Students in my New York Criminal Practice course at St. John's read Matter of Polito v. Walsh, 8 N.Y.3d 683 (2007), one of the key dual sovereignty cases in the double jeopardy area. Recently, AD2 added a postscript to the Polito prosecution when it decided People v. Fortunato (2d Dept. 2/9/2010).
The case was an organized crime-related prosecution that originally started in federal court, where the defendants were prosecuted for RICO and VCAR (Violent Crimes in Aid of Racketeering Act) crimes arising out of a murder and attempted murder in Brooklyn. The Second Circuit reversed the convictions of Polito and Fortunato because there was insufficient evidence that the crimes were committed in aid of racketeering; there was evidence they were over some personal debts. New York courts subsequently held that a state court prosecution was permissible because of the exception in CPL § 40.20(2)(f) ("One of the offenses consists of a violation of a statutory provision of another jurisdiction, which offense has been prosecuted in such other jurisdiction and has there been terminated by a court order expressly founded upon insufficiency of evidence to establish some element of such offense which is not an element of the other offense, defined by the laws of this state.").
Fortunato and Polito's state court prosecutions then went to trial in Kings County. Polito was acquitted by a jury, but Fortunato was found guilty by the court. The Second Department reversed Fortunato's conviction because the verdict was against the weight of the evidence.
The People's theory at trial was that Polito was the mastermind and the defendant aided and abetted the crime by providing Polito with one of the guns and agreeing to pay for the murders.
The only evidence of payment came from a cooperating co-defendant, who said that Polito had told him the defendant would pay for the murders. However, that same witness had allocuted in federal court that Polito was the one who had financed the crimes. Another cooperating co-defendant had no idea that the defendant had agreed to pay for the crime. Moreover, there was no evidence that the defendant was ever asked for money after the killing.
Regarding the gun, the only evidence came from a cooperating co-defendant, whose testimony was "inconsistent and confusing." Moreover, there was no evidence the defendant was aware that the bag he handed to a co-defendant contained a gun or, if he was so aware, that the gun was to be used for the crimes in question.
The only other evidence indicated that the defendant was surprised by the shootings and fled. The court dismissed the evidence of flight and coverup as consistent with an innocent person witnessing a violent shooting involving organized crime figures. (LC)
The case was an organized crime-related prosecution that originally started in federal court, where the defendants were prosecuted for RICO and VCAR (Violent Crimes in Aid of Racketeering Act) crimes arising out of a murder and attempted murder in Brooklyn. The Second Circuit reversed the convictions of Polito and Fortunato because there was insufficient evidence that the crimes were committed in aid of racketeering; there was evidence they were over some personal debts. New York courts subsequently held that a state court prosecution was permissible because of the exception in CPL § 40.20(2)(f) ("One of the offenses consists of a violation of a statutory provision of another jurisdiction, which offense has been prosecuted in such other jurisdiction and has there been terminated by a court order expressly founded upon insufficiency of evidence to establish some element of such offense which is not an element of the other offense, defined by the laws of this state.").
Fortunato and Polito's state court prosecutions then went to trial in Kings County. Polito was acquitted by a jury, but Fortunato was found guilty by the court. The Second Department reversed Fortunato's conviction because the verdict was against the weight of the evidence.
The People's theory at trial was that Polito was the mastermind and the defendant aided and abetted the crime by providing Polito with one of the guns and agreeing to pay for the murders.
The only evidence of payment came from a cooperating co-defendant, who said that Polito had told him the defendant would pay for the murders. However, that same witness had allocuted in federal court that Polito was the one who had financed the crimes. Another cooperating co-defendant had no idea that the defendant had agreed to pay for the crime. Moreover, there was no evidence that the defendant was ever asked for money after the killing.
Regarding the gun, the only evidence came from a cooperating co-defendant, whose testimony was "inconsistent and confusing." Moreover, there was no evidence the defendant was aware that the bag he handed to a co-defendant contained a gun or, if he was so aware, that the gun was to be used for the crimes in question.
The only other evidence indicated that the defendant was surprised by the shootings and fled. The court dismissed the evidence of flight and coverup as consistent with an innocent person witnessing a violent shooting involving organized crime figures. (LC)
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