory bar against double jeopardy

unless an exception applies. 

"'Criminal transaction' means conduct which

establishes at least one offense, and which

is comprised of two or more or a group of

acts either (a) so closely related and

connected in point of time and circumstance

of commission as to constitute a single

criminal incident, or (b) so closely related

in criminal purpose or objective as to

constitute elements or integral parts of a

single criminal venture" (CPL 40.10 [2]). 

The definition contains two alternative tests to

determine whether two offenses are part of the same criminal

transaction. Part (a) "involves consideration of the nature,

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timing and circumstances of the offenses" so that, for example,

where a seller of pornographic materials sold two pornographic

items at the same time to a single purchaser, the acts

constituted the same criminal transaction (7 NY Prac., New York

Pretrial Criminal Procedure § 2:6 [2d ed.] citing People v North

Street Book Shoppe, Inc., 139 AD2d 118 [3d Dept 1988]). In

contrast, a court identified two separate criminal transactions

where defendants used stolen credit cards to purchase

merchandise, for which they were convicted of criminal possession

of stolen property and forged instruments in New York State, and

three months later bought different stolen credit cards, for

which they were convicted in federal court of conspiracy to

purchase stolen credit cards (see People v Vesprey, 183 AD2d 212

[1st Dept 1992], lv denied 81 NY2d 894 [1993]). Different

criminal transactions have also been recognized for separate

sales of drugs to the same person at the same place, separated by 

48 hours (see People v Robinson, 65 AD2d 896 [3d Dept 1978]). 

In People v Dallas (46 AD3d 489 [1st Dept 2007]),

defendant's prosecution in New York County for possession of 12

counterfeit documents and subsequent prosecution in Kings County

for the sale of different false identification documents "of the

same nature," did not violate the statutory protections against

double jeopardy because the offenses "were not so closely related

as to constitute a single criminal transaction" (id. at 490

[internal quotation marks omitted]). "The fact that defendant

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was in the business of selling counterfeit identifications, and

that his conduct in both counties may have been admissible in

both prosecutions . . . did not make his possession of different

documents at different times a single criminal transaction"

(id.). 

Part (b) of the CPL 410.10 definition "tends to be more

applicable to crimes that involve planned, ongoing organized

criminal activity, such as conspiracies, complex frauds or

larcenies, or narcotics rings" (7 NY Prac., New York Pretrial

Criminal Procedure § 2:6 [2d ed.]). This Court has recognized

statutory violations of double jeopardy protections in drug

trafficking cases where the "embracive nature of the crime of

conspiracy" presents unique circumstances (People v Abbamonte, 43

NY2d 74, 85 [1977]; see Matter of Abraham v Justices of NY

Supreme Ct. of Bronx County, 37 NY2d 560 [1975] [concluding that

successive prosecutions in state and federal court for drug

trafficking of the same drugs constituted the same criminal

transaction and violated statutory double jeopardy protections]). 

In Abraham, this Court observed that each defendant in the drug

trafficking conspiracy "played a well-defined role in a highly

structured, disciplined and vertically integrated criminal

enterprise," and "the part with which each was immediately

concerned was dependent upon the success of the whole" (id. at

567 [internal citation and quotation marks omitted]). The Court

concluded that the "acts and conduct constituted 'integral parts

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of a single criminal venture' and, thus, a single 'criminal

transaction' within the meaning of CPL 40.20" (id.). 

Here, under the test presented by CPL 40.10 (2) (a),

the offense of submitting a forged MV-44 form and the offense of

presenting a forged non-driver ID to the police were many months

apart and, as in People v Dallas (supra), involved different

forged instruments -- the non-driver's license and the MV-44

application form -- making them different criminal transactions. 

The Suffolk County charge was based on defendant's completion and

filing of the application form. The offense was complete once

defendant submitted the forged application to the DMV in June

2009. The Westchester offense occurred four months later and was

based on defendant's presentation of the forged non-driver's

license to the officer. With the non-driver ID card in hand,

defendant could give the appearance of a clean record, which

would enable him to evade his criminal history and obtain a loan

or employment under a false identity. Applying the alternative

test defined by CPL 40.10 (2) (b), this case does not involve the

integrated, interdependent acts as seen in conspiracy cases or

complex frauds, and as such does not constitute a "single

criminal venture" (see 37 NY2d at 567). 

A closer case might be presented had defendant applied

for a driver's license in Suffolk County with his son's papers

and showed the temporary driver's license later that same day

when his car was stopped by police. In such circumstances, the

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timing and criminal purpose of the two acts would be more

interrelated than the circumstances presented here.

As the successive prosecutions here involved two

different criminal transactions, we need not reach defendant's

remaining contentions. 

Accordingly, the Appellate Division order should be

affirmed.

* * * * * * * * * * * * * * * * *

Order affirmed. Opinion by Chief Judge Lippman. Judges Read,

Pigott, Rivera, Abdus-Salaam, Stein and Fahey concur.

Decided June 9, 2015

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