No. 90 Matter of Polito v. Walsh

Carmine Polito, Mario Fortunato and three co-defendants were arrested by federal agents in 2002 for the murder of Sabatino Lombardi, a Genovese crime family associate who was shot to death while playing cards at the San Guiseppe Social Club in Brooklyn in November 1994. Among other counts, they were charged with a violent crime in aid of racketeering (VCAR) under 18 USC § 1959, which provides, "Whoever,... for the purpose of gaining entrance to or maintaining or increasing position in an enterprise engaged in racketeering activity, murders, kidnaps, maims, assaults with a dangerous weapon, commits assault resulting in serious bodily injury upon, or threatens to commit a crime of violence against any individual in violation of the laws of any State or the United States, or attempts or conspires so to do, shall be punished ... for murder, by death or life imprisonment ...."

After a jury trial in U.S. District Court for the Eastern District of New York, Polito and Fortunato were convicted and sentenced to life without parole. On appeal, the U.S. Court of Appeals for the Second Circuit reversed their VCAR convictions on the ground there was insufficient evidence to establish that they killed Lombardi "'for the purpose of ... maintaining or increasing position in an enterprise engaged in racketeering activity.'"

When Polito and Fortunato were subsequently indicted for second degree murder by a Kings County grand jury for the killing of Lombardi, they commenced this article 78 proceeding to prohibit the state prosecution based on New York's double jeopardy statute (CPL 40.20[1]), which provides, "A person may not be twice prosecuted for the same offense." They argued the state murder charge is a lesser-included offense of VCAR murder and, therefore, the two are "the same offense" under the statute.

The Appellate Division, Second Department dismissed the proceeding, saying, "It is uncontroverted that the facts of the VCAR offense and the murder offense are the same, i.e., both are based upon the shooting of Lombardi on November 30, 1994. However, the offenses are not the same in law since the federal statute includes essential elements not present in the state statute.... To establish a VCAR violation, it must be demonstrated, inter alia, that an enterprise exists, and that the violent crime was committed to maintain or increase the defendant's position in the enterprise (see 18 USC § 1959). These are not elements of murder in the second degree." The court also ruled the state murder charge is not a lesser-included offense of VCAR because it would be possible to commit a VCAR offense without at the same time committing second degree murder.

"Murder is not the only crime which may serve as a basis for a VCAR violation since the statute lists other offenses, such as kidnapping, assault, or maiming, which may constitute the underlying criminal element of the statute...," it said.

Appellants argue it is irrelevant that crimes other than murder may serve as the basis for a VCAR
violation because they were actually prosecuted for VCAR murder. "VCAR murder requires proof that the defendant committed murder under New York law and did so to maintain or increase his position in a criminal enterprise," Fortunato says. "New York state murder requires proof that the defendant committed murder under New York law. Because proof of one offense (VCAR murder) necessarily entails proof of the other (murder), the latter is a lesser-included of the former, and the two are the 'same offense' for purposes of ... CPL 40.20(1)."

Appellants also contend that CPL 40.20(1) abrogates the dual sovereignty doctrine, which allows a successive state prosecution following a federal prosecution for the same or greater offense.