clear from the face of the statute that the legislature did not believe that such intent could be found solely by establishment of the first two elements.
None of the authorities cited by defendant supports its contention. The closest is the following language defendant quotes from Sears, Roebuck & Co. v. American Plumbing & Supply Co., 19 F.R.D. 334 (E.D. Wis. 1956), involving a situation in which a defendant supplier paid secret commissions to the purchasing agent of the plaintiff:
People are presumed to intend the natural and probable consequences of their acts. Payment of secret commissions under such circumstances can have only one purpose, namely, that of making the agent of the adverse party beholden to the person giving the secret commissions.
19 F.R.D. at 343 (emphasis added). The circumstances of that case, however, involved secret payments for no return consideration that were simply clear bribes. The agent there did not perform any job such as Alexander performed here. That case, furthermore, was decided under Wisconsin common law, not N.Y. Penal Law § 180.00. Moreover, the court's language on which defendant relies, that "people are presumed to intend the natural and probable consequences of their acts," was struck down as a jury instruction 23 years after this decision in Sandstrom v. Montana, 442 U.S. 510, 61 L. Ed. 2d 39, 99 S. Ct. 2450 (1979), because, according to the Supreme Court, where intent is an element of an offense, the trier of fact must be made aware that no irrebuttable presumption of it is established simply by a person's acts.
I agree with defendant that the situation of the instant case -- i.e., a party's hiring of an employee of a second party in a position to influence business without the latter's consent -- is itself a factor from which it may be inferred that such was done with the intent to influence business affairs.
I disagree, however, that those circumstances along, without more, suffice as clear and convincing evidence to prove such intent. In this case, there is no more.
Although defendant relies mainly on its contention concerning intent as discussed above, it does, nevertheless, point to additional evidentiary factors which it maintains support a finding of the requisite intent. I find, however, that the facts are otherwise. Thus, while defendant claims that Gonzalez told Alexander about the availability of the STAT job before he knew she was looking for a second job, the evidence does not support the claim. The testimony was inconclusive as to whether he approached her or vice-versa; moreover, even had he made the initial overture, it would hardly show a nefarious intent. Similarly, although defendant claims her hiring was done with great alacrity, there is no evidence whatsoever that the process of Alexander's hiring was at all at odds with STAT's regular hiring procedures. It appears true that STAT did not inform DOJ of its hiring of Alexander
and, as indicated above, that is an element of the statute and certainly one factor tending to support a finding of improper intent. However, defendant's large reliance on the fact that Alexander, herself, did not inform DOJ has little import in and of itself. It is quite clear that Alexander desired as a matter of course to keep private from her employer what she did with her life outside of her working hours at DOJ. There has been no evidence whatsoever presented that STAT told her to keep her employment with STAT a secret from DOJ. We are not concerned here with Alexander's intent, but with STAT'S. Yet, to the extent we are going to examine her actions, it should be noted that militating against any notion that she intended affirmatively to hide her employment with STAT is the fact that while she saw no reason to inform her superiors, she did tell her co-worker, DOJ's staffing coordinator Miranda Prevost, of her STAT job. Additionally, when she answered the phone at night for STAT, she did so by saying, in her normal voice, "Thank you for calling STAT; this is Marcia speaking," despite the fact that a DOJ nursing supervisor was as likely as someone from any other facility to be the caller on the other end. That she did not make "pumping" calls for STAT (e.g., calling facilities at night to ask if they needed any nurses) to DOJ shows nothing, since she did not make any pumping calls to any other facilities either. Moreover, that she was instructed by STAT's staffing coordinator Manbodh to make such calls shows that Manbodh, at least, did not know Alexander's employment was to be kept a secret from DOJ. Indeed, Manbodh sent the faxes to her at DOJ and called her there on occasion, clearly acts not to be taken if DOJ were not to know of her employment. Finally, although defendant argues that Alexander did, in fact, favor STAT in connection with DOJ's hiring of temporary nurses, the evidence does not support such a conclusion. While it appears to have been the case that in March and April 1990, DOJ's use of other nursing agencies besides STAT decline,
the evidence establishes that DOJ had ceased timely paying the agencies, including STAT and that at least some of the others refused to do further business with DOJ. Nurses registered with those agencies then registered with STAT so that they could continue obtaining DOJ work. Moreover, the evidence also indicates that STAT paid its nurses a higher rate of compensation than other agencies and that nurses, therefore, who have been working through other agencies, for that additional reason, made themselves available through STAT instead.
In sum, there is certainly not clear and convincing evidence that STAT's hiring of Alexander was intended to have her modify her conduct in some way favorable toward STAT in connection with her duties at DOJ. In addition to the evidence already discussed above, it can be noted that Alexander was clearly a qualified candidate for the STAT nighttime job. She had a college degree in health care administration and obviously, after three years at the nursing home, was knowledgeable about operations in the health care business.
She was paid a normal salary for her services, without any "bonuses," "commissions" or any indication that her compensation would be increased in proportion to the volume of work she obtained for STAT nurses. That she worked for DOJ during the day was not something she or STAT supervisors hid from any STAT employee, which one might assume would be done if it were intended that DOJ was not to know of her connection with STAT. Thus, her position at DOJ was known by STAT's staffing coordinators. Desiree Manbodh made calls to DOJ's nursing supervisors on a regular basis, inquiring about their need for nurses, and another STAT coordinator, Jacqueline Paige, would speak on occasion to Alexander's boss at DOJ, Uda Grant, about various matters. Alexander's work for STAT was carried out in an open, routine manner, and she was paid her salary by regular STAT payroll check. After DOJ terminated Alexander's employment, DOJ's director of operations, Michael Brucella, a retired New York Police Department detective, purportedly undertook an investigation of the matter. Yet he testified that he gained no knowledge of any effort by STAT to influence Alexander in the performance of her job at DOJ.
For the above reasons, DOJ's affirmative defense fails. For the same reasons, DOJ's counterclaim, which seeks repayment of the salary DOJ paid to Alexander during the time she was also employed by STAT on the theory that DOJ was deprived of the "undivided loyalty" owed to DOJ as her employer, also fails. (DOJ apparently also seeks to recover on the same theory some other amount representing the purported unspecified fruits of the "bribery.") By defendant's own admission, however, any such claim would require proof of the bribery claim.
Judgment herein shall be entered for the plaintiff for the unpaid invoices together with prejudgment interest at the rate of 9% per annum, for a total to the date hereof of $ 147,468.81.
Dated: New York, New York
June 19, 1992
SHARON E. GRUBIN
United States Magistrate Judge