| People v Hutchins |
| 2016 NY Slip Op 01211 [136 AD3d 1148] |
| February 18, 2016 |
| Appellate Division, Third Department |
[*1](February 18, 2016)
| The People of the State of New York, Respondent, v Theodore Hutchins, Appellant. |
O'Connell and Aronowitz, Albany (Scott Iseman of counsel), for appellant.
James R. Farrell, District Attorney, Monticello, for respondent.
McCarthy, J. Appeal from a judgment of the County Court of Sullivan County(LaBuda, J.), rendered January 8, 2014, upon a verdict convicting defendant of thecrimes of official misconduct (two counts) and coercion in the first degree (twocounts).
At all relevant times, defendant was on the board of trustees for the Village ofMonticello and John LiGreci was the Village Manager. Defendant and LiGreci werecharged, in a sealed indictment, with acting in concert to commit two counts of officialmisconduct and two counts of coercion in the first degree based on two directives thatLiGreci gave to two different Police Chiefs. Both directives pertained to the employmentapplication of a citizen (hereinafter the candidate) seeking to become a police officer forthe Village. Following a jury trial, defendant was found guilty as charged. He wassentenced to six months in jail, five years of felony probation and 500 hours ofcommunity service. Defendant now appeals. Upon our conclusion that there is legallyinsufficient evidence in regard to multiple elements for each conviction, we reverse.
Evidence is legally sufficient when, "viewing the evidence in the light mostfavorable to the prosecution," it provides "a valid line of reasoning and permissibleinferences from which a rational jury could have found the elements of the crime provedbeyond a reasonable doubt" (People v Reed, 22 NY3d 530, 534 [2014] [internalquotation marks and citations omitted]). A person commits official misconduct when,"with intent to obtain a benefit or deprive another person of a benefit[,] . . .[he or she] commits an act relating to his [or her] office but constituting an unauthorizedexercise of his [or her] official functions, knowing that such act is unauthorized" (PenalLaw § 195.00 [1]; see People v Barnes, 117 AD3d 1203, 1206 [2014]). "Aconviction for official misconduct must be supported by proof that a defendant knew that[the] acts were unauthorized, so as to 'negate the possibility that the misconduct was theproduct of inadvertence, incompetence, blunder, neglect or dereliction of duty, or anyother act, no matter how egregious, that might more properly be considered in adisciplinary rather than a criminal forum' " (People v Barnes, 117 AD3dat 1206, quoting People v Feerick, 93 NY2d 433, 448 [1999] [citation, bracketsand emphasis omitted]).
To commit coercion in the first degree, a person must commit coercion in the seconddegree and compel or induce the victim to "[v]iolate his or her duty as a public servant"(Penal Law § 135.65 [2] [c]). A person commits coercion in the seconddegree when "he or she compels or induces a person to engage in conduct which thelatter has a legal right to abstain from engaging in . . . by means of instillingin him or her a fear that, if the demand is not complied with, the actor or another will. . . [u]se or abuse his or her position as a public servant by performingsome act within or related to his or her official duties . . . in such manner asto affect some person adversely" (Penal Law § 135.60 [8]). Thus, proof of adefendant's guilt of either official misconduct or coercion in the first degree based on atheory of accessorial liability for an executive's order to a subordinate employee requiresproof beyond a reasonable doubt that, objectively, the executive did not have theauthority to give such a directive and further that, subjectively, the defendant knew thatthe executive lacked such authority.
Defendant's convictions are premised upon LiGreci's directive to then Police ChiefDoug Solomon to cease a background check on the candidate and his subsequentdirective to subsequent Police Chief Mark Johnstone to provide him with answers toquestions posed by the village attorney that regarded a potential lawsuit related to the police department'sbackground check.[FN1] The People did not cite or introduceinto evidence any codified laws, regulations, [*2]policiesor rules that delineated a village manager or police chief's respective authority in regard to employmentbackground checks or that related to the instances in which a police chief can, or cannot, disregard his or her supervisor's directive to answerquestions.[FN2]Accordingly, the People were left with the task of proving beyond a reasonable doubtthat LiGreci lacked the authority to give such orders despite the absence of anycodification that supported that contention; relatedly, they were also tasked with provingbeyond a reasonable doubt that defendant did not have a subjective good faith belief thatLiGreci had the authority to give such directives (see generally People v Michaels, 132 AD3d 1073,1076-1077 [2015]; People vRios, 107 AD3d 1379, 1381-1382 [2013], lv denied 22 NY3d 1158[2014]).
We first turn to the proof regarding the executive authority over background checksof candidates seeking employment as police officers of the Village. Multiple witnessesfamiliar with the functioning of the Village's government confirmed that the VillageManager—LiGreci—had the sole authority to make hiring decisions for themunicipal departments, including the police department. Further, it is uncontested thatthe Village Manager serves as a supervisor to the Police Chief. In addition, LiGrecitestified that it was within his authority as the Village Manager to halt the backgroundcheck.
During his testimony, Solomon admitted that no law tasked him with theresponsibility to conduct background checks. Further, he never indicated that the Villagehad vested him with the authority to conduct background checks. To the contrary,Solomon explained that he had created the background check procedure used for policeofficer candidates. Considering this evidence, no rational juror could conclude thatLiGreci's directive to halt the background check was unauthorized.[FN3] Further, even assumingthat the record contained legally sufficient proof to establish this element, we nonethelessconclude that the record contains no evidence that defendant had the requisite knowledgethat the directive was unauthorized. Considering the proof that LiGreci's power to hirepersonnel was well known within the Village and the fact that the record contains noevidence that defendant was ever informed of Solomon's supposed duty to conductbackground checks, there was legally insufficient evidence to establish the requisitemental state (see Penal Law § 20.00; People v Michaels, 132AD3d at 1076). Accordingly, we [*3]reverse defendant'sconvictions of official misconduct under count 7 of the indictment and coercion in thefirst degree under count 8 of the indictment.
We reach a similar conclusion regarding LiGreci's directive toJohnstone—Solomon's successor as Police Chief—to provide answers toquestions related to the candidate's background check, which was the subject of potentialcivil litigation. When Johnstone was asked why he felt that he was entitled to disregard asupervisor's directive to provide answers to questions posed by the village attorney,[FN4] Johnstone explained that he had soughtcounsel from Sullivan County District Attorney James Farrell and, as a result, knew thatthere was a pending criminal investigation of the candidate and of LiGreci. Johnstoneaverred that, based on the existence of such criminal investigation, he had a duty not toanswer the questions. Contrary to Johnstone's reasoning, however, the policedepartment's prior human resources work was not the subject of the criminalinvestigation, and there would be no legitimate reason to keep information related totheir human resource activities confidential from the Village.
The remainder of Johnstone's testimony renders it unreasonable to conclude that hebelieved that he had a legal right or obligation to refuse to answer the questions. AsJohnstone testified, when a different supervisor gave him a directive to answer the samequestions for LiGreci, Johnstone immediately complied.[FN5] In regard to this compliance, Johnstoneexplained: "If you don't follow a direct order[,] you are considered insubordinate and. . . suspended." The record is silent as to any explanation from Johnstonethat could reasonably reconcile his testimony that it was his "legal right not to answer[the questions]" when LiGreci directed him to do so but that it would have been"insubordinat[ion]" not to answer the questions when a different supervisor made theexact same request.
Finally, the record contains no proof that could support a reasonable conclusion thatdefendant knew, prior to LiGreci's directive, that a criminal investigation had beencommenced that deprived LiGreci of the authority to have Johnstone answer thequestions (see generally Penal Law § 20.00; People vKaplan, 76 NY2d 140, 146 [1990]). To the extent that proof was presented on theissue of knowledge, it tended to suggest the exact opposite conclusion—thatdefendant remained ignorant of the apparently confidential criminal investigation.Johnstone testified that he never informed LiGreci of the ongoing criminal investigation,and he explained that he did not want certain people to learn about the criminalinvestigation, including defendant. Accordingly, the only relevant proof in the record isthat, at a minimum, the police department was attempting to keep LiGreci and defendantignorant of the criminal investigation. Further, the [*4]only reasonable inference to draw from Johnstone'stestimony was that he understood defendant to be unaware of the criminal investigationat that point in time. Accordingly, no rational juror could find that defendant knew thatLiGreci was not authorized to give the directive due to an ongoing criminal investigation(compare People v Robinson, 60 NY2d 982, 986 [1983]). Based on theforegoing, we reverse defendant's remaining convictions of official misconduct undercount 9 of the indictment and coercion in the first degree under count 10 of theindictment. Given our conclusion that the evidence was legally insufficient in regard toeach of defendant's convictions, his remaining contentions are rendered academic.
Peters, P.J., Rose and Lynch, JJ., concur. Ordered that the judgment is reversed, onthe law, and indictment dismissed.
Footnote 1:We reject the People'sinvitation to consider a new theory of prosecution, raised for the first time on appeal, thatdefendant's directives to LiGreci are the unauthorized acts. The indictment, the case thatthe People presented at trial and the charges that were given to the jury allunambiguously identify LiGreci's directives to the Police Chiefs as the relevant actsgiving rise to the alleged crimes. Accordingly, the People's argument is unpreservedgiven that the People never sought jury instructions that would permit the jury toconsider that theory (see CPL 470.05 [2]; People v Morrison, 110 AD3d 1380, 1381 [2013], lvdenied 22 NY3d 1201 [2014]). Further, raising a theory of prosecution after theconclusion of a trial deprives a defendant of fair notice, the meaningful opportunity topresent a defense at trial and of the right to have a jury decide the facts that subject thedefendant to criminal liability (see generally Apprendi v New Jersey, 530 US466, 483-484 [2000]; People v Grega, 72 NY2d 489, 495-496 [1988]). In anyevent, the People's newly raised theory is without merit. The record contains no proofthat could reasonably be construed as delineating the limitations of a village trustee's authority to give directives to a village manager. Therefore, no rationalfactfinder could conclude, beyond a reasonable doubt, that defendant's directives toLiGreci were unauthorized.
Footnote 2:We note that policydocuments that the police department created itself are insufficient to establish that theVillage vested the police department or Police Chief with any particular authority.
Footnote 3:To the extent thatLiGreci's stated justification for halting the background check was that it had proceededin an inappropriate manner, we note that a recorded telephone conversation relating tothe background check revealed an officer inquiring into topics such as whether thecandidate associated with "undesirable people" and whether the candidate lived with aparamour "out of wedlock." Further, Solomon admitted that he had already made up hismind about the candidate's qualifications before beginning the background check, andagreed that "no matter how long any investigation lasted, no matter how many peoplewere interviewed, no matter how many documents were retrieved [and] no matter howmany psychological examinations were performed, nothing was going to change [his]opinion" that the candidate was unsuitable to be a police officer.
Footnote 4:Inasmuch as the crime ofcoercion in the second degree required additional proof that LiGreci instilled inJohnstone a fear of LiGreci creating an adverse consequence for Johnstone if he failed tocomply with the order (see Penal Law § 135.60 [8]), theuncontradicted proof shows that Johnstone did not believe that LiGreci had made effortsto instill such fear; when asked whether he was ever threatened by LiGreci in respect toanswering the questions, Johnstone unequivocally answered "no."
Footnote 5:Were we to focus on anelement unique to coercion in the second degree, this evidence leads to the singlereasonable conclusion that Johnstone was "compel[led] or induce[d]" to answer thequestions by this supervisor, and not by LiGreci, whose order Johnstone had disregarded(Penal Law § 135.60).