| People v Moreno |
| 2012 NY Slip Op 07416 [100 AD3d 435] |
| November 8, 2012 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Kenneth Moreno, Appellant. The People of the State of New York,Respondent, v Franklin Mata, Appellant. |
—[*1] Mandery & Mandery, Mineola (Edward J. Mandery of counsel), for Franklin Mata, appellant. Cyrus R. Vance, Jr., District Attorney, New York (Christopher P. Marinelli of counsel), forrespondent.
Judgment, Supreme Court, New York County (Gregory Carro, J.), rendered August 10, 2011,convicting defendant Kenneth Moreno, after a jury trial, of three counts of official misconduct,and sentencing him to concurrent terms of one year, and judgment, same court and Justice,rendered August 8, 2011, convicting defendant Franklin Mata, after a jury trial, of three counts ofofficial misconduct, and sentencing him to concurrent terms of 60 days, with three years'probation, unanimously affirmed. The matter is remitted to Supreme Court, New York County,for further proceedings pursuant to CPL 460.50 (5) as to both defendants.
We find that the verdict was based on legally sufficient evidence. We further find that it wasnot against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]).
To establish the crime of official misconduct, the People had to prove that each defendantcommitted an act "relating to his office" that constituted an "unauthorized exercise of his officialfunctions," that he knew the act was unauthorized, and that he acted with the intent to obtain abenefit (Penal Law § 195.00 [1]). An action taken by a public servant that is "completelyunrelated to his [or her] position" is not "within the scope of his [or her] real or apparentauthority" (People v Rossi, 69 AD2d 778, 779 [1st Dept 1979], affd 50 NY2d813 [1980]).[*2]
Defendants were police officers who initially respondedto a taxi driver's 911 call reporting an intoxicated passenger who was unable to get out of the cab.Defendants assisted the passenger in getting out of the cab and escorted her to her apartment. Thepassenger complainant, who was vomiting, asked them to return and asked them to take her keys.Although not assigned to do so, and while giving their command false information as to theirwhereabouts, defendants returned three additional times that night to the complainant'sapartment. While the events that occurred in the apartment are in dispute and were the subject ofcharges of which defendants were acquitted, the evidence establishes that each defendant's intentwas, at least, to socialize with the complainant with a view toward sexual intercourse, or to assisthis partner in doing so.
Defendants' returns to the complainant's apartment occurred while they were in uniform andon duty. Their initial contact with the complainant arose from their patrol duties, in response to a911 call, whereby defendants acquired the complainant's personal information, became aware ofher vulnerable condition, and obtained her keys, permitting them to enter the building and herapartment. In addition, during one of the entries, defendants falsely assured the complainant'sneighbor that they were investigating a report of a prowler.
Therefore, the evidence supported the conclusion that defendants' acts "relat[ed] to" theirofficial position. Furthermore, the three entries at issue were unauthorized exercises ofdefendants' "official functions." While they had no duty to follow up on the complainant oncethey finalized the assignment, their actions nonetheless pertained to their official functions aspolice officers (see People vWatson, 32 AD3d 1199, 1202 [4th Dept 2006] [stopping car and kissing driver], lvdenied 7 NY3d 929 [2006]). What rendered defendants' repeated entries into the apartmentunlawful was not that they were beyond the scope of their police functions, but that their reentryhad not been authorized by a legitimate assignment (compare People v Rossi, 69 AD2d at779).
Entering a building or an apartment therein for the purpose of conducting an investigation orassisting an occupant is an official police function. Accordingly, making such an entry on thepretext of doing one of those things, when the police officer's actual intent is to obtain a personalbenefit, would constitute official misconduct.
The instances of alleged prosecutorial misconduct cited by defendants did not deprive themof a fair trial. We conclude that in her summation the prosecutor misstated the law regarding the"benefit" element of official misconduct by suggesting that mere neglect of duty would qualify asa benefit (see People v Feerick, 93 NY2d 433, 446 [1999]). However, we find thatreversal is not warranted. It was clear to the jury throughout the trial, including the summations,that the alleged benefit was not neglect of duty, but the prospect of sexual relations with thecomplainant. Furthermore, the court instructed the jury that the attorneys' summations weremerely argument, advised the jury that the court, not the attorneys, would instruct the jury [*3]on the law, and delivered a correct charge on official misconduct.The jury is presumed to have followed the court's instructions.
We have considered and rejected defendants' remaining claims of prosecutorial misconduct.Concur—Mazzarelli, J.P., Friedman, Catterson and Freedman, JJ.