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Bribe Receiving in the Second Degree

Records reflect that a man went to the accused, who was then an Assemblyman, for assistance in recovering the designation as a County Towing Garage which he had previously enjoyed. In response to this entreaty the Assemblyman made a telephone call to the County Comptroller, and requested his help in securing the sought after designation. In return, the Assemblyman allegedly demanded and received remuneration. Another was also introduced to the Assemblyman who was interested in obtaining contracts for cement work. Again a telephone call was made and again remuneration was allegedly sought and received. Eventually these criminal events came under the scrutiny of a County Grand Jury where he denied receiving money from either complainants.

He now stands accused of Grand Larceny in the Third Degree by Extortion and of two counts of Bribe Receiving in the first indictment, and in the second indictment of two counts of Perjury in the First Degree. The accused now moves for a trial order of dismissal on the grounds that the criminal evidence is not legally sufficient and for an acquittal on the grounds that the evidence is insufficient as a matter of law to prove his guilt beyond a reasonable doubt.

The court ruled that the evidence under CPL 70.10(1) is legally sufficient. However, the only testimony as to the elements of a threat and the instilling of fear is an isolated statement by the first worker. The manner in which this testimony was given, taken in context, renders it implausible that there was a threat made by the accused to the worker which instilled in the latter a fear that the accused would harm him materially with respect to his business or financial condition. This implausibility is so manifest that there exists a reasonable doubt as a matter of law as to his guilt of Larceny by Extortion. Therefore, the first indictment should be and the same is hereby dismissed.

The accused contends that the evidence adduced by the People with respect to the counts of bribery is legally insufficient, first, because corroboration is wanting and second, because the conduct alleged bears no relation to the official duties of a State Assemblyman.

Where crimes other than Bribery have been involved, the Court of Appeals has held: ‘The corroborative evidence need not show the commission of the crime; it need not show that defendant was connected with the commission of the crime. It is enough if it tends to connect the defendant with the commission of the crime in such a way as may reasonably satisfy the jury that the accomplice is telling the truth. The corroboration is not restricted to any particular point. Its connection with defendant’s own statements and denials should be considered. It may vary in its nature according to the circumstances of the particular case. Matters in themselves of seeming indifference or light trifles of the time and place of persons meeting may so harmonize with the accomplice’s narrative as to have a tendency to furnish the necessary connection between accused and the crime.’ Therefore, we hold that the corroborative evidence offered in the instant case is sufficient for the purposes of the present motion.

According to Penal Law 200.10, the crime of Bribe Receiving in the Second Degree is committed when, ‘A public servant solicits, accepts or agrees to accept any benefit from another person upon an agreement or understanding that his vote, opinion, judgment, action, decision or exercise of discretion as a public servant will thereby be influenced.’ Both the second and third counts of the first indictment accuse him of Bribe Receiving in the Second Degree committed while he was a State Assemblyman. The People contest the basic premise that a bribe must relate to the exercise of official powers or functions. From the use in the present Penal Law of the terms ‘public servant’ and action ‘as a public servant’ in place of the terms ‘public officer’ and ‘official duty’ used in the former Penal Law, they argue that the requirement of a relationship between the bribery and official conduct has been removed.

Even assuming that the accused was approached as a State Assemblyman, there is no evidence that he possessed official power with respect to County Towing Garage designations or Town public works contracts. It is no easy task to identify the official powers and duties of an Assemblyman. Beyond Article III, section 1 of the New York State Constitution which vests the legislative power in the Senate and Assembly, there is no specification of powers. Of course, under the American system of government all powers are divided up and distributed among the executive, legislative and judicial branches. In that scheme the legislative power in its purest form is the power to enact or not enact criminal laws. In the narrowest of senses then, the official action of a legislator consists of his voting upon legislation.

The evidence adduced by the People not only fails to establish any actual power possessed by the accused as an Assemblyman with respect to County Towing Garage designations and Town public works contracts, it also fails to establish any derivative power. Absent a relationship between his public office and the allegedly purchased conduct, the evidence is not legally sufficient.

State v. Bowling, is an Arizona case with a fact pattern very similar to that before this court. There the proprietor of a tavern contacted a state legislator for assistance in obtaining a liquor license. Five thousand dollars were paid to the legislator and another in return for their services and a license was obtained. The legislator was indicted for Bribe Receiving under a statute not materially different from Penal Law 200.10. In reversing the criminal conviction the appellate court wrote: ‘In attempting to show the inapplicability of the bribery statute to the subject conduct, the appellants ask in their brief: ‘Would they violate the statute by accepting remuneration for a speaking engagement on behalf of a local candidate for office? How about a legislator-attorney who represents a property holder on a variance before a local zoning board? Or a legislator-physician who accepted a free dinner to speak for or against medicare?’

‘While we can see a distinction in degree of impropriety between these postulated activities of a legislator and that presented here, we are of the opinion that the subject statute draws no discernible line in separating this type of concededly noncriminal conduct from that sought to be punished as a felony in this action. That the legislature has the power to delineate for punishment the type of conduct under consideration is not the question before us, but rather whether it had done so at the time of the commission of these acts. We hold that it had not.’

This statement is as applicable to the instant case as it was to the case in which it appeared. Therefore, the motion for a trial order of dismissal on the grounds that the evidence in support of the two Perjury counts is not legally sufficient is denied. Similarly, the motion to dismiss the two Perjury counts on the grounds that the evidence is insufficient as a matter of law to prove his guilt beyond a reasonable doubt is denied.

Cases such as petit larceny, burglary, robbery and the likes are some of the many cases which is best handled by a legal expert. Stephen Bilkis & Associates extends the services of its Nassau County Grand Larceny Lawyers, or its New York Criminal Attorneys who are all well trained in their respective fields of law.