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CPL § 200.70(2)(b)

This is a criminal case where Defendant, a former Police Chief of Metro-North Commuter Railroad Company, has been indicted and charged with computer trespass in violation of Penal Law § 156.10(2), unauthorized use of a computer in violation of PL § 156.05), falsifying business records in the first degree in violation of PL § 175.10 and official misconduct in violation of PL § 195.00(1). A New York Criminal lawyer said that All charges arise from the alleged misuse of the New York State Police Information Network (NYSPIN), a computer system containing individual criminal histories. Defendant moves for an order seeking dismissal of the indictment on multiple grounds.

A public servant, to be guilty of official misconduct, must intend to obtain a benefit to himself. While PL § 10.00(17) defines a benefit as “including a gain or advantage to [another] person”, a fair reading of these words compels the conclusion that the benefit to another person must be at least indirectly of benefit to the accused, as, for example, a benefit to the accused’s family, to a friend or to the accused’s business., by using the words “and includes” rather than the word “or” limits “benefit” to a gain or advantage to the beneficiary.

There is nothing in the case law that contradicts this construction of PL § 195.00. In 1969, an upstate trial court recited the history of the statute and its predecessor provisions and held that the crime of official misconduct requires “[a] culpable motive which must be directly connected with the duty which the public servant violated and such motive must be of a venal nature”. It is a specific intent to obtain a benefit or to injure another person or deprive another person of a benefit”. A few courts have fleshed out the statutory definition of “benefit” in the context of bribery and bribe receiving under Penal Law Article 200.

In all cases, the “benefit” was required to be more than merely tangential and had a nexus personal to the defendant. Counts 10, 33 and 39 of the indictment charge defendant with committing the crime of official misconduct “with intent to obtain a benefit for the Metro-North Commuter Railroad”, defendant’s employer. Defendant’s alleged intent to benefit the Railroad does not spell out a benefit to himself, even remotely. Nor was there evidence before the grand jury of a benefit to defendant.

Accordingly, the evidence presented to the grand jury was insufficient to support the official misconduct charges and the factual allegations of those three counts fail to state the sex crimes charged. The official misconduct charges are hereby dismissed.

Defendant challenges the factual sufficiency of each count of the indictment including the counts charging computer trespass and unauthorized use of computer.

CPL § 200.50(7)(a) requires that each count of an indictment contain “[a] plain and concise factual statement which asserts facts supporting every element of the offense charged and the defendant’s commission thereof with sufficient precision to clearly apprise the defendant of the conduct which is the subject of the accusation”. CPL § 200.70(2)(b) bars amendment of an indictment for the purpose of curing legal insufficiency of the factual allegations.

Under the law, a person is guilty of computer trespass when he knowingly uses or causes to be used a computer or computer service without authorization and: 2. he thereby knowingly gains access to computer material.

Comparison of the statute with the indictment shows that the statutory requirement, “he thereby knowingly gains access to computer material”, is not supported by factual allegations in any of the computer trespass counts.

Again, comparing the statute with the indictment, it appears that the statutory language, “and the computer utilized is equipped or programmed with any device or coding system, a function of which is to prevent the unauthorized use of said computer or computer system”, is unsupported in the factual portions of the charges of unauthorized use of a computer.

An indictment traditionally serves three purposes: the constitutionally based right of an accused to fair notice of the accusations made against him, the protection against double jeopardy, and the assurance that the crime for which a defendant is brought to trial is the one for which he was indicted. Defendant attacks the indictment on the grounds that the computer counts fail to comply with CPL § 200.50(7)(a) and fail to accord him fair notice.

The People acknowledge that each of the disputed 34 counts is defectively pleaded, but they maintain that the defects are merely technical and dismissal is not required under the circumstances herein. The People note that the grand jury heard sufficient evidence and received proper instruction on all elements of each of the 34 computer crimes.

A review of the cases relied on by the People shows that no court has overlooked pleading insufficiencies as fundamental as those herein. In every case, a relatively minor omission or lack of specificity was found to be remedied by notice supplied in the bill of particulars or by the record as a whole. In addition, in all cases cited by the People, the issue was not raised until after trial or plea.

In a leading case, the Court of Appeals upheld a charge of failure to file a tax return where the word “willfully” was omitted in the one count of a multicount indictment to which defendant pled guilty. No timely motion to dismiss the indictment on the ground of pleading insufficiency had been made, and, of critical importance, the indictment viewed in its entirety indicated that the People intended to prove willfulness.

The People also point out that defendant had been served with a prior indictment, properly pleaded but dismissed on other grounds, and thus had notice of the acts upon which the People rely. But a dismissed indictment is a nullity and a defendant should not be charged with receiving notice conveyed by a document no longer part of the record. More important, the two indictments are not identical. While there is some overlap, the first criminal indictment charged crimes of coercion in the first and second degrees and falsifying business records in the second degree not charged in the second indictment.

A comparison of the requests in the first demand for a bill of particulars with the requests in the second demand reveals a significant difference. The first demand has in it questions relating to the elements pleaded in the first indictment but missing from the second indictment; the second demand does not. The inference to be drawn is that defendant was not aware of the extent of the charges against him in the second indictment.

The People also argue that the defendant, in his motion papers, does not dispute the factual allegations in the indictment but intends to assert at trial a defense under PL § 156.50(1) that he had “reasonable grounds to believe that he had authorization to use the computer”.

Under the circumstances at bar, the defendant may well have been prejudiced by the pleading omissions in the indictment. This is not a case where a technical deficiency can be remedied from the record as a whole since neither the bill of particulars nor any other document supplies the missing facts. It must be concluded that defendant has not received fair notice of the grand larceny charges of computer trespass and unauthorized use of a computer and that those counts in the indictment do not substantially conform to the requirements of CPL § 200.50(7)(a).

Defendant was originally indicted on July 13, 1988 as a result of a direct grand jury presentation, but the indictment was dismissed by order dated January 10, 1989 with leave to the prosecution to re-present. At the time the matter was resubmitted, no action was pending against defendant in a local criminal court, or in any court, and thus the prosecution was under no statutory duty to inform defendant that a second grand jury presentation against him would be made. Nevertheless, as defendant acknowledges, the prosecution did inform defendant and inquired whether he wished to testify.

Defendant seeks dismissal of the indictment on the ground that the Special Prosecutor was guilty of overreaching when he offered to refrain from indicting if defendant would resign his office of Chief of the Metro-North Police Department. In addition, defendant argues that he is entitled to enforcement of the People’s offer.

In this case, defendant declined the prosecution’s offer, and was subsequently indicted on July 13, 1988. Shortly thereafter, defendant was discharged by his employer for purportedly improper conduct unrelated to the charges in the indictment. Defendant now seeks what he considers to be enforcement of the originally proffered bargain even though he never accepted the prosecution’s offer and it expired months ago when the prosecution sought indictment.

Defendant argues that any superseders or transfers of the authority of elected prosecutors must be “fastidiously circumscribed” and that the definition of “corrupt acts” in Executive Order No. 55 requires charges, not present in this indictment, of venality or use of the NYSPIN computer for personal gain.

The words “corrupt acts and omissions” are not, strictly speaking, defined in Executive Order No. 55, I(a). Rather, paragraph III(c) of Section 1.55 lists five categories which ” ‘corrupt acts and omissions’ includes, but is not limited to”. The first category is “any act or alleged act by a public servant relating to his office but constituting an unauthorized exercise of his official functions”. Defendant allegedly made false entries in the NYSPIN Criminal History Log of the Metro-North Police Department with intent to conceal the commission of the crimes of computer trespass and unauthorized use of a computer. Thus, defendant is mistaken when he argues that the indictment does not contain charges of venal acts committed for personal gain.

Defendant’s challenge to the third prong of the jurisdictional grant under Executive Order No. 55, § 1.55, paragraph I(a), is also unavailing. The Court finds, consistent with appellate authority, that the indictment charges crimes which are related to law enforcement and the administration of criminal justice.

When considering an attack on the Government’s exercise of its broad discretion in the decision whether to prosecute a particular case, we presume that that choice has been made in good faith for reasons of sound governmental policy. To overcome this presumption, defendants bear a heavy burden. Only if a defendant can establish prima facie “(1) that, while others similarly situated have not generally been proceeded against because of conduct of the type forming the basis of the charge against him, he has been singled out for prosecution, and (2) that the government’s discriminatory selection of him for prosecution has been invidious or in bad faith, i.e., based upon such impermissible considerations as race, religion, or the desire to prevent his exercise of constitutional rights[,]” does the burden shift to the government to demonstrate that the prosecution was not premised on an invidious objective.

The underlying right asserted by petitioner is to equal protection of the laws as guaranteed by the 14th Amendment and the New York State Constitution, one of the governing principles of our society. And, in its consideration of the merits of such a claim, as it would on a suppression motion, a court must conduct a hearing if, on the papers before it, a strong showing of selective enforcement, invidiously motivated, appears….

In response to defendant’s claim of selective prosecution, the prosecution points out that the statutes under which defendant stands charged were enacted only recently. The prosecutor asserts that a chief of detectives in an upstate police department who apparently misused the computer was permitted by an upstate prosecutor to resign to avoid prosecution.

Defendant has sought to obtain police records to establish that others similarly situated have engaged in conduct similar to that charged here and have not been prosecuted. However, even assuming arguendo that the records he seeks would support the “unequal hand” requirement of Klein, supra, defendant’s claim would still fail. To be entitled to a hearing, defendant would also need to make a showing that the selective application of the law was deliberately based upon a racial, religious or other impermissible standard. There is no showing of bad faith in the record at bar. Defendant’s allegations of invidious prosecutorial motive are unsubstantiated, inapposite or refuted by the prosecution.

Accordingly, the application to dismiss this indictment for invidious selective prosecution is denied.

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