In the summer of 1986, Gov. Mario M. Cuomo signed New York's Organized Crime Control Act (OCCA) into law.1 Penal Law article 460 et seq., OCCA, which is basically New York's version of the federal anti-Racketeering statute (more commonly known as RICO2), took three years and many revisions to get to the governor's desk.3 OCCA's key feature was the class "B" felony of enterprise corruption, P.L. §460.20(1).4
On Jan. 15, 2013, as a part of New York SAFE (Secure Ammunition and Firearm Enforcement) Act of 2013, the legislature amended article 460 by adding a §460.22, aggravated enterprise corruption. This new offense is aimed at those criminal enterprises whose members commit armed felony offenses and traffic in illegal firearms.5
The law that Cuomo signed in 1986 was a compromise born of two competing factions: prosecutors who wanted a "tough bill like RICO," and "assembly members who wanted to limit the potential for prosecutorial abuses inherent in RICO."6
Assemblyman Daniel L. Feldman, a principal architect of the statute, in a letter to the governor, noted that OCCA had protections that RICO did not—specifically it had been refined to a point where "no one will be indicted who has not committed three different crimes," and "no one will be joined to any other defendants without having joined himself or herself to those other defendants in a substantial way, by knowingly engaging in activities designed to further the interests of a criminal enterprise."7
Notwithstanding this clear intent from the legislature, early litigants (and even courts) that interpreted OCCA relied on federal RICO case law given the absence of any state authority. While this trended downwards over the years, the death knell of resorting to federal RICO analysis was resoundingly sounded by the New York Court of Appeals on Oct. 18, 2012, when the court reminded us that OCCA was not meant to be RICO and rejected the district attorney's arguments that the U.S. Supreme Court's definition of structure in Boyle v. United States, 556 U.S. 938 (2009), should apply. See People v. Western Express, 19 N.Y.3d 652, 659 (2012) (evidence did not establish "an enduring structurally distinct symbiotically related criminal entity with which [defendants] were purposefully associated"; "OCCA, unlike RICO…specifically demands that the structure be distinct from the predicate illicit pattern").
The court's decision in Western Express really could not have come as much of a surprise given where the legislature started from in 1983. In this case, divining the legislature's intent was, in many ways, as simple as reading the preamble to the statute where the legislature had set forth detailed findings regarding its intent in crafting OCCA. See P.L. §460.00.8 As the court noted, "[t]he organized crime control act is a statute of comparable purpose [to that of RICO] but tempered by reasonable limitations on the applicability, and with due regard for the rights of innocent persons."9
The enterprise corruption statute was designed to combat criminal enterprises, whose "sophistication and organization make them more effective at their criminal purposes." Penal Law §460.00; see People v. Besser, 96 N.Y.2d 136, 142 (2001). The legislature observed that preexisting criminal laws were "not adequate" to address the "continuing growth of organized criminal activities." Penal Law §460.00. The governor's Approval Memorandum noted prior criminal laws were "developed during a less complicated era," when crimes were generally committed in isolation and by individuals who were not part of an organized group," but cautioned that "[c]rimes committed by individuals who engage in a brief series of criminal acts in an ad hoc and unstructured group are not subject to prosecution under [OCCA]."10
While OCCA is, to be sure, concerned with "organized crime," the legislative findings emphasize that "the concept of criminal enterprise should not be limited to traditional criminal syndicates or crime families." Penal Law §460.00 at ¶3.11
Due to concerns about overzealous federal prosecutions, the legislature provided two procedural protections for possible minor participants.12 First, OCCA provides a court with the power to dismiss a charge of enterprise corruption in the interest of justice upon a finding that "prosecution of that count is inconsistent with the stated legislative findings" in article 460. See CPL §210.40(2).13 Second, OCCA requires that when filing an indictment containing a charge of enterprise corruption, the district attorney personally submit a special information to the court that "attests that he has reviewed the substance of the evidence presented to the grand jury and concurs in the judgment that the charge is consistent with [the] legislative findings in said article." CPL §200.65.14
Penal Law §460.20(1), provides that a person "having knowledge of the existence of a criminal enterprise and the nature of its activities, and being employed by or associated with such enterprise," can commit the crime of enterprise corruption in three ways, if he or she:
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