People v. Carrabotta

Lawrence S. Kerben for defendant. Richard A. Brown, District Attorney (Michael Whitney and Christine Battaglia of counsel), for plaintiff.

OPINION OF THE COURT

JOSEPH ZAYAS, J. The felony complaint in this matter originally charged defendant with unlawful practice of the profession of massage in violation of Education Law § 6512 (1), a class E felony. Upon the People's prompt application to reduce the felony complaint pursuant to CPL 180.50, the felony charge was reduced to attempted unlawful practice of the profession of massage in violation of Penal Law § 110.00 and Education Law § 6512 (1). Defendant now moves to dismiss the accusatory instrument on the ground that the foregoing attempt charge is a nonexistent crime. The court agrees that the reduced charge of attempted unlawful practice of the profession of massage is a nonexistent crime. The only real question for the court is whether the appropriate remedy is to dismiss the reduced charge and the accusatory instrument, or reinstate the felony complaint.

The Reduced Charge of Attempted Unlawful Practice of a Profession is a Nonexistent Crime

Education Law § 6512 (1), entitled "Unauthorized practice a crime," provides, in pertinent part, that "Anyone not authorized to practice under this title who practices or offers to practice or holds himself out as being able to practice in any profession in which a license is a prerequisite to the practice of the acts[^[1]] . . . shall be guilty of a class E felony." A corollary statute, Education Law § 7802, provides that a license is required for the practice of massage. The factual portion of the accusatory instrument sets forth the following allegations:

"Deponent [police officer] states that he is informed by . . . Undercover Det. #7646 that at [a specified] date, time, and place of occurrence . . . the defendant. . . did offer and agree to perform unlicense [ sic] massage to said undercover in exchange of forty dollars United States currency. Deponent states that defendant did not possess a New York State license to practice such massage."

A supporting deposition from the undercover detective accompanies the accusatory instrument, as does a certified record from the Division of Professional Licensing Services of the New York State Education Department, corroborating deponent's allegation that defendant is not licensed to practice massage therapy. On the adjourned date following defendant's arraignment on the felony complaint, the People successfully sought, pursuant to CPL 180.50, to reduce the foregoing class E felony to a class A misdemeanor, attempted unlawful practice of the profession of massage in violation of Penal Law § 110.00 and Education Law § 6512 (1). Upon the CPL 180.50 reduction, the matter was adjourned to an all purpose part and defendant promptly moved to dismiss the accusatory instrument on the ground that the foregoing attempt charge is a nonexistent crime. Because the extraordinarily expansive statutory language in Education Law § 6512 (1) ("practices or offers to practice or holds himself out as being able to practice"), as charged here, already fully embraces an attempt to practice, the court agrees that attempted unlawful practice of the profession of massage is a nonexistent crime. (See People v Lupinos, 176 Misc 2d 852, 854-855 [Crim Ct, Richmond County 1998]; People v Ching Fong, 186 Misc 2d 477, 479 [Crim Ct, NY County 2000].) In People v Jelke (1 NY2d 321, 330 [1956]), the Court of Appeals ruled that an attempt is itself already a completed crime under a substantive criminal statute, if "the statutory definition of the essence of a crime is the attempt to do a certain act" (emphasis added). The nature of the attempt is often included in the actual statutory language of the penal provision, as in the statute defining resisting arrest, Penal Law § 205.30 ("when he intentionally prevents or attempts to prevent a police officer . . . from effecting an authorized arrest" [emphasis added]); the statute defining obstructing governmental administration, Penal Law § 195.05 ("when he . . . prevents or attempts to prevent a public servant from performing an official function" [emphasis added]); the statute defining intimidating a witness in the third the profession of massage is a nonexistent crime. (Accord People v Ching Fong, supra, 186 Misc 2d at 479 [Crim Ct, NY County 2000].) This court agrees with the foregoing holding and expressly finds that attempted unlawful practice under Penal Law § 110.00 and the subsection of Education Law § 6512 (1) charged here is a nonexistent crime. As charged here, Education Law § 6512 (1) prohibits, by its express language, anyone from "practic[ing] or offer[ing] to practice or hold[ing] himself out as being able to practice" an unlicensed profession, including massage therapy (Education Law § 7802).^[2] As the court stated in Lupinos, the "extraordinarily expansive definition" of the foregoing statute "manifests a legislative intent to proscribe all aspects of the unlicenced practice of any regulated profession including an attempt to practice." (People v Lupinos, supra, 176 Misc 2d at 854-855.) Because an attempt to unlawfully practice is already contained in the "expansive prohibitory language" (id.) of the substantive crime under Education Law § 6512 (1), the People could not properly reduce the offense to a nonexistent crime, attempted unlawful practice of the profession of massage. The only remaining question for the court is whether it should dismiss the reduced nonexistent crime and the accusatory instrument (as did the court in People v Lupinos, supra, 176 Misc 2d at 855) or reinstate the felony complaint.

The Appropriate Remedy

In People v Lupinos (supra, 176 Misc 2d at 853), the People, like the People here, originally charged defendant in a felony complaint with the class E felony of unauthorized practice of the profession of massage under Education Law § 6512 (1). Subsequently, the People, again like the People here, reduced the substantive charge to attempted unauthorized practice of the profession of massage, a class A misdemeanor. Upon finding that the reduced charge constituted a nonexistent crime, the court in Lupinos (supra at 853), dismissed the attempt offense, holding that the court "lack[ed] jurisdiction to adjudicate the inception, the purported reduction, conversion and dismissal of the felony complaint are "of no legal effect and the felony complaint remains pending." (People v Minor, supra, 144 Misc 2d at 848; see also Preiser, Supp Practice Commentaries, McKinney's Cons Laws of NY, Book 11A, CPL 180.50, 2004 Pocket Part, at 49 [a purported reduction of a felony complaint which does not comply with CPL 180.50 "is a nullity and ... (v)acating the (improperly reduced) misdemeanor charge leaves the felony charge pending, which now can proceed"] [emphasis added].) In conclusion, the motion to dismiss the improperly reduced charge of attempted unauthorized practice of the profession of massage is granted inasmuch as the court agrees that it is a nonexistent crime. The motion to dismiss the accusatory instrument, however, is denied inasmuch as the felony complaint, charging the class E felony of unauthorized practice of the profession of massage under Education Law § 6512 (1), remains pending. [1] Education Law § 6512 may be violated in numerous other ways which are not charged here. (See n 2.) [2] In another subsection of Education Law § 6512 (1) which is not charged here, the prohibitory language of the statute also actually includes the word "attempt": "Anyone not authorized to practice under this title who ... attempts fraudulently to sell, file, furnish or obtain any diploma, license, record or permit purporting to authorize the practice of a profession, shall be guilty of a class E felony" (emphasis added). Likewise, Education Law § 6512 (1) prohibits an unauthorized person from "aid[ing] or abet[ting] an unlicensed person to practice a profession." [3] The court in Lupinos (supra at 855) did note, however, that notwithstanding the dismissal of the accusatory instrument, the People could present the underlying felony to a grand jury.