In State of New York v Unique Ideas (supra), a consumer fraud action was brought by the Attorney-General and a consent judgment was entered against the defendants. The terms of the judgment were violated when the defendants waited less than a month before offering the same " 'get rich quick’ ” scheme condemned in the consent judgment to some 2,500,000 potential new customers through the use of four bulk mailings (State of New York v Unique Ideas, supra, at 347). The Attorney-General sought to impose a civil contempt fine of $250 for each of the 2,500,000 postjudgment mailings. The trial court found this fine to be theoretically within its powers, but in its discretion imposed a fine of $500,000. The Appellate Division, First Department, concluded that the maximum fine that could be imposed was $250 for each of the four bulk mailings (56 AD2d 295). The Court of Appeals rejected the constructions of both the lower court and the Appellate Division, finding that a contempt award arrived at by multiplying $250 by either the 2,500,000 individual offerings, or by *44the four bulk mailings, was improper. The Court indicated that where there is an actual loss or injury, Judiciary Law § 773 did not provide for a general $250 fine, single or multiple. The Court stated that, in keeping with its compensatory policy, the statute called rather for an assessment that would indemnify the aggrieved parties—the defrauded consumers themselves. The Court held that since the consumers had suffered actual losses, "any civil fine based on separate acts of contempt multiplied by the statutory maximum for unprovable damages would be inappropriate” (State of New York v Unique Ideas, supra, at 350). The Court went on to state that "[e]ven if we were dealing with a case of mere prejudice rather than actual injury, that construction would be no less problematic, for it could be indiscriminately applied to achieve '<mask> beyond the requirements of just compensation or indemnity, and to reward the omission of exact proof by multiplying the maximum award by the number of the offenders’ or divisible offenses (Socialistic Co-op. Pub. Assn. v Kuhn, 164 NY 473, 476 * * *)” (State of New York v Unique Ideas, supra, at 350; see also, Page v Cheung On Mansion, 138 AD2d 324, 325).


<mask> is a form of larceny under the law of this State (Penal Law § 155.05 [2] [e]). The respondent’s demands for payment ranged from $5,000 up to $400,000. As such, the crime of which the respondent was convicted is essentially similar to grand larceny in the second degree or grand larceny in the third degree (Penal Law §§ 155.40, 155.35).


The second count of the indictment alleges that the defendants, each acting in concert with one another: "stole certain property which was obtained by <mask> committed by instilling in the victim, Daniel Leon, a fear that the actor or another person would use or abuse his position as a public servant by engaging in conduct within or related to his position as a public servant by engaging in conduct within or related to his official duties, or by failing or refusing to perform an official duty, in such manner as to affect some person adversely, namely, the defendants acting in concert demanding a quantity of United States currency to have defendant Latanya Gray, a police officer, withdraw criminal charges she had commenced against Daniel Leon.”


The court fuly recognizes, as was stated in Curran v. Galen (152 N. Y. 33, 37), that “ public policy and the interests of society favor the utmost freedom in the citizen to pursue bis lawful trade or calling. * * * Every citizen is deeply interested in the strict maintenance of the constitutional right freely to pursue a lawful avocation, under conditions equal as to all, and to enjoy the fruits of his labor, without the imposition of any conditions not required for the general welfare of the community.” (See Slaughter House Cases, 16 Wall. [83 U. S.] 36, 116, 122; People v. Gillson, 109 N. Y. 389, 399.) There has been in the instant case no interference with the liberty or the property rights of Flynn. He was free to pursue his lawful calling and to dispose of bis labor and enjoy the fruits thereof. Had there been here a malicious interference by a third party with Flynn’s right to the free disposal of his labor, or a threat to have him discharged as an inducement to the payment of money and by means of which money was obtained, then unquestionably the statutory crime of <mask> would have been proven. The learned Attorney-General contends, however, that there is a question of fact presented as to whether Flynn and the defendant entered into the agreement claimed by the latter, and that the contradictory testimony of the complainant in that regard should be ignored and the whole question left to a trial jury. It is my judgment that the absence of such an agreement would not in any way strengthen the prosecution’s case. I cannot agree with the claims in the Attorney-General’s brief: (1) “ That a property right existed in Patrick Flynn’s position with the defendant; (2) that, however legal the means adopted were that the end being illegal, the entire series of acts becomes criminal.”


“ (a) Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or <mask> or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this shall be fined not more than $10,000 or imprisoned not more than twenty years, or both.


In one instance, however, the subcontractor performed work on Capparelli’s house at the direction of the general contractor and upon the general contractor’s promise to pay for the work. This conduct was motivated by expectation of profit, and not by fear that Capparelli would interfere with his contract. (See, e.g., United States v Garcia, 907d 380 [2d Cir 1990].) Moreover, the general contractor hired this subcontractor without Capparelli’s influence. To the extent that the general contractor was motivated by fear of Capparelli to instruct the subcontractor to work on the renovation of Capparelli’s house, this conduct is covered in other counts of the indictment. To the extent that the subcontractor’s conduct was motivated by Capparelli’s general reputation, this evidence is insufficient to establish <mask>, in the absence of any evidence of implicit threats by Capparelli to harm the business or person of the subcontractor. Moreover, the evidence in regard to this subcontractor does not support any other theory of larceny. The evidence fails to support an inference that the work was induced by any promise on the defendant’s part (cf., People v Churchill, 47 NY2d 151, 156 [1979]) or by any misrepresentation of fact. Therefore, these counts of the indictment are dismissed.


Based upon an investigation of the foregoing facts, which included interviews with Mrs. Burnham at the hospital on *419four separate occasions, Detective Favuzzi arrested the defendants on June 5, 1985. The defendants were indicted under indictment No. 2887/85 for the following crimes: attempted murder in the second degree; assault in the first degree (two counts); grand larceny in the first degree by <mask>; grand larceny in the second degree (17 counts); criminal possession of stolen property in the second degree; coercion in the second degree; and conspiracy in the fourth degree.


Section 496, subdivision (a), regarding receiving stolen property, was also amended by Proposition 47. It now provides, "Every person who buys or receives any property that has been stolen or that has been obtained in any manner constituting theft or <mask>, knowing the property to be so stolen or obtained, or who conceals, sells, withholds, or aids in concealing, selling, or withholding any property from the owner, knowing the property to be so stolen or obtained, shall be punished by imprisonment in a county jail for not more than one year, or imprisonment pursuant to subdivision (h) of Section 1170. However, if the value of the property does not exceed nine hundred fifty dollars ($950), the offense shall be a misdemeanor, punishable only by imprisonment in a county jail not exceeding one year, if such person has no prior convictions for an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or for an offense requiring registration pursuant to subdivision (c) of Section 290." (§ 496, subd. (a).)


Then the complainant was asked: “ Q. Now, you were convicted, were you not, in 1935 of <mask> by violence 1 ” Objection was made to the form of this question, “ extortion with violence ” and the objection was sustained. Then the defendant’s attorney asked the District Attorney to turn oyer to him the criminal record of the witness, with which he complied.


3While Boyd acknowledges this precedent, he invites us to revisit it. We decline to do so as he cites no authority or justification to reconsider our precedent. See Maresca v. Stctte, 103 Nev. 669, 673, 748 P.2d 3, 6 (1987) (declining to address arguments where a party failed "to present relevant authority and cogent argument"). SUPREME COURT OF NEVADA (0) 1947A .110.. • t 770, 778, 839 P.2d 578, 583 (1992). Additionally, we have rejected challenges to jury instructions on analogous grounds where the district court otherwise properly instructed the jury on the principles of burden of proof and presumption of innocence. E.g., Johnson, 118 Nev. at 806, 59 P.3d at 462 (rejecting argument that the reasonable-doubt instruction minimized the burden of proof, and noting the other instructions "on the presumption of innocence and the State's burden of proof"). The charges instruction accurately stated the jury's role, despite that it did not also state that guilt requires the State to offer proof beyond a reasonable doubt. Also, the district court provided two separate instructions, one on Boyd's presumption of innocence, and the other on the States burden. Accordingly, the district court did not abuse its discretion in including the objected-to language in the charges instruction. Specific-intent instruction Boyd objected to the specific-intent instruction on the first- degree kidnapping charge, arguing that it gave a "vague definition of specific intent and failed to tell the jury that Boyd needed to "knowingly detain[ ] [B.W.] with the "specific intent to hold or detain B.W. for the purpose of committing <mask>." He also argues that the instruction permitted the jury to determine guilt based on any purpose for which Boyd held B.W. so long as the evidence supported it, despite that the State's amended information listed only extortion as the purpose for which Boyd held B.W. Boyd contends that his proposed language would have corrected the alleged errors: "To establish specific intent, the State must prove, beyond a reasonable doubt, that Mr. Boyd knowingly detained [B.W.] with the intent to commit extortion and purposely intended to kidnap her." A conviction for kidnapping stands if either (1) the defendant "willfully seizes, confines, inveigles, entices, decoys, abducts, conceals,


Leonard H. Sandler, J. The defendant, an attorney, moves this court to inspect the Grand Jury minutes and upon inspection to dismiss for legal insufficiency an indictment filed by an Extraordinary and Special Grand Jury charging him with attempted grand larceny in the first degree by <mask> (two counts), attempted coercion in the second degree (one count), and misconduct by attorneys in violation of section 487 of the Judiciary Law (one count).


It is clear that where the People have relied upon a theory of larceny by <mask> under those sections of the Penal Law which expressly include extortion as part of the definition of the offense (Penal Law § 155.30 [6]; § 155.40 [2]), failure specifically to plead extortion requires dismissal of that count of the indictment. (People v Thompson, 80 AD2d 867 [2d Dept 1981].) As to these sections, it is also clear that evidence of larceny by extortion will not support a charge of larceny pleaded generally. (People v Robert YY, 58 AD2d 920, 921 [3d Dept 1977].) The People apparently assume that where extortion is not part of the definition of the crime, the provisions of Penal Law § 155.45 regarding extortion do not apply. The People apparently rely upon the term "element” in Penal Law § 155.45 (1).


The People appropriately state in their papers, “the purpose and effect of imposing a sentence upon a defendant convicted of any crime, and in particular, a serious felony offense, is to deter similar conduct by the defendant.” (People’s mem of law at 43.) However, they fail to state a single purpose of imposing a criminal sentence upon this defendant. Since July 2007, the People have represented that the matter would be resolved by either a violation, an ACD or outright dismissal; but now, through no fault on defendant’s part, he is facing the full effect of the possible sentence authorized by the felony charges, merely because (1) his attorney will not *370turn over evidence of <mask> (the tape), or (2) the ADA involved in plea negotiations did not have the actual authority to make any offer, or (3) of some misdirected emotional reaction. To sentence this defendant as a sex offender and expose him, and his family, to the myriad of conditions, regulations and rules associated with being convicted and designated as a sex offender would be a travesty of justice, given the facts of this case.


Edward J. Greenfield, J. In this action to recover under an insurance policy for losses allegedly sustained (see prior decision of May 10, 1984, by Greenfield, J.), plaintiffs have moved to dismiss the third affirmative defense and counterclaim in the amended answer. The challenged counterclaim was predicated upon alleged “<mask> activities” under the Racketeer Influenced and Corrupt Organizations Act (RICO; 18 USC § 1961 etseq.). The racketeering activity which it is alleged gives rise to treble damages claimed under RICO is the filing of a fraudulent and exaggerated insurance claim, using the mails and wire communication in interstate commerce in connection therewith.


1 See Letter for Portia Roberson, Director, Office of Intergovernmental Affairs, from William J. Murray, Deputy Director and General Counsel, New York Lottery (Dec. 4, 2009) (“N.Y. Letter”); Letter for Eric H. Holder, Jr., Attorney General of the United States, from Pat Quinn, Governor, State of Illinois (Dec. 11, 2009) (“Ill. Letter”); Letter for Bruce Ohr, Chief, Organized Crime and <mask> Section, Criminal Division, from John W. McCaffrey, General Counsel, Illinois Department of Revenue (Mar. 10, 2010); Department of Revenue and Illinois Lottery, State of Illinois Internet Lottery Pilot Program (Mar. 10, 2010) (“Ill. White Paper”).


As a prosecutor for almost two decades, and as one of the Judges presiding in the Adolescent Division of this court, this court knows of his own experience that there is a definite relationship between the creation and growth of juvenile delinquency and indeed more serious offenses and crimes against the common weal, and the operation of slot machines, which apparently appeal to the gambling instincts in young and old alike. Indeed, in Seaboard N. Y. Corp. v. Wallander (supra, p. 234) where it was sought to restrain the police commissioner of the city of New York from interfering with the use and operation of slot machines, the testimony of responsible prosecuting officers showed that “ there was a close relationship between the operation of pin-ball machines in this city and the increase in juvenile delinquency, as well as in the commission of many serious crimes *835of violence, including those of a <mask> nature, and even of murder.”


Defendant alleges that Simpson and Silverman used the United States mail to execute their scheme and committed at least two acts of mail fraud. Additionally, that Simpson, Silver-man and Grand White were an “enterprise” as defined in subdivision (4) of section 1961 of title 18 of the United States Code. That the activities of that enterprise affected interstate commerce and that Simpson participated in the conduct of the enterprise’s affairs through a pattern of <mask> activity in violation of section 1962 of title 18 of the United States Code.


By this motion the defendant argues that since he has already been tried once for the murder of Michael Holly he should not be tried again for the very same crime. He claims, in other words, that our State laws with respect to double *863jeopardy prohibit his second prosecution. The People contend however that this second prosecution is permitted. The prosecution relies upon a recent amendment to the Criminal Procedure Law which, in its view, allows the prosecution in our State court of a crime previously prosecuted in the Federal court as an act of <mask> under the RICO statute (CPL 40.50). It also relies upon a recent decision of Justice Gerald Sheindlin in People v Cooper (143 Misc 2d 654 [Sup Ct, Bronx County 1989]) which was, in effect, affirmed by the Appellate Division (Matter of Cooper v Sheindlin, 154 AD2d 288 [1st Dept]). However, for the reasons set forth herein, I agree with the defendant that his motion to dismiss should be granted.


Each of the relators was subpoenaed to appear and did appear before the Temporary State Commission of Investigation in August, 1958. The subpoenas served on each of them stated in part that the subject of the investigation was to inquire into: ‘ ‘ Matters concerning the public peace, public safety and public justice, and the faithful execution and effective enforcement of the laws of the State of New York, with particular reference but not limited to organized crime and <mask>, including the organization, purposes and participants of, and discussions had and decisions made at, a meeting held on the premises of Joseph Barbara on or about November 14, 1957, at Apalachin, Tioga County, State of New York.”


Lewis R. Friedman, J. Law enforcement officials have moved toward increased reliance on civil forfeiture statutes to aid "the war on crime.” The forfeiture concept is justified on many different bases but, in the minds of most of those involved with law enforcement, the main advantage of forfeitures is that they make criminal offenses financially expensive so as to deter those who would engage in similar activity (see, e.g., Cuomo, Asset Forfeitures Bill Framed for Drug War, NYLJ, Jan. 17, 1990, at 39, col 5). Numerous forfeiture laws have been passed recently that are related to specific underlying crimes (e.g., CPLR art 13-A [felonies]; Public Health Law § 3388 [drugs]; Tax Law § 1846 [untaxed cigarettes]; 18 USC § 1961 et seq. [<mask>, RICO]; 18 USC § 1467 [obscene materials]; 21 USC § 881 [a] [drugs]). In this case the New York City Police Department, through its Property Clerk, puts to an unusual use one of New York’s oldest forfeiture provisions, the New York City Administrative Code (first enacted as part of the Code of Criminal Procedure, L 1881, ch 442)1 — enforcement of the antiprostitution laws.


When the Conopeo action was commenced, Wein retained defendants to represent her interests. M & B appeared, and engaged in discovery and motion practice in the Conopeo action on its clients’ behalf. When, however, the first amended complaint, i.e., the Conopeo complaint, which named Moskowitz as a defendant, was interposed, M & B withdrew as counsel for Wein and her companies in the Conopeo action. The Conopeo complaint, at paragraph 7, alleges that Moskowitz is an attorney, and that he represented Wein and her companies from 1995 to date. Paragraph 55 alleges that “[a]t all relevant times, defendant Moskowitz not only served as de facto in-house counsel to defendants but also was instrumental in actively effectuating the operations of [a <mask> enterprise].” Four of the six counts set forth in the Conopeo complaint are asserted against all named defendants, and, hence, include Moskowitz. Count I alleges fraud, and seeks damages including punitive damages. Counts II and III allege violations of the federal RICO statute (18 USC § 1962 [c], [d]; § 1964 [c]), and seek treble damages. Count VI alleges unjust enrichment. Thus, the Conopeo complaint charges Moskowitz, attorney for Wein and her entities, with engaging in fraud and racketeering activity together with, or on behalf of, his clients.


The RICO statutes make it unlawful to use income from a pattern of <mask> activity: (1) to acquire an interest in, establish or operate an enterprise involved in interstate commerce; (2) to acquire or maintain an interest in such enterprise through a pattern of racketeering activity; (3) to conduct or participate in the conducting of such enterprise through racketeering activity; and (4) to conspire to do any of the foregoing acts. (Simpson Elec. Corp. v Leucadia, Inc., 72 NY2d 450 [1988].) The RICO statutes provide a civil cause of action for those injured by such prohibited activity. Plaintiff claims a civil right to recovery under RICO.


The concept "enterprise” has proven equally elusive. (See, United States v Turkette, 452 US 576; United States v Bledsoe, 674d 647, cert denied sub nom. Phillips v United States, 459 US 1040; United States v Stolfi, 889d 378; United States v Indelicato, 865d 1370.) Criticism of RICO stems not only from its vague language but also from the application of the statute to situations not usually associated with organized crime. This is so because whatever the definition of "enterprise”, it is not required that the enterprise be a criminal one. Indeed the statute is designed to attack the corruption of a legitimate enterprise by a pattern of <mask> activity. The result is that RICO is now widely used in cases where there is more than one defendant and the necessary predicate acts.


The Tenth Circuit, in rejecting the "simple discovery” rule, gave what would appear to be a more persuasive basis for the contrary position. "[W]e think that the more complete rule is 'that with respect to each independent injury to the plaintiff, a civil RICO cause of action begins to accrue as soon as the plaintiff discovers, or reasonably should have discovered, both *337the existence and source of his injury and that the injury is part of a pattern. ’ Bivens Gardens, 906 F.2d at 1554-55. This rule recognizes that a civil RICO plaintiff must allege not only injury, but also that the injury is part of a pattern of <mask> activity, to state a claim. Id. ” (Bath v Bushkin, Gaims, Gaines & Jonas, supra, at 820-821 [emphasis added].)


This court declines to apply Persico (supra) for several reasons. First, unlike the case at bar, the subsequent proceeding in Pérsico involved an entirely distinct legal offense, involving a different res gestae from the first offense. (Persico, supra, at 30.) In the case at bar, the defendant has simply been "indicted up” from assault to murder. The conduct which formed the basis of the assault proceeding, namely, the shooting of Martinez, is precisely the conduct which forms the basis of the murder trial. Second, and perhaps more importantly, the legislative history of the RICO statute explicitly provides for the use of prior convictions, obtained pursuant to plea agreements, to aid in establishing a pattern of <mask> activity. (See, supra, at 32; see also, e.g., United States v Phillips, 664d 971, 1009, n 55 [5th Cir 1981], cert denied sub nom. Platshorn v United States, 459 US 906 [1982].) Third, the prosecution in Pérsico sought only to introduce evidence of the conviction to establish RICO predicate act liability. (United States v Persico, supra, at 30.) It seemingly did not seek to read the defendant’s prior allocution to the jury, as the prosecution seeks to do here.


But more significantly, as is pointed out in present counsel’s argument to this court, never before has there been an instance where the Commission has denied a trade waste license without a finding or even an allegation which included one or more of the following: (1) being a member of organized crime, (2) <mask>, (3) a principal convicted of a crime, (4) association with organized crime figures, (5) board member of a criminal cartel, (6) business with organized crime, (7) nondisclosure of a principal, (8) operating as an unlicensed hauler, (9) applicant gave false testimony, (10) applicant engaged in predatory pricing and efforts to prevent independent companies from entering the New York City market, (11) bribery of public officials and/or police officers, (12) business records falsified to conceal crime, (13) participation in property rights grievances, (14) failure to disclose crime to the Commission, (15) refusal to accept monitor and/or pay monitor fees, or (16) extensive illegal dumping. To support his argument, counsel obtained all of these decisions via a request under the Freedom of Information Law and included them as exhibits to his papers. He urges that the prior decisions prove that the instant denial by the Commission was at sharp variance with its 10 years of decision making.


The background given (at 2) depicts a crime-ridden industry, commercial carting in New York City, which “was operated as an organized crime-controlled cartel engaging in a pervasive pattern of <mask> and anticompetitive practices.” Evidence to this effect, presented at lengthy City Council hearings, gave rise to the enactment of Local Law 42. As further pointed out in the history section of the decision, numerous indictments were brought in both state and federal court and a large number of organized crime figures were convicted and sent to prison.


The issue to be determined is whether or not the witness’ assertion of his privilege against self incrimination is proper. Curcio v. United States (354 U. S. 118) is determinative of the question. In that case a Special Grand Jury in the United States District Court for the Southern District of New York was investigating <mask> in the garment and trucking industries in Nbav York City. Joseph Curcio, the secretary-treasurer of Local 269 of the International Brotherhood of Teamsters, was subpoenaed to appear before the Grand Jury and to produce the union’s books and records. He appeared and testified before the Grand Jury that he was the secretary-treasurer of Local 269; that the union had books and records; that they Avere not then in his possession. He then refused on the ground of self incrimination to answer any questions pertaining to the whereabouts or who had possession of the books and records he had been ordered to produce. His assertion of self incrimination was overruled and he was summarily adjudged guilty of criminal contempt. The conviction related solely to Curcio’s failure to answer questions asked pursuant to the subpoena ad testificandum. He was not charged with failure to produce the books demanded in the subpoena duces tecum. The Court of Appeals affirmed the conviction (234 F. 2d 470). The United States Supreme Court reversed the conviction, holding that the petitioner’s personal privilege against self' incrimination attached to the questions relating to the whereabouts of the union’s books and records Avhich he did not produce pursuant to the subpoena, stating (pp. 123-124, 128):


The rule that a civil RICO claim does not accrue until a plaintiff both knows, or should have known, of the injury to business or property, and that the predicate act causing injury is part of a pattern of <mask> activity is based on a *339sounder footing than the "simple discovery rule.” The compelling argument is that "[conceptually there is no requisite RICO 'injury’ until the damage impacting the plaintiff becomes part of a pattern of racketeering activity. Prior to that point there is no RICO injury and the statute of limitations may not begin to accrue” (Keystone Ins. Co. v Houghton, supra, at 1131). Further, "common sense indicates that there is no accrual until all facts exist so that the plaintiff can allege a complete cause of action” (Butler v Local Union 823, 514d 442, 450 [8th Cir], cert denied 423 US 924). In Agency Holding Corp. v Malley-Duff & Assocs. (483 US, supra, at 154), the Supreme Court emphasized that "the heart of any RICO complaint is the allegation of a pattern of racketeering”. Moreover, "[t]he application of the discovery rule to both the injury and pattern elements of the civil RICO claim properly advances the broad remedial nature of civil RICO. Because a civil RICO plaintiff must prove that his injury is part of a pattern of racketeering activity, an injured party must know, or have reason to know, that his injury is part of a pattern before he can be expected to file a civil RICO cause of action. This rule also furthers the purposes of the four year statute of limitations for civil RICO claims established by the Supreme Court by requiring plaintiffs to pursue the civil RICO remedy within four years of the time when they discovered, or reasonably should have discovered, that they are entitled to civil RICO damages for their injury” (Bivens Gardens Off. Bldg. v Barnett Bank, 906d, supra, at 1555; see, Sedima, S.P.R.L. v Imrex Co., 473 US, supra, at 498 [RICO is to " 'be liberally construed to effectuate its remedial purposes’ ”]).


A pattern of <mask> activity "consists of 'at least two acts of racketeering activity, one of which occurred after [October 15, 1970] and the last of which occurred within ten years * * * after the commission of a prior act of racketeering activity.’ 18 U.S.C. § 1961 (5)” (Agristor Fin. Corp. v Van Sickle, 967d 233, 241 [6th Cir]). The definition of racketeering activity includes "any one of a number of predicate offenses, including wire and mail fraud. 18 U.S.C. § 1961 (1)” (McCool v Strata Oil Co., supra, at 1464). Racketeering also includes fraud in the sale of securities (18 USC § 1961 [1] [D]).


Each of these RICO claims requires that a defendant do one of two things: either (1) have collected an unlawful debt; or (2) engaged in a pattern of <mask> activity. (See 18 USC § 1962 [a] [“It shall be unlawful for any person who has received any income derived, directly or indirectly, from a pattern of racketeering activity or through collection of an un*819lawful debt”].) Since the court has already determined that Arch did not collect an unlawful debt, it can only be liable under RICO if it engaged in a pattern of racketeering activity. According to plaintiffs, in order to constitute a pattern of racketeering activity, there must be activity of a continuing nature. Indeed,


Congress with the intent of giving RICO expansive application did not define the key phrase "pattern of <mask> *244activity” in the statute in order to give the word "pattern” a more flexible concept. The absence of such definition has created a plethora of legal views in the Federal courts as to the requirement of a "pattern of racketeering activity” under RICO. (Beauford v Helmsley, 843d 103 [2d Cir]; Condict v Condict, 826d 923 [10th Cir]; Sedima, S. P. R. L. v Imrex Co., 741d 482 [2d Cir], revd 473 US 479, supra; Schreiber Distrib. Co. v Serv-Well Furniture Co., 806d 1393 [9th Cir]; Holmberg v Morrisette, 800d 205 [8th Cir], cert denied 481 US 1028; Moss v Morgan Stanley, Inc., 719d 5 [2d Cir]; Superior Oil Co. v Fulmer, 785d 252 [8th Cir]; United States v Jennings, 842d 159; Furman v Cirrito, 828d 898.)


Almost five years later, in H. J. Inc. v Northwestern Bell Tel. Co. (492 US 229, 239 [1989]), the court conceded that "'continuity plus relationship’ ” meant different things to different circuits. Nevertheless, it held firm to the Sedima requirement that, in order to establish a RICO pattern, the Government had to show "that the <mask> predicates are related, and that they amount to or pose a threat of continued criminal activity.” (H. J. Inc. v Northwestern Bell Tel. Co., supra, at 239.)


I hold that subdivision 1 of section 406 includes the present petitioner — although it is officially designated as a “ Commission ’ ’, and not as “ a board or committee ’ ’ — and that the subpoena was duly issued and duly made returnable for the time and place therein specified. The State Commission of Investigation has the function, poAver and duty, among others, to 16 conduct investigations * * * in connection with [a]ny matter concerning the public peace, public safety and public justice “ [t]he conduct of public officers and public employees ” and “ [t]he faithful execution and effiective enforcement of the laws of the state, with particular reference but not limited to organized crime and <mask> ’ It is authorized to “ conduct private and public hearings ” and to “ subpoena witnesses, compel their attendance [and to] examine them under oath ”. It may “ designate one or more members of the commission or its staff to preside over any such hearings ” and “ to exercise any such poAvers ” (L. 1958, ch. 989, § 2, subds. 2, 11).


The drafters of OCCA were also concerned about what they regarded as vague language in RICO. For example, the term "enterprise” is not defined in RICO. "Pattern of <mask> activity” is defined merely as "requiring] at least two acts of racketeering activity”. (18 USC § 1961 [5].) Because of RICO’s vagueness, there have been suggestions that the law may be vulnerable to constitutional attack. (See, e.g., Rakoff, The Unconstitutionality of RICO, NYLJ, Jan. 11, 1990, at 3, col 1.)


In addition, respondents’ reliance on Ramos’ proffer detailing his collaboration with Frank DeCostello, Sr. in <mask> and other criminal activity further supports the license denial. The Appellate Division, First Department, upheld a determination similarly denying waste carting licenses in Matter of Hollywood *428Carting Corp. v City of New York (288 AD2d 71 [2001]), where the evidence included a confidential informant’s affidavit. That Court explained that “ [although the statement of an anonymous informant set forth in one of the affidavits submitted by the Commission was not the only evidence of petitioners’ participation in the cartel, we note that such hearsay may be competent to support the type of administrative determination challenged here” (id. at 72 [citation omitted]).


The United States Supreme Court has on occasion had difficulty discerning what Congress intended a RICO "pattern” to involve. In Sedima, S. P. R. L. v Imrex Co. (473 US 479 [1985]), the court expressed dismay that Congress had failed to *117properly define the term at all but had simply required that a "pattern” include at least two acts of <mask> activity. The court concluded that "pattern” involved something more than two acts, and after examining RICO’s legislative history, settled on "'continuity plus relationship’ ” as the additional requirement. (Supra, at 496, n 14.)


*869"2. A person may not be separately prosecuted for two offenses based upon the same act or criminal transaction unless * * * "(h) One of such offenses is enterprise corruption in violation of section 460.20 of the penal law, <mask> in violation of federal law or any comparable offense pursuant to the law of another state and separate or subsequent prosecution is not barred by section 40.50 of this article.” It is plainly true that nothing said in section 40.50 bars the prosecution of this State indictment. In fact, section 40.50 is silent on the subject and therefore it may be argued that subsequent prosecution is not barred under section 40.20 (2) (h). However, I am again compelled to note that these amendments apply only when confronted with separate prosecutions for two different offenses based upon the same act or criminal transaction. The inclusion by reference of the terms of section 40.50 into section 40.20 (2) or for that matter the addition of paragraph (h) to CPL 40.20 (2) by ordinary rules of statutory construction cannot constitute an amendment to the first subdivision of section 40.20. Nor, in my view, can it be argued, without raising issues of enormous magnitude under the State Constitution, that these additions affect the application of a basic double jeopardy rule in operation throughout the entire history of our State.


In November 1990, after the investigation into alleged labor <mask> and other illegal conduct involving the plumbing industry had been underway for some time, the District Attorney applied for, and obtained, an order authorizing the installation of pen registers on three public telephones located at the Pelham Bay Diner in the Bronx. As required under CPL 705.10, there was the requisite showing of "reasonable suspicion” to authorize the use of a pen register in order to identify the telephone numbers dialed. This authorization was further extended in January 1991, and ultimately the District Attorney requested, and obtained, an eavesdropping warrant on the same telephones in February 1991, which was extended seven times through October 1991.


In 1996, following a 14-week jury trial, Defendant-Appellant Leo Contrera was sentenced principally to concurrent terms of life imprisonment for a narcotics conspiracy offense (Count 47) and murder in aid of <mask> (Count 8), a concurrent term of 20 years’ incarceration for arson (Count 7), and a consecutive term of five years’ incarceration for a firearms offense (Count 10). On September 21, 2020, Contrera — represented by appointed counsel — moved the District Court for a sentence reduction pursuant to the First Step Act of 2018, Pub. L. No. 115-391 § 404, 132 Stat. 5194, 5222. On November 30, 2020, the District Court granted Contrera relief under the First Step Act by reducing his conviction for Count 47 to time served, but denied his request for relief as to Count 8. Then, on January 14, 2021, Contrera — proceeding without counsel — moved the District Court pursuant to Rule 36 of the Federal Rules of Criminal Procedure to correct alleged errors in his Presentence Report (“PSR”). By order dated February 5, 2021, the District Court


18 USC § 1962 prohibits the use or investment of income from a "pattern of <mask> activity,” (1) to acquire an *243interest in or to establish or operate an enterprise engaged in or affecting interstate commerce (§ 1962 [a]); or (2) to acquire or maintain an interest in such an enterprise through a pattern of racketeering activity (§ 1962 [b]); or (3) to conduct or participate in the conducting of such an enterprise through a pattern of racketeering activity (§ 1962 [c]); or (4) to conspire to violate any of the first three foregoing subdivisions of section 1962 (§ 1962 [d]).


The government’s theory, at trial and on appeal, is that Mendoza was a part of the CRO’s <mask> conspiracy because he sold drugs for the gang—the same theory the government pursued as to Mendoza’s drug conspiracy charge. For these parallel theories, the government offered parallel evidence: the same evidence supported both the drug conspiracy charge and the RICO conspiracy charge. And unsurprisingly, Mendoza countered with the same argument that he used to challenge the drug conspiracy charge—that he was a mere drug user, not a conspirator in distributing drugs to others—and with the same counterevidence.


The RICO statutes make it unlawful to use income from a pattern of <mask> activity: (1) to acquire an interest in, establish or operate an enterprise involved in interstate commerce; (2) to acquire or maintain an interest in such enterprise through a pattern of racketeering activity; (3) to conduct or participate in the conducting of such enterprise through racketeering activity; and (4) to conspire to do any of the foregoing acts. (Simpson Elec. Corp. v Leucadia, Inc., 72 NY2d 450 [1988].) The RICO statutes provide a civil cause of action for those injured by such prohibited activity. Plaintiff claims a civil right to recovery under RICO.


In Bankers Trust Co. v Rhoades (741d 511, decided July 26, 1984), a somewhat different panel again dismissed a civil RICO complaint on the ground that section 1962 required an allegation that the injury alleged must be “by reason of” the <mask> activity. Applying that doctrine, damages sustained in defending a lawsuit on an insurance policy could not be considered damages arising by reason of “racketeering activity”.


1 See Letter for Portia Roberson, Director, Office of Intergovernmental Affairs, from William J. Murray, Deputy Director and General Counsel, New York Lottery (Dec. 4, 2009) (“N.Y. Letter”); Letter for Eric H. Holder, Jr., Attorney General of the United States, from Pat Quinn, Governor, State of Illinois (Dec. 11, 2009) (“Ill. Letter”); Letter for Bruce Ohr, Chief, Organized Crime and <mask> Section, Criminal Division, from John W. McCaffrey, General Counsel, Illinois Department of Revenue (Mar. 10, 2010); Department of Revenue and Illinois Lottery, State of Illinois Internet Lottery Pilot Program (Mar. 10, 2010) (“Ill. White Paper”).


The District Attorney, on the other hand, alleges that this action is one of great importance to the People of the State of New York; that the issues in this action are intricate; that the subject matter of the indictment herein and the issues to be tried have been widely commented upon by Widespread newspaper publicity throughout the entire nation; that he has been informed and believes that an appropriate committee of the Congress of the United States is presently engaged in the investigation of gambling and forms of <mask> in connection therewith. It is his contention therefore, that this widespread publicity and from the nation-wide interest concentrated on the subject matter of this indictment, that an ordinary jury cannot, without delay and difficulty, be obtained to try the issues arising herein and that the due, efficient and impartial administration of justice in this case would be advanced by the trial of the issues herein by a special jury.


RICO makes it “unlawful for any person employed by or as- sociated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of <mask> activity or collection of unlawful debt.” 18 U.S.C. § 1962(c). In addition to creating criminal liability, RICO creates a civil cause of action for “[a]ny person injured in his business or property” by a violation of § 1962. 18 U.S.C. § 1964(c). A plaintiff suing under RICO must allege six elements: “that the defendants (1) operated or managed (2) an enterprise (3) through a pattern (4) of racketeering activity that included at least two predicate acts of racketeering, which (5) caused (6) injury to the business or property of the plaintiff.” Cisneros v. Petland, Inc., 972 F.3d 1204, 1211 (11th Cir. 2020). A claim must be dismissed if it fails to plausibly allege any one of these six elements. Id. As to the second element—an enterprise—a plaintiff must allege “the existence of two distinct entities: (1) a ‘person’; and (2) an ‘enterprise’ that is not simply the same ‘person’ referred to by a different name.” Cedric Kushner Promotions, Ltd. v. King, 533 U.S. 158, 161 (2001). We have explained that “a defendant corpo- ration cannot be distinct for RICO purposes from its own officers, agents, and employees when those individuals are operating in their official capacities for the corporation.” Ray v. Spirit Airlines, Inc., 836 F.3d 1340, 1355 (11th Cir. 2016) (“The Supreme Court has made it crystal clear that the racketeering enterprise and the de- fendant must be two separate entities.”). RICO defines an USCA11 Case: 21-12894 Date Filed: 01/24/2022 Page: 6 of 9


It is not an insignificant indication of the deep-seated nature of the national infection that the rise in the crime rate this year — an “ appalling ” 8% increase according to F. B. I. Director J. Edgar Hoover — was sharpest in the smaller and medium sized areas. Except for sporadic arrests, narcotics continue as big business for the mobsters; policy rackets and bookies know no recession; bribery, extortion, and <mask> are unabated.


Mejia added that Davila had "a history of manipulation and lies," including an open case alleging welfare fraud. Mejia testified that Davila ran a business with her ex-husband, which was investigated by the FBI for <mask> and organized crime. Mejia initially stated that Davila was found guilty, but then stated "the trial is ongoing." Mejia also claimed Davila made a "report" in *225her prior divorce proceedings in which she claimed "the same thing," presumably referring to the allegations of abuse.


Plaintiff contends that the pattern of <mask> activity was made out by allegations that she was induced to obtain *575two separate loans, each of which involved mail or wire fraud. The "ongoing enterprise” is alleged to be the existence of the law firm defendant was associated with, even though it is clear that the law firm received no fees for this essentially private and personal transaction. The initial Beauford decision (supra) was overruled en banc (Beauford v Helmsley, 865d 1386). But Simpson (supra) still stands as controlling New York law. While in Beauford, there was one scheme directed at buyers of 8,000 condominium units, here we have a single individual involved in virtually contemporaneous transactions focused on a single real estate purchase. A court should not permit a plaintiff to convert what was essentially a single transaction into micro-units of activity in an attempt to demonstrate a multiplicity of acts.


When RICO was enacted, it was widely viewed as a potent weapon against organized crime. But it has been used not just against "organized crime” in the traditional sense but also against many other activities since RICO as enacted permitted a very broad view of its scope. The key section of RICO, 18 USC § 1962 (c), makes it unlawful "for any person employed *754by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of <mask> activity”. The courts have held that the pattern requirement requires the existence of at least two criminal predicate acts, and the Supreme Court of the United States has held that the "pattern” requirement requires not only two such acts, but also a certain continuity and relationship among such acts (see, H.J. Inc. v Northwestern Bell, 492 US 229). Yet other than this verbiage there has been little or no guidance as to the actual meaning of the term "pattern”.


Congress with the intent of giving RICO expansive application did not define the key phrase "pattern of <mask> *244activity” in the statute in order to give the word "pattern” a more flexible concept. The absence of such definition has created a plethora of legal views in the Federal courts as to the requirement of a "pattern of racketeering activity” under RICO. (Beauford v Helmsley, 843d 103 [2d Cir]; Condict v Condict, 826d 923 [10th Cir]; Sedima, S. P. R. L. v Imrex Co., 741d 482 [2d Cir], revd 473 US 479, supra; Schreiber Distrib. Co. v Serv-Well Furniture Co., 806d 1393 [9th Cir]; Holmberg v Morrisette, 800d 205 [8th Cir], cert denied 481 US 1028; Moss v Morgan Stanley, Inc., 719d 5 [2d Cir]; Superior Oil Co. v Fulmer, 785d 252 [8th Cir]; United States v Jennings, 842d 159; Furman v Cirrito, 828d 898.)


The respondents allege that the petitioner was convicted “for violating Title 18, U.S.C. §§ 1962(c), 1962(d), 1951, 1341 and 2 in that he did knowingly, willfully and unlawfully combine, conspire, confederate and agree with others to conduct and participate, directly and indirectly, in the conduct of the affairs of the Civil Court of the City of New York, through a pattern of <mask> activity, to devise a scheme to defraud and for obtaining money and property by means of false and fraudulent pretenses, did cause to be delivered by mail payments to attorneys for judgment creditors, representing less than full amounts which had been received at sham public auction sales and engaged in activities affecting interstate commerce.”


The Tenth Circuit, in rejecting the "simple discovery” rule, gave what would appear to be a more persuasive basis for the contrary position. "[W]e think that the more complete rule is 'that with respect to each independent injury to the plaintiff, a civil RICO cause of action begins to accrue as soon as the plaintiff discovers, or reasonably should have discovered, both *337the existence and source of his injury and that the injury is part of a pattern. ’ Bivens Gardens, 906 F.2d at 1554-55. This rule recognizes that a civil RICO plaintiff must allege not only injury, but also that the injury is part of a pattern of <mask> activity, to state a claim. Id. ” (Bath v Bushkin, Gaims, Gaines & Jonas, supra, at 820-821 [emphasis added].)


Finally, I must address the argument made by the prosecution that this second prosecution is specifically permitted by additions to the law which were part of the Organized Crime Control Act of 1986 (L 1986, ch 516). Upon the passage of our State’s enterprise corruption laws, portions of CPL article 40 were amended to deal with the complex double jeopardy problems engendered by that new law. Amongst the additions to article 40, section 40.50 (9) was added to provide that: "9. A person who has been previously prosecuted for <mask> pursuant to federal law, or any comparable offense pursuant to the law of another state may not be subsequently prosecuted for enterprise corruption based upon a pattern of criminal activity that specifically includes a criminal act that was also specifically included in the pattern of racketeering activity upon which the prior charge of racketeering was based provided, however, that this section shall not be construed to prohibit the subsequent prosecution of any other offense specifically included in or otherwise part of a pattern of racketeering activity alleged in any such prior prosecution for racketeering or other comparable offense. ” (Emphasis added.)


Even if the United States Supreme Court were to disagree with the views set forth in Sedima and Bankers Trust (supra), as to distinct RICO injury — it would make no difference, for defendant herein has made no pretense of alleging that the plaintiffs were engaged in a pattern of <mask> activity marked by two prior convictions. The mere making of a claim under an insurance policy is not, without more (even assuming mail and wire services to have been used), a basis for the assertion of a treble damage RICO claim. To permit the interposition of such a counterclaim in a suit on an insurance policy would result in RICO claims being routinely interposed, with the threat of treble damages and a “racketeering” label to be pinned on a plaintiff if, for some reason, he were unable to substantiate his allegations of a covered loss under the policy. An insurance claim, even if “willfully exaggerated”, is not tantamount to “racketeering activity”, and should not give rise to “a runaway treble damage bonanza”. (Schacht v Brown, 711d 1343, 1361.)


The elements of the Federal RICO Act include not only two acts to establish a " 'pattern of <mask> activity’ ” but the Government must also prove the existence of an "enterprise”, that the enterprise engages in, or its activities affect, interstate commerce and that the defendant was associated with the enterprise (see, United States v Smith, 574d 308, 310). These elements are not part of the New York offense.


2 The State argued the federal felony conviction for conspiracy to commit murder in aid of <mask> was comparable to Washington’s conspiracy to commit murder or first degree murder under accomplice theory. These offenses are both class A felonies. RCW 9A.28.040(3); RCW 9A.32.030(2); RCW 9A.08.020(3). As a “violent offense” either crime would contribute 2 points to Escobar’s offender score. Former RCW 9.94A.030(55)(a)(i) (2018); RCW 9.94A.525(8). If the federal felony conviction is not comparable to a Washington offense, it is scored as a class C felony and scores as 1 point. RCW 9.94A.525(3), (8); former RCW 9.94A.030(34) (2018).


RICO § 1962 (c) makes it unlawful, in pertinent part, "for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of <mask> activity” (18 USC § 1962 [c]). The terms "enterprise”, "person”, "racketeering activity”, and "pattern of racketeering activity” are defined in 18 USC § 1961, in pertinent part, as follows:


RICO was enacted in order to “halt organized crime’s infiltration of the American economy by creating ‘enhanced sanctions and new remedies’ against defendants who engage in <mask> activity to operate or gain control of business enterprises. In addition to the substantial criminal penalties and harsh civil remedies that the government can seek, section 1964(c) [offers] a private right of action for treble damages to anyone injured ‘by reason of’ a violation of the Act.” (See, generally, Note, Civil RICO: The Temptation and Impropriety of Judicial Restriction, 95 Harv L Rev 1101.)


That scope is extremely broad. 18 USC § 1962 (c) makes it unlawful "for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of <mask> activity”. There is no requirement that the "enterprise” be criminal in nature. As a result RICO has spawned substantial civil and criminal litigation having nothing to do with organized crime.


Even assuming jurisdiction, it does not appear that an adequate RICO claim is set forth. The United States Court of Appeals for the Second Circuit in Sedima, S.P.R.L. v Imrex Co. (741d 482, 492, decided July 25, 1984), held that under the statute, a party is entitled to treble damages only if it is alleged and proved that an enterprise’s affairs have been conducted through a “ ‘pattern of <mask> activity’ ”, which is defined under section 1961 (1) to include acts involving murder, kidnapping, gambling, robbery, bribery, narcotics, embezzlement, extortion, fraudulent securities and mail and wire fraud. The court in Sedima believed there was no evidence that Congress intended to create a broad civil cause of action under RICO unrelated to organized crime and its attempt at infiltration of private businesses. The court noted that while there were few cases where RICO had been used against reputed mobsters, there was a veritable explosion of cases alleging RICO offenses against legitimate enterprises where “garden variety” allegations of fraud were alleged. Such use of the RICO statute was characterized by the court as “extraordinary, if not outrageous” (p 487). The court went on to hold that for “ ‘pattern of racketeering activity’ ” (p 492) to exist, the predicate acts upon which a RICO claim could be based would require at least two prior criminal convictions. Additionally, the court declared that beyond ordinary damages, one asserting a civil action under RICO must allege a “separate, distinct racketeering enterprise injury”. There was a vigorous dissent from Judge Cardamone.


Congress in enacting RICO focused primarily on eradicating organized crime but did not limit the application of the RICO statute only to organized crime. The application of RICO was intended to reach both legitimate and illegitimate enterprises regardless of organized crime involvement. (See, Sedima, S. P. R. L. v Imrex Co., 473 US 479.) The Supreme Court held in H. J. Inc. v Northwestern Bell Tel. Co. (492 US 229, 249 [1989] ): "We thus decline the invitation to invent a rule that RICO’s pattern of <mask> concept requires an allegation and proof of an organized crime nexus.” Since RICO includes Federal mail and wire fraud as predicate offenses, the use of the mails and wire communications in furtherance of a scheme to defraud can easily place a violator of common-law fraud into the RICO statute subjecting him to sanctions of treble damages and attorney’s fees. Each use of the mails or wire communications under the statute is a separate violation, even if there is only one scheme to defraud. These aspects of the statute invited different "garden variety” fraud claims to be brought under RICO.


As previously stated, the plaintiff alleges an extensive scheme of bribery in which illicit payments in the form of cash kickbacks were made to defendant George Steiner from defendants Kaswol, JBJ Flooring Co., Ace Pump Corporation, Chalgo Supply Company, Inc., and Bestall Chemicals in the amount of 10% of the contract amounts in consideration for the illegal granting of contracts without competitive bidding. It is claimed these kickback amounts were billed to and paid by Riverbay continuously from 1979-1982 without Riverbay receiving any consideration and that fictitious invoices were prepared by George Steiner to cover up his illegal acts. It is claimed that the defendants, together with Riverbay, constituted an "enterprise” as defined in 18 USC § 1961 (4), such enterprise being known as the "Co-Op City Construction Defect Repair Program”. The affect on interstate commerce alleged in the complaint is the purchase and sale of building materials including floor tiles, copper wire and cable, and valves. The <mask> activity alleged includes commercial bribery (Penal Law §§ 180.03, 180.08), mail fraud (18 USC § 1341) and extortion (Penal Law § 155.05).


“Carl Perryman and Charles Sullins were arrested by agents of the Federal Bureau of Investigation (‘FBI’) this morning, pursuant to a four count indictment charging them with (1) Conspiracy to Commit Murder in-aid-of <mask>, in violation of Title 18, United States Code, Sections 1959 (a) (5); (2) Attempted Murder in-aid-of Racketeering, *313violation of Title 18, United States Code, Sections 1959 (a) (5) and 2; (3) Assault with a Dangerous Weapon in-aid-of Racketeering, in violation of Title 18, United States Code, Sections 1959 (a) (3) and 2; and (4) Discharging of a Firearm During a Crime of Violence, in violation of Title 18, United States Code, Sections 924 (c) (1) (A) (ii), 924 (c) (1) (A) (iii) and 2. Both Perryman and Sullins have been identified by the FBI Long Island Gang Task Force as members of the Old Mill Court Bloods (‘Bloods’).” Carl Perryman is alleged to have shot a member of the rival Crips at the parking lot of the subject premises located at 8 Old Mill Court, Rockville Centre, on March 16, 2011, with a gun supplied by Charles Sullins:


In addition, respondents’ reliance on Ramos’ proffer detailing his collaboration with Frank DeCostello, Sr. in <mask> and other criminal activity further supports the license denial. The Appellate Division, First Department, upheld a determination similarly denying waste carting licenses in Matter of Hollywood *428Carting Corp. v City of New York (288 AD2d 71 [2001]), where the evidence included a confidential informant’s affidavit. That Court explained that “ [although the statement of an anonymous informant set forth in one of the affidavits submitted by the Commission was not the only evidence of petitioners’ participation in the cartel, we note that such hearsay may be competent to support the type of administrative determination challenged here” (id. at 72 [citation omitted]).


The government’s theory, at trial and on appeal, is that Mendoza was a part of the CRO’s <mask> conspiracy because he sold drugs for the gang—the same theory the government pursued as to Mendoza’s drug conspiracy charge. For these parallel theories, the government offered parallel evidence: the same evidence supported both the drug conspiracy charge and the RICO conspiracy charge. And unsurprisingly, Mendoza countered with the same argument that he used to challenge the drug conspiracy charge—that he was a mere drug user, not a conspirator in distributing drugs to others—and with the same counterevidence.


Thus, in order to prevail on her claim, plaintiff must demonstrate that the allegedly defamatory statements were authorized or ratified by the entire membership of the UFT (see Building Indus. Fund v Local Union No. 3, Intl. Bhd. of Elec. Workers, AFL-CIO, 992 F Supp 192 [ED NY 1996]). Plaintiff has failed to meet this burden. Moreover, her challenge to Martin’s continued vitality based upon her reliance on People v Newspaper & Mail Deliverers’ Union (250 AD2d 207 [1998]) is unavailing. In that case, the Appellate Division, First Department, rejected an attempt to apply the holding in Martin to a labor union which was charged under section 460.20 of the Penal Law with enterprise corruption, predicated on unlawful acts allegedly committed by its officers, members and agents, including organized crime associates, in connection with newspaper distribution and various <mask> activities. Under the facts before it, the Court expressly disavowed Mar*897tin’s application, emphasized that Martin involved tort liability rather than criminal liability and, stating that its literal application would frustrate the Legislature’s intent behind its enactment of section 460.20 of the Penal Law, reversed the dismissal of the indictment based upon an erroneous application thereof (id. at 214). Thus, Newspaper & Mail Deliverers’ Union, which involved the imposition of criminal charges, does not cast doubt upon Martin’s continued viability.


*862In the spring of 1987, as a result of an investigation conducted jointly by Federal prosecutors and the prosecutors in this case, the defendant was indicted in the Federal court for <mask> in violation of 18 USC § 1962. In that case the Government charged that the defendant was part of a criminal enterprise known as the "Westies” and that the defendant committed at least two acts of racketeering in furtherance of that enterprise. As an act of racketeering the defendant was alleged to have "willfully, knowingly and unlawfully” murdered Michael Holly. From May through December 1987, along with other indicted "Westies”, the defendant was tried for the crimes alleged in the indictment and ultimately found guilty of the charges. At the time of the submission of the charges to the jury the Presiding Judge directed the jury to return a separate verdict as to the act of racketeering in question. Before rendering its final verdict, the jury reported that it had found the defendant guilty of this charge of murder. The defendant was sentenced to serve a term in prison of 60 years and the sentencing Judge made clear that the sentence was intended as punishment for the crime of racketeering as well as the individual acts of racketeering of which the defendant was found guilty.


The plaintiff Riverbay Corporation (Riverbay) is the owner and operator of the housing complex known as "Co-Op City” in which approximately 55,000 people reside. This action arises out of the alleged <mask> activities of the defendant in connection with the "Co-Op City Construction Defect Program”. Riverbay hired defendant George Steiner to manage this project in July 1978. Steiner was terminated as project manager in October 1981 amidst allegations of mismanagement after it came to light that he had awarded an unusual number of contracts on an "emergency basis” without competitive bidding to several contractors, including defendants Kaswol Construction Corp. (Kaswol) and Richard L. Kashinsky (Kashinsky).


When RICO was enacted, it was widely viewed as a potent weapon against organized crime. But it has been used not just against "organized crime” in the traditional sense but also against many other activities since RICO as enacted permitted a very broad view of its scope. The key section of RICO, 18 USC § 1962 (c), makes it unlawful "for any person employed *754by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of <mask> activity”. The courts have held that the pattern requirement requires the existence of at least two criminal predicate acts, and the Supreme Court of the United States has held that the "pattern” requirement requires not only two such acts, but also a certain continuity and relationship among such acts (see, H.J. Inc. v Northwestern Bell, 492 US 229). Yet other than this verbiage there has been little or no guidance as to the actual meaning of the term "pattern”.


Congress with the intent of giving RICO expansive application did not define the key phrase "pattern of <mask> *244activity” in the statute in order to give the word "pattern” a more flexible concept. The absence of such definition has created a plethora of legal views in the Federal courts as to the requirement of a "pattern of racketeering activity” under RICO. (Beauford v Helmsley, 843d 103 [2d Cir]; Condict v Condict, 826d 923 [10th Cir]; Sedima, S. P. R. L. v Imrex Co., 741d 482 [2d Cir], revd 473 US 479, supra; Schreiber Distrib. Co. v Serv-Well Furniture Co., 806d 1393 [9th Cir]; Holmberg v Morrisette, 800d 205 [8th Cir], cert denied 481 US 1028; Moss v Morgan Stanley, Inc., 719d 5 [2d Cir]; Superior Oil Co. v Fulmer, 785d 252 [8th Cir]; United States v Jennings, 842d 159; Furman v Cirrito, 828d 898.)


The rule that a civil RICO claim does not accrue until a plaintiff both knows, or should have known, of the injury to business or property, and that the predicate act causing injury is part of a pattern of <mask> activity is based on a *339sounder footing than the "simple discovery rule.” The compelling argument is that "[conceptually there is no requisite RICO 'injury’ until the damage impacting the plaintiff becomes part of a pattern of racketeering activity. Prior to that point there is no RICO injury and the statute of limitations may not begin to accrue” (Keystone Ins. Co. v Houghton, supra, at 1131). Further, "common sense indicates that there is no accrual until all facts exist so that the plaintiff can allege a complete cause of action” (Butler v Local Union 823, 514d 442, 450 [8th Cir], cert denied 423 US 924). In Agency Holding Corp. v Malley-Duff & Assocs. (483 US, supra, at 154), the Supreme Court emphasized that "the heart of any RICO complaint is the allegation of a pattern of racketeering”. Moreover, "[t]he application of the discovery rule to both the injury and pattern elements of the civil RICO claim properly advances the broad remedial nature of civil RICO. Because a civil RICO plaintiff must prove that his injury is part of a pattern of racketeering activity, an injured party must know, or have reason to know, that his injury is part of a pattern before he can be expected to file a civil RICO cause of action. This rule also furthers the purposes of the four year statute of limitations for civil RICO claims established by the Supreme Court by requiring plaintiffs to pursue the civil RICO remedy within four years of the time when they discovered, or reasonably should have discovered, that they are entitled to civil RICO damages for their injury” (Bivens Gardens Off. Bldg. v Barnett Bank, 906d, supra, at 1555; see, Sedima, S.P.R.L. v Imrex Co., 473 US, supra, at 498 [RICO is to " 'be liberally construed to effectuate its remedial purposes’ ”]).


To say that to permit corporate officers to use corporate funds to buy off racketeers is contrary to public policy because likely to produce or increase <mask> is appealing to one’s feeling of moral principles, but as applied to this case it involves the fallacious assumptions that business corporations owe a duty to the public to prevent racketeering at their own expense and that corporate officers are bound to observe that duty to the public even though it cause the loss of all the corporate funds committed to their charge. I do not think it can be said that public policy requires that corporate officers be thus required to serve two masters.


Even if the United States Supreme Court were to disagree with the views set forth in Sedima and Bankers Trust (supra), as to distinct RICO injury — it would make no difference, for defendant herein has made no pretense of alleging that the plaintiffs were engaged in a pattern of <mask> activity marked by two prior convictions. The mere making of a claim under an insurance policy is not, without more (even assuming mail and wire services to have been used), a basis for the assertion of a treble damage RICO claim. To permit the interposition of such a counterclaim in a suit on an insurance policy would result in RICO claims being routinely interposed, with the threat of treble damages and a “racketeering” label to be pinned on a plaintiff if, for some reason, he were unable to substantiate his allegations of a covered loss under the policy. An insurance claim, even if “willfully exaggerated”, is not tantamount to “racketeering activity”, and should not give rise to “a runaway treble damage bonanza”. (Schacht v Brown, 711d 1343, 1361.)


Defendant alleges that Simpson and Silverman used the United States mail to execute their scheme and committed at least two acts of mail fraud. Additionally, that Simpson, Silver-man and Grand White were an “enterprise” as defined in subdivision (4) of section 1961 of title 18 of the United States Code. That the activities of that enterprise affected interstate commerce and that Simpson participated in the conduct of the enterprise’s affairs through a pattern of <mask> activity in violation of section 1962 of title 18 of the United States Code.


On June 22, 1981, as noted above, John S. Martin, Jr., USA-SDNY issued a subpoena (duces tecum) for the seized property with regard to alleged violations of sections 371 (conspiracy), 844 (possession, receipt and transportation of explosives) and 1962 of title 18 of the United States Code (principal of prohibited activities, i.e., <mask> or collection of an unlawful debt) and pursuant thereto respondent turned over the items to the Task Force.


It is alleged that the said Edgecombe and Carey along with certain other personnel of the Immigration and Naturalization Service have been actively engaged “in conducting certain investigations concerning possible violations of Federal Law and citizenship and deportability by/and of certain persons who are alleged to be or have been associated with certain <mask> and corruption in and around the City of Utica, County of Oneida, State of New York.” It is further alleged, but only upon information and belief, that the testimony of said 11 persons before the Grand Jury is material and relevant to the investigation being conducted by the Immigration and Naturalization Service. The said petition contains no information of any kind which would indicate the source of the information and belief of the petitioner; the names of any persons who are being investigated as possible violators of Federal law, citizenship or deportability; whether the persons so being investigated are some of those whose testimony it is sought to examine; and in particular no information is made available to the court in such petition which could permit the court to determine what material or relevant information the Department of Immigration and Naturalization of the United States Department of Justice expects to obtain from an examination of the Grand Jury minutes.


I hold that subdivision 1 of section 406 includes the present petitioner — although it is officially designated as a “ Commission ’ ’, and not as “ a board or committee ’ ’ — and that the subpoena was duly issued and duly made returnable for the time and place therein specified. The State Commission of Investigation has the function, poAver and duty, among others, to 16 conduct investigations * * * in connection with [a]ny matter concerning the public peace, public safety and public justice “ [t]he conduct of public officers and public employees ” and “ [t]he faithful execution and effiective enforcement of the laws of the state, with particular reference but not limited to organized crime and <mask> ’ It is authorized to “ conduct private and public hearings ” and to “ subpoena witnesses, compel their attendance [and to] examine them under oath ”. It may “ designate one or more members of the commission or its staff to preside over any such hearings ” and “ to exercise any such poAvers ” (L. 1958, ch. 989, § 2, subds. 2, 11).


The background given (at 2) depicts a crime-ridden industry, commercial carting in New York City, which “was operated as an organized crime-controlled cartel engaging in a pervasive pattern of <mask> and anticompetitive practices.” Evidence to this effect, presented at lengthy City Council hearings, gave rise to the enactment of Local Law 42. As further pointed out in the history section of the decision, numerous indictments were brought in both state and federal court and a large number of organized crime figures were convicted and sent to prison.


Edward J. Greenfield, J. In this action to recover under an insurance policy for losses allegedly sustained (see prior decision of May 10, 1984, by Greenfield, J.), plaintiffs have moved to dismiss the third affirmative defense and counterclaim in the amended answer. The challenged counterclaim was predicated upon alleged “<mask> activities” under the Racketeer Influenced and Corrupt Organizations Act (RICO; 18 USC § 1961 etseq.). The racketeering activity which it is alleged gives rise to treble damages claimed under RICO is the filing of a fraudulent and exaggerated insurance claim, using the mails and wire communication in interstate commerce in connection therewith.


*869"2. A person may not be separately prosecuted for two offenses based upon the same act or criminal transaction unless * * * "(h) One of such offenses is enterprise corruption in violation of section 460.20 of the penal law, <mask> in violation of federal law or any comparable offense pursuant to the law of another state and separate or subsequent prosecution is not barred by section 40.50 of this article.” It is plainly true that nothing said in section 40.50 bars the prosecution of this State indictment. In fact, section 40.50 is silent on the subject and therefore it may be argued that subsequent prosecution is not barred under section 40.20 (2) (h). However, I am again compelled to note that these amendments apply only when confronted with separate prosecutions for two different offenses based upon the same act or criminal transaction. The inclusion by reference of the terms of section 40.50 into section 40.20 (2) or for that matter the addition of paragraph (h) to CPL 40.20 (2) by ordinary rules of statutory construction cannot constitute an amendment to the first subdivision of section 40.20. Nor, in my view, can it be argued, without raising issues of enormous magnitude under the State Constitution, that these additions affect the application of a basic double jeopardy rule in operation throughout the entire history of our State.


There was printed upon the face of the subpoena a general statement concerning the subject of the investigation before the commission, which related to organized crime and <mask>, including ££ the organization, purposes and participants thereof, and discussions had and decisions made at, a meeting held on the premises of Joseph Barbara, Sr., on or about November 14, 1957 at Apalachin, Tioga County, State of New York.”


Leland DeGrasse, J. Plaintiff New York State Crime Victims Board (the Board) brings this action pursuant to New York’s so-called “Son of Sam” Law (Executive Law § 632-a) against several entities and individuals associated with the writing and publication of the book Underboss, which recounts the life of defendant Salvatore Gravano. Gravano, a former member of the Gambino crime family, came to public prominence after being named in a Federal <mask> indictment with his boss John Gotti. Gravano became the highest-ranking member of La Cosa Nostra ever to testify against his former associates, and his testimony was instrumental in securing convictions against Gotti, Genovese crime family head Vincent Gigante, and a number of other organized crime figures.


Each of the relators was subpoenaed to appear and did appear before the Temporary State Commission of Investigation in August, 1958. The subpoenas served on each of them stated in part that the subject of the investigation was to inquire into: ‘ ‘ Matters concerning the public peace, public safety and public justice, and the faithful execution and effective enforcement of the laws of the State of New York, with particular reference but not limited to organized crime and <mask>, including the organization, purposes and participants of, and discussions had and decisions made at, a meeting held on the premises of Joseph Barbara on or about November 14, 1957, at Apalachin, Tioga County, State of New York.”


The elements that must be pleaded to state a civil RICO claim are "(1) conduct (2) of an enterprise (3) through a pattern (4) of <mask> activity” (Sedima, S.P.R.L. v Imrex Co., 473 US 479, 496; see also, McCool v Strata Oil Co., 972d 1452, 1464 [7th Cir] ["(t)he elements of a civil RICO claim * * * are 1) a violation of the RICO statute, including proof that the defendant has participated in a pattern of racketeering, and 2) an injury to business or property”]).


Respondents further observe that the decision reflected that the Commission reviewed a proffer, i.e., an offer of information to qualify for a plea bargain, made by Ramos to the New York County District Attorney’s office. That proffer, they claim, described several incidents where petitioner collaborated with Ramos in <mask> and criminal activity. Such incidents allegedly included an offer to Ramos of $1,500 to assault someone whom he seriously injured with a kitchen knife, utilizing Ramos to slap a flower shop owner and collect money from him, directing Ramos to “beat up” some youths harassing a customer, using Ramos to warn a competitor to stay away from certain Brooklyn customers, receiving customers that Ramos “poached” from another carter, giving Ramos a badge issued by the Department of Sanitation, and setting up a meeting where two men offered Ramos $20,000 to kill someone.


When the Conopeo action was commenced, Wein retained defendants to represent her interests. M & B appeared, and engaged in discovery and motion practice in the Conopeo action on its clients’ behalf. When, however, the first amended complaint, i.e., the Conopeo complaint, which named Moskowitz as a defendant, was interposed, M & B withdrew as counsel for Wein and her companies in the Conopeo action. The Conopeo complaint, at paragraph 7, alleges that Moskowitz is an attorney, and that he represented Wein and her companies from 1995 to date. Paragraph 55 alleges that “[a]t all relevant times, defendant Moskowitz not only served as de facto in-house counsel to defendants but also was instrumental in actively effectuating the operations of [a <mask> enterprise].” Four of the six counts set forth in the Conopeo complaint are asserted against all named defendants, and, hence, include Moskowitz. Count I alleges fraud, and seeks damages including punitive damages. Counts II and III allege violations of the federal RICO statute (18 USC § 1962 [c], [d]; § 1964 [c]), and seek treble damages. Count VI alleges unjust enrichment. Thus, the Conopeo complaint charges Moskowitz, attorney for Wein and her entities, with engaging in fraud and racketeering activity together with, or on behalf of, his clients.


The term "pattern of <mask> activity” has also found judicial approval. Racketeering activity means any offense from an extensive list of Federal and State crimes listed in the statute. (18 USC § 1961.) The limited definition of "pattern” contained in RICO has also survived challenges that it is too vague. See, United States v Angiulo (897d 1169, 1179 [1st Cir 1990]), in which the court declined to invalidate the statute as vague "simply because potential uncertainty exists regarding the precise reach of the statute in marginal fact situations”.


On or about May 20, 1993, some 20 months after commencing the 1991 action and 12 months after the Superior Court issued its articulation, respondents filed a demand for arbitration against the petitioners with the NASD in New York.2 The arbitration claims were based on the same transactions that formed the basis of the Connecticut action. However, in addition to asserting State common-law claims that were the subject of the 1991 action, respondents, in their statement of claim and demand for arbitration, asserted additional causes of action never submitted to the Connecticut court, including violations of Federal securities laws, NASD rules and State and Federal <mask> laws.


2 The State argued the federal felony conviction for conspiracy to commit murder in aid of <mask> was comparable to Washington’s conspiracy to commit murder or first degree murder under accomplice theory. These offenses are both class A felonies. RCW 9A.28.040(3); RCW 9A.32.030(2); RCW 9A.08.020(3). As a “violent offense” either crime would contribute 2 points to Escobar’s offender score. Former RCW 9.94A.030(55)(a)(i) (2018); RCW 9.94A.525(8). If the federal felony conviction is not comparable to a Washington offense, it is scored as a class C felony and scores as 1 point. RCW 9.94A.525(3), (8); former RCW 9.94A.030(34) (2018).


"(1) '<mask> activity’ means (A) any act or threat involving murder, kidnaping, gambling, arson, robbery, bribery, extortion, dealing in obscene matter, or dealing in narcotic or other dangerous drugs, which is chargeable under State law and punishable by imprisonment for more than one year; (B) any act which is indictable under any of the following provisions of title 18, United States Code: Section 201 (relating to bribery), section 224 (relating to sports bribery), sections 471, 472, and 473 (relating to counterfeiting), section 659 (relating to theft from interstate shipment) if the act indictable under section 659 is felonious, section 664 (relating to embezzlement from pension and welfare funds), sections 891-894 (relating to extortionate credit transactions), section 1084 (relating to the transmission of gambling information), section 1341 (relating to mail fraud), section 1343 (relating to wire fraud), sections 1461-1465 (relating to obscene matter), section 1503 (relating to obstruction of justice), section 1510 (relating to obstruction of criminal investigations), section 1511 (relating to the obstruction of State or local law enforcement) * * * section 1951 (relating to interference with commerce, robbery, or extortion), section 1952 (relating to racketeering) * * *


18 USC § 1962 prohibits the use or investment of income from a "pattern of <mask> activity,” (1) to acquire an *243interest in or to establish or operate an enterprise engaged in or affecting interstate commerce (§ 1962 [a]); or (2) to acquire or maintain an interest in such an enterprise through a pattern of racketeering activity (§ 1962 [b]); or (3) to conduct or participate in the conducting of such an enterprise through a pattern of racketeering activity (§ 1962 [c]); or (4) to conspire to violate any of the first three foregoing subdivisions of section 1962 (§ 1962 [d]).


Conversely, the Third, Eighth, Tenth and Eleventh Circuits hold that accrual of a RICO claim does not occur until plaintiff discovers both an injury to business or property and a pattern of <mask> activity, i.e., when all of the elements required to bring a civil RICO action exist (see, Davis v Grusemeyer, 996d 617 [3d Cir]; Keystone Ins. Co. v Houghton, 863d 1125 [3d Cir]; Glessner v Kenny, 952d 702 [3d Cir]; Granite Falls Bank v Henrikson, 924d 150 [8th Cir]; Bath v Bushkin, Gaims, Gaines & Jonas, 913d 817, supra [10th Cir]; Bivens Gardens Off. Bldg. v Barnett Bank, 906d 1546, 1550-1551 [11th Cir], cert denied sub nom. Barnett Banks v Konstand, 500 US 910, distinguishing Bowling v Founders Tit. Co., 773d 1175 [11th Cir], cert denied sub nom. Zoldessy v Founders Tit. Co., 475 US 1109). The Sixth Circuit in Agristor Fin. Corp. v Van Sickle (967d 233, supra) applied both the date of discovery of injury ("simple discovery rule”) and the date of discovery of a pattern of racketeering activity in applying the Statute of Limitations.


Even if the United States Supreme Court were to disagree with the views set forth in Sedima and Bankers Trust (supra), as to distinct RICO injury — it would make no difference, for defendant herein has made no pretense of alleging that the plaintiffs were engaged in a pattern of <mask> activity marked by two prior convictions. The mere making of a claim under an insurance policy is not, without more (even assuming mail and wire services to have been used), a basis for the assertion of a treble damage RICO claim. To permit the interposition of such a counterclaim in a suit on an insurance policy would result in RICO claims being routinely interposed, with the threat of treble damages and a “racketeering” label to be pinned on a plaintiff if, for some reason, he were unable to substantiate his allegations of a covered loss under the policy. An insurance claim, even if “willfully exaggerated”, is not tantamount to “racketeering activity”, and should not give rise to “a runaway treble damage bonanza”. (Schacht v Brown, 711d 1343, 1361.)


Mejia added that Davila had "a history of manipulation and lies," including an open case alleging welfare fraud. Mejia testified that Davila ran a business with her ex-husband, which was investigated by the FBI for <mask> and organized crime. Mejia initially stated that Davila was found guilty, but then stated "the trial is ongoing." Mejia also claimed Davila made a "report" in *225her prior divorce proceedings in which she claimed "the same thing," presumably referring to the allegations of abuse.


RICO § 1962 (c) makes it unlawful, in pertinent part, "for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of <mask> activity” (18 USC § 1962 [c]). The terms "enterprise”, "person”, "racketeering activity”, and "pattern of racketeering activity” are defined in 18 USC § 1961, in pertinent part, as follows:


Edward J. Greenfield, J. In this action to recover under an insurance policy for losses allegedly sustained (see prior decision of May 10, 1984, by Greenfield, J.), plaintiffs have moved to dismiss the third affirmative defense and counterclaim in the amended answer. The challenged counterclaim was predicated upon alleged “<mask> activities” under the Racketeer Influenced and Corrupt Organizations Act (RICO; 18 USC § 1961 etseq.). The racketeering activity which it is alleged gives rise to treble damages claimed under RICO is the filing of a fraudulent and exaggerated insurance claim, using the mails and wire communication in interstate commerce in connection therewith.


“(1) ‘<mask> activity’ means (A) any act or threat involving murder, kidnaping, gambling, arson, robbery, bribery, extortion, or dealing in narcotic or other dangerous drugs, which is chargeable under State law and punishable by imprisonment for more than one year; (B) any act which is indictable under any of the following provisions of title 18, United States Code: Section 201 (relating to bribery), section 224 (relating to sports bribery), sections 471, 472, and 473 (relating to counterfeiting), section 659 (relating to theft from interstate shipment) if the act indictable under section 659 is felonious, section 664 (relating to embezzlement from pension and welfare funds), sections 891-894 (relating to extortionate credit transactions), section 1084 (relating to the transmission of gambling information), section 1341 (relating to mail fraud), section 1343 (relating to wire fraud), section 1503 (relating to obstruction of justice), section 1510 (relating to obstruction of criminal investigations), section 1511 (relating to the obstruction of State or local law enforcement), section 1951 (relating to interference with commerce, robbery, or extortion), section 1952 (relating to racketeering), section 1953 (relating to interstate transportation of wagering paraphernalia), section 1954 (relating to unlawful welfare fund payments), section 1955 (relating to the prohibition of illegal *316gambling businesses), sections 2314 and 2315 (relating to interstate transportation of stolen property), sections 2341-2346 (relating to trafficking in contraband cigarettes), sections 2421-24 (relating to white slave traffic), (C) any act which is indictable under title 29, United States Code, section 186 (dealing with restrictions on payments and loans to labor organizations) or section 501(c) (relating to embezzlement from union funds), or (D) any offense involving fraud connected with a case under title 11, fraud in the sale of securities, or the felonious manufacture, importation, receiving, concealment, buying, selling, or otherwise dealing in narcotic or other dangerous drugs, punishable under any law of the United States * * *


It is not an insignificant indication of the deep-seated nature of the national infection that the rise in the crime rate this year — an “ appalling ” 8% increase according to F. B. I. Director J. Edgar Hoover — was sharpest in the smaller and medium sized areas. Except for sporadic arrests, narcotics continue as big business for the mobsters; policy rackets and bookies know no recession; bribery, extortion, and <mask> are unabated.


These subpoenas were issued by John Harlan Amen, Assistant Attorney-General of the State of New York. The petitioners assert that the Assistant Attorney-General is conducting the present proceeding before the grand jury “ for the sole purpose of finding an indictment against the petitioner John J. Halleran accusing him of the crime of <mask> in violation of the Penal Law of the State of New York * * * or in connection with a charge against said petitioner thereon of -misconduct as a public official of the Borough of Queens by way of a presentment or report to be handed up to-this Court and filed with the Department of the President of the Borough of Queens as the basis of a proceeding *945to remove said petitioner John J. Halleran from said office of Commissioner of Borough Works, and in attempt to deprive hito of his pension rights under said New York City Employees Retirement System."


Whether and to what extent to admit evidence that Gibson had been murdered just before he was to testify against Sykes was the subject of extensive discussion between the court, the prosecutor, and defense counsel during the course of the trial. The issue was first raised by the court prior to jury selection, because the trial judge was concerned that prospective jurors might have seen press coverage of Gibson’s murder, linking it to his role as a witness in the Sykes trial and implicating the defendant. Defense counsel argued that no reference at all should be made to the Gibson murder at trial because it was “wholly immaterial, separate and entirely unrelated” to the <mask> and witness tampering charges against the defendant. The prosecutor argued that testimony regarding Gibson’s death was relevant to explain why the three teenage girls came forward to the District Attorney, and that absent evidence of Gibson’s death, the jury would be left to wonder why these witnesses “turned around” on the day of the Sykes trial. The prosecutor also emphasized that defense counsel had “explored” the files related to the relocation of the girls, “which are ugly” and which showed that the girls were “difficult” witnesses who had misbehaved in the hotels where they had been placed. He urged that it would be “obscene” to allow defense counsel to impeach the credibility of the girls by cross-examining them about the money given to them by the District Attorney’s office for housing and living expenses during their relocation “without knowing the dangers involved and why all these things took place.” After hearing arguments by counsel, the court indicated that it would formulate an instruction that would inform the jury that another person had been tried and found guilty of killing Gibson, and that there was no evidence that the defendant was responsible for Gibson’s death. Thereafter, in its preliminary instructions to prospective jurors, the court informed them that there had been extensive press coverage of some of the issues in the case, including the recent trial of a man named Travis *851Ragsdale for the murder of Robert Gibson. The court advised the prospective jurors that the defendant was “not in any way accused of being involved in that murder.”


*238The Fourth Department rejected this argument and upheld the conspiracy charge, stating that where concert between two people is not an element of the object crime a conspiracy count is proper. The court observed that, with respect to obscenity in the first and second degrees, the defendant may be found guilty for his individual, singular conduct of knowingly possessing obscene materials totally separate from concert with coconspirators. Potwora distinguished those cases involving <mask> and unlawful sale of liquor, where a conspiracy charge would not ordinarily lie in addition to the substantive offense, because concert between the giver and receiver or buyer and seller is an essential element of the object crime. (People v Potwora, supra, at 211, n 1, citing United States v Sager, 49d 725, 727 [2d Cir 1931], and United States v Katz, 271 US 354.)


Each of the sixteen counts of the indictment, dealing with <mask>, charges that defendant Cilento, being a duly appointed representative of a labor organization, to wit, a trustee of the Social Security Fund of the Distillery, Rectifying and "Wine Workers’ International Union of America (A. F. of L.) and secretary-treasurer of said union, solicited, agreed to accept and did accept moneys from one Louis Saperstein, upon an understanding that Cilento should be influenced in respect of his acts, decisions and other duties as such representative. The other defendants are charged with having aided and abetted Cilento in the commission of the crime of bribery.


The courts have repeatedly and consistently refused to dismiss indictments where there were arguably excessive delays as long as the reason for the delay was legitimate. A 24-month preindictment delay did not warrant dismissal of a <mask> indictment where, during those months, the People were investigating similar acts by defendant’s fellow Department of Consumer Affairs’ inspectors. (People v Bonsauger, supra.) A 22-month preindictment delay was excused by the prosecution’s investigation of the eyewitness’ account of the crime. (People v Quince, 119 AD2d 981 [4th Dept 1986], lv denied 68 NY2d 671 [1986]; to the same effect, see, People v Frazier, 159 AD2d 1017 [4th Dept 1990], lv denied 76 NY2d 734 [1990], cert denied 498 US 873 [1990] [an 11-year delay due to the People’s efforts to corroborate an accomplice’s statement was excused]; People v Angrisani, 160 AD2d 713 [2d Dept 1990], lv denied 76 NY2d 730 [1990] [a 12-month delay was excused where it was shown that there was an ongoing investigation]; People v Rosado, 166 AD2d 544 [2d Dept 1990], lv denied 77 NY2d 843 [1991] [an 18-month preindictment delay was the result of the prosecution’s good faith investigation].)


In United States v Sun-Diamond Growers of Cal. (526 US 398 [1999]), the Supreme Court, in construing the general federal <mask> and gratuity statutes,2 explained the distinction between bribery — influencing—and illegal gratuity — rewarding — as follows: the distinguishing feature of each crime is its intent element. Bribery requires an intent “to influence” an official act or “to be influenced” in an official act, while illegal gratuity requires only that the gratuity be given or accepted “for or because of’ an official act (18 USC § 201 [b] [1] [A]; [c] [1] [A]). More specifically, bribery involves the giving of value to procure a specific official action from a public official (United States v Myers, 692d 823 [2d Cir 1982]) whereas the element of a quid pro quo or a direct exchange is absent from the offense of receiving an unlawful gratuity. In order to be a bribe, a benefit must be connected to an agreement or understanding. Thus, the bribe giver or bribe receiver must have knowledge both of the benefit and of the terms upon which it was offered or solicited.


*779How near conduct comes to the accomplishment of an intended offense depends, of course, on what is necessary to the "accomplishment” of that offense. The crime of criminal possession of a controlled substance is not committed until a person comes into physical possession of, or at least assumes dominion and control over, a controlled substance. An arson is not committed until a fire is actually set. "Completion” of the crime of <mask> in the third degree, however, requires neither that the bribe be paid nor that the purpose of the bribe be achieved. "The crimes of bribery and bribe receiving are complete upon the requisite agreement or understanding; no further act, such as the actual transfer of money, is required.” (Donnino, Practice Commentary, McKinney’s Cons Laws of NY, Book 39, Penal Law art 200, at 454; see, People v Charles, 61 NY2d 321 [1984] [taking of official action unnecessary]; People v Arcadi, 79 AD2d 845, 846 [4th Dept 1980], affd on decision below 54 NY2d 981 [1981] ["The essence of the crime (of bribe receiving) is the agreement, and the results of the agreement are immaterial”].)


Petitioner was licensed both as a boxing second and manager by the commission. His licenses were suspended as a result of <mask> charges brought against him for violation of the Rules of the State Athletic Commission. Prior to the hearing to determine the said charges, petitioner voluntarily attempted to surrender his licenses. This was refused by the commission. Subsequently, as a result of several adjournments requested by the District Attorney of this county, the licenses expired by lapse of time. Petitioner consequently avers that in view of the foregoing the commission has lost its jurisdiction to act in this matter.


“From November 2003 through August 2008, Mr. Grobart and his company — now known as Teneyck, formerly known as Neill Supply Company — engaged in a scheme to unlawfully obtain a contract from Con Edison by furnishing bribes to a Con Edison employee named James Woodason. Mr Woodason was involved in the awarding of contracts by Con Edison to companies via what was supposed to be a competitive bidding process. In 2003, Robert Rosenberg . . . brokered a deal between Mr. Grobart and Neill Supply on one hand and Mr. Woodason on the other, whereby Mr. Grobart and Neill Supply would pay a bribe to Woodason in exchange for Woodason steering a Con Edison contract to Neill Supply.” (Emphasis added.) *196Thereafter, in March of 2012, plaintiff commenced this action against Rosenberg, a cooperating witness, who has pleaded guilty to conspiracy to commit <mask> and wire fraud, pursuant to 18 USC § 371, but who had not been sentenced prior to oral argument on this motion.