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Argued May 29, 2007; decided June 28, 2007
Matter of Polito v Walsh, 32 AD3d 953, affirmed.
{**8 NY3d at 685} OPINION OF THE COURT
Smith, J.
Petitioners were prosecuted in federal court for murder in aid of racketeering. A jury convicted them, but a federal Court of Appeals reversed the conviction and dismissed the charge because the Government had failed to prove the "aid of racketeering" element of the crime. A New York grand jury then indicted petitioners for murder. [*2]
Petitioners brought this proceeding to prohibit the state-court prosecution, claiming that it violates CPL 40.20 (1), one of New York's double jeopardy statutes. We hold that the statute has not been violated.
Facts and Procedural History
Petitioners were indicted by a United States grand jury on eight counts growing out of a shooting in which Sabatino Lombardi was killed and Michael D'Urso was wounded. The Government claimed that petitioners had hired hit men to kill Lombardi and D'Urso, and that in the case of Lombardi the hit men had succeeded. The count of the indictment with which we are now concerned, captioned "Murder in Aid of Racketeering," alleged that petitioners had murdered Lombardi; that they had done so "for the purpose of gaining entrance to and maintaining and increasing position in the Genovese family"; that the Genovese family was "an enterprise engaged in racketeering activities"; and that petitioners had therefore violated 18 USC

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