| People v Gordon |
| 2010 NY Slip Op 03145 [72 AD3d 841] |
| April 13, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Diane Gordon, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Monique Ferrell of counsel), forrespondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (McGann,J.), rendered June 12, 2008, convicting her of bribe receiving in the third degree, officialmisconduct (two counts), receiving bribes by members of the Legislature, receiving reward forofficial misconduct in the second degree (two counts), and asking, receiving, agreeing, orconsenting to receive unlawful fees and payments (two counts), upon a jury verdict, andimposing sentence.
Ordered that the judgment is affirmed.
The defendant, a former member of the New York State Assembly, stands convicted of eightoffenses, including bribe receiving in the third degree. The defendant's convictions stem from aseries of meetings in which she was recorded promising to use her influence to assist a real estatedeveloper in bidding for the right to purchase city-owned land in exchange for the developer'sagreement, inter alia, to give her a house either for free or at a greatly reduced price.
The defendant challenges the legal sufficiency of the evidence supporting her convictions ofofficial misconduct (two counts), receiving reward for official misconduct in the second degree(two counts), and asking, receiving, agreeing, or consenting to receive unlawful fees andpayments (two counts). The defendant contends that her convictions of these offenses must bereversed because criminal liability for soliciting a benefit cannot be predicated upon an allegedviolation of her public duty as defined by the Code of Ethics set forth in Public Officers Law§ 74 (hereinafter the Code). We disagree. In People v Garson (6 NY3d 604 [2006]), the Court of Appeals heldthat a judge's acceptance of a benefit for the violation of his duty as a public servant, as definedby the Rules of Judicial Conduct, could support a conviction of receiving reward for officialmisconduct in the second degree in violation of Penal Law § 200.25. In concluding thatthe People could rely upon the Rules of Judicial Conduct to prove the element of a judge's dutyas a public servant, the Court of Appeals held that "[t]he Rules set forth a constitutionallymandated duty upon the judiciary and, when combined with the additional factor of receiving areward, a violation of that duty may serve as a basis for prosecution under Penal Law §200.25" (People v Garson, 6 NY3d at 606). Similarly, the Code prescribes the standardsof conduct to which State employees, including members of the Legislature, must adhere. Themandatory rather than advisory nature of the Code is [*2]underscored by Public Officers Law § 74 (4), which providesthat any individual "who shall knowingly and intentionally violate any of the provisions of thissection" may be subjected to penalties, including removal from office. Consequently, the Codeimposes a mandatory duty of conduct upon members of the Legislature, and proof of a violationof the standard of conduct imposed by the Code, coupled with evidence of receiving a reward forsuch violation, may serve as the basis for the imposition of criminal liability. Viewing theevidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d620 [1983]), we find that it was legally sufficient to establish that the defendant violated her dutyas a public officer as set forth in the Code in exchange for a benefit, and thus support herconviction of the offenses of official misconduct (two counts), receiving reward for officialmisconduct in the second degree (two counts), and asking, receiving, agreeing, or consenting toreceive unlawful fees and payments (two counts) (see People v Garson, 69 AD3d 650 [2010]).
Moreover, upon the exercise of our independent factual review power pursuant to CPL470.15 (5), we are satisfied the defendant's convictions were not against the weight of theevidence (see People v Romero, 7NY3d 633 [2006]). The issue of whether the affirmative defense of entrapment wasestablished was an issue of fact for the jury (see People v McGee, 49 NY2d 48, 61[1979]; People v Wicht, 48 AD3d491 [2008]; People v Castro, 299 AD2d 557, 558 [2002]), and the evidencepresented at trial, which included the defendant's recorded conversations with the developer,supported the jury's rejection of that affirmative defense (see People v Kubasek, 167AD2d 424 [1990]; People v Hochberg, 62 AD2d 239, 248-249 [1978]).
We agree with the defendant's contention that the trial court erred in admitting evidence ofher prior bad acts on the People's direct case in violation of the rule set forth in People vMolineux (168 NY 264 [1901]). However, the error was harmless beyond a reasonabledoubt because there was overwhelming evidence of the defendant's guilt, and no significantprobability that the error contributed to her conviction (see People v Crimmins, 36 NY2d230, 247 [1975]).
The defendant further contends that the court should have instructed the jurors that if theyfound her not guilty of bribe receiving in the second degree by reason of entrapment, they shouldstop deliberations and acquit her of the remaining counts of the indictment. Since the defendantraised no objection to the court's charge, this claim is unpreserved for appellate review (seeCPL 470.05 [2]). In any event, the court's charge properly made the absence of entrapment aspecific element of each of the submitted charges (see 1 Charges to the Jury andRequests to Charge in Criminal Case in New York § 5:12).
The defendant's remaining contention is without merit. Mastro, J.P., Skelos, Eng and Roman,JJ., concur.