In People v. Western Express International, Inc., 85 AD3d 1, 923 NYS2d 34, 2011 NY Slip Op. 3136, 2011 WL 1467217 [1st Dept. Apr. 19, 2011], the court reviewed the case law applying OCCA's ascertainable structure requirement and concluded that a criminal enterprise had been created, using the structure of the legitimate firm to transform its originally legitimate operations of the financial services firm's website into a hub for criminal activity, albeit comprising only five percent of the firm's business, using the company's structure as a framework to attract others to join in the participants' criminal transactions and to shield the criminal conduct from regulatory review. (Id., Slip Op. at 6-7).
The dissent, on the other hand, citing the same cases, opined that the lack in the scheme of any organizational structure, hierarchy of personnel, system of authority, collective decision making, coordination of activities and profit sharing mechanism evinced the absence of any ascertainable structure, and observed pointedly that the criminal transactions persisted, even after the company ceased its operations, through the arm's-length transactions between individual defendants acting independently for their individual benefit. (Id., at 8-9, 11).