AD1 order dated April 19, 2011, reversing lower court dismissal of Organized Crime Control Act (OCCA) counts against various defendants. Decision below: 85 AD3d 1, 923 NYS2d 34. Andrias, J. (AD dissenter), granted leave August 11, 2011.

ISSUE PRESENTED: Whether the proof before the grand jury established that the defendants’ combined web-based activities constituted the type of "ascertainable structure" needed to satisfy the definition of enterprise corruption under PL § 460.10(3). The allegation was that defendant Western Express, through its web site, facilitated the internet sale of stolen credit card data in anonymous transactions between the defendant-vendors and the defendant-buyers (including Douglas Latta). The dissent believed that the defendants’ combined activities, undertaken for their individual benefits, without any chain of command, profit-sharing, or continuity of criminal purpose beyond the scope of the criminal incidents alleged in the indictment, did not make out the "ascertainable structure" covered by the criminal enterprise statute. (Assigned counsel for Latta: Jan Hoth & Robert S. Dean, Center for Appellate Litigation, 74 Trinity Place, 11th Floor, NYC 10006.)

Proof of "ascetainable structure" in enterprise corruption prosecution