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HALIKIPOULOS v. DILLION

April 12, 2001

NICOLE HALIKIPOULOS, PETITIONER,
V.
DENNIS DILLION, DISTRICT ATTORNEY OF NASSAU COUNTY, RESPONDENT. PARASK VLEPAKIS, PETITIONER, V. DENNIS DILLON, DISTRICT ATTORNEY OF NASSAU COUNTY, RESPONDENT.



The opinion of the court was delivered by: Spatt, District Judge.

  MEMORANDUM OF DECISION AND ORDER

These petitions for habeas corpus were filed pursuant to the provisions of 28 U.S.C. § 2241, seeking to bar the further prosecution of the Petitioners on the grounds of Double Jeopardy.

On July 25, 1996, the Petitioners were arrested for shoplifting and charged with Pettit Larceny, N.Y. Penal L. § 155.25. The Petitioners were each released on $500 police bail, and on August 6, 1996, were arraigned before Nassau County District Court Judge Joel Gewanter. Upon their plea of not guilty, Judge Gewanter continued the Petitioners' bail as previously fixed with the additional condition that they enroll in and complete a one-day "Stoplift" program, which the District Attorney describes as "a remediation and education program for beginning shoplifters."

The purpose — and indeed, the very operation — of the "Shoplift" program is not well-developed in the record before this Court. The sole evidence in the record regarding the operation and goals of the "Stoplift" program is a brochure included in the record on appeal to the Appellate Division, which reads in part:

WHAT IS STOPLIFT?

STOPLIFT is a unique remediation and education program for beginning shoplifters. During a full-day class, offenders examine their motives, learn about the legal consequences of continued shoplifting, and analyze the cost of their crimes to society-at-large.

[. . . . .]

DO PARTICIPANTS RECEIVE ANY LONG TERM HELP?

Yeseach class member meets individually with the social worker. During these meetings, the social worker will work with the shoplifter to identify any needs he/she may have. An additional referral to a community agency will be made when necessary.

Although the Petitioners' counsel objected to the "Stoplift" program as a condition of bail, citing Double Jeopardy concerns, the court observed that the program "is not considered by this Court to be punishment." On August 24, 1996, the Petitioners completed the one-day Stoplift program, including the payment of an $85 attendance fee.

The Petitioners then commenced an Article 78 proceeding in Nassau County Supreme Court, seeking to stay any further criminal prosecution on Double Jeopardy grounds. On January 7, 1997, Nassau County Supreme Court Justice Edward T. O'Brien denied the application for a stay, stating:

The Court is not persuaded that a requirement to attend a therapeutic program for shoplifters for persons charged with shoplifting is punishment without trial rather than a reasonable condition of bail as argued by the respondents. Moreover, if they are found guilty after trial, petitioners may make an application at sentencing to have their attendance at the shoplift program considered for any purpose.

The Petitioners appealed Justice O'Brien's decision to the Appellate Division, Second Department. On January 12, 1998, the Appellate Division affirmed the decision, finding that:

The program was not a punishment, as the course did not serve the goal of either retribution or deterrence. Rather, the class was, by its terms, purely remedial in nature, with the result that the double ...

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