5. A person is guilty of aggravated enterprise corruption when he or she commits the crime of enterprise corruption and two or more of the acts that constitute his or her pattern of criminal activity are class B felonies or higher, and at least two acts are armed felonies or one act is such an armed felony and one act is a violation of subdivision two of §265.17 of Penal Law or one act is a class B violent felony and two are violations of subdivision two of §265.17. Aggravated enterprise corruption is a class A-I felony that carries a mandatory minimum sentence of 15 years to life. Cuomo signed the bill soon after it passed in the Assembly, and it is effective March 16, 2013. One prosecutor with experience in OCCA litigation opined that the addition of the aggravated enterprise corruption statute shows that there is no dispute that the legislature always intended enterprise corruption apply to any criminal enterprise and not just violent ones—a heretofore standard defense argument in attacking "white collar" indictments, despite the absence of a requirement that any of the criminal acts be violent offenses.
6. Tales From the Sausage Factory, supra note 3, at p. 120.
7. July 18, 1986 Feldman letter to Evan Davis, counsel to Cuomo. The legislature amended the joinder provisions of the Criminal Procedure Law to assuage these concerns. C.P.L. §200.40(1)(d)(i) provides that defendants who are not charged with enterprise corruption may not be joined with those who are, even if the they committed some crimes that amounted to pattern acts charged in the enterprise. §200.40(1)(d)(ii) provides that no offense may be charged in the indictment that is not also charged as a pattern act. Finally, joinder of both the defendants and the substantive offenses is permissible only if, without relying on the enterprise corruption count, each defendant could have been jointly charged under C.P.L. §200.40(1)(a)(b) or (c) with at least one other defendant in an indictment charging at least one pattern act.
8. At oral argument one of the judges of the court noted it was clear that the legislature's intent was drafting a statute that was not as broad as RICO. http://www.nycourts.gov/ctapps/arguments/2012/Sep12/Sep12_OA.htm (People v. Western Express, No. 156, Sept. 5, 2012).
9. People v. Western Express, 19 N.Y.3d 652 at n. 3.
10 See Bill Jacket for L. 1986, Ch. 516, Governor's Approval Memorandum for Assembly Bill No. 11726 (July 24, 1986). One early example of an "ad hoc association" enterprise corruption, which ended in a dismissal, was People v. Yarmy, 171 Misc.2d 13 (Sup. Ct. N.Y. Co. 1996). Yarmy involved one defendant who provided firearms to a second defendant who occasionally sold them with assistance of others.
11. See People v. Wakefield Financial, 155 Misc.2d 775, 786 (Sup. Ct. N.Y. Co. 1992) (recognizing that the legislature intended the statute to cover any form of organized criminal activity conducted through the structure of a criminal enterprise, "notwithstanding the absence of La Cosa Nostra" involvement); People v. Joseph Stevens, 31 Misc.3d 1223 (A), 2011 WL 1757051 (Sup. Ct. N.Y. Co. 2011) (concept of criminal enterprise should not be limited to traditional criminal syndicates or crime families, and may include persons who join together in a criminal enterprise for the purpose of corrupting legitimate enterprises). Indeed, OCCA has often been used successfully to prosecute a huge range of criminal activity, including white-collar defendants, and the appellate courts have repeatedly affirmed these convictions. See People v. Nicelli, 74 A.D.3d 1235 (2d Dept. 2010) (funeral director who was one of several participating in a human-tissue harvesting enterprise); People v. Thomas, 55 A.D.3d 357 (1st Dept. 2008) (securities firm); People v. Marasa, 32 A.D.3d 369 (1st Dept. 2006) (group committing stock fraud); People v. AS Goldmen, 9 A.D.3d 283 (1st Dept. 2004) (brokerage firm); People v. Basbus, 68 A.D.3d 441 (1st Dept. 2009) (doctor working in no-fault insurance clinic).
12. In enacting the statute, the legislature cautioned that: "this article is not intended to be employed to prosecute relatively minor or isolated acts of criminality which, while related to an enterprise and arguably part of a pattern as defined in this article, can be adequately and more fairly prosecuted as separate offenses. Similarly, particular defendants may play so minor a role in a criminal enterprise that their culpability would be unfairly distorted by prosecution and punishment for participation in the enterprise." Penal Law §460.00.
13. See, e.g., People v. Salzarulo, NYLJ, Feb. 14, 1996, p. 30, col. 6 (enterprise-corruption charge dismissed as to one person on "the bottom tier" of the enterprise, who was a "late comer" and committed only three criminal acts during a brief two-month period).
14. "The legislature inserted this provision, CPL 200.65, to assure that the indictment has received personal review and concurrence in the charge by the chief prosecuting officer of the jurisdiction." People v. Gary, 34 Misc.3d 523, 527 (Sup. Ct. Nassau Co. 2011). The district attorney's failure to timely file a certification is not fatal where evidence establishes that the district attorney had knowledge of the evidence and approved the indictment. Gary, 34 Misc.3d at 530.
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