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People v. Flanagan

New York Court of Appeals

February 9, 2017

The People & c., Respondent,
v.
William Flanagan, Appellant.

          Donna Aldea, for appellant.

          Yael V. Levy, for respondent.

          OPINION

          DiFIORE, CHIEF JUDGE

         Defendant was convicted, upon a jury verdict, of conspiracy in the sixth degree (Penal Law § 105.00) and two counts of official misconduct (Penal Law § 195.00 [1], [2]). On appeal, defendant primarily challenges his convictions on the bases of the legal sufficiency of the evidence and the fairness of the trial. We conclude that these claims lack merit and affirm the order of the Appellate Division in all respects.

         I.

         On May 19, 2009, shortly before Memorial Day weekend, school authorities reported the larceny of over $3, 000 of electronic equipment from a high school (the High School) to the Nassau County Police Department (NCPD). That same day, an NCPD patrol officer from the Seventh Precinct responded to the High School's complaint and interviewed the principal. This was one of a string of equipment thefts at the High School that had occurred throughout the 2008-2009 school year, all of which had been reported to the NCPD. As to this most recent theft, the principal told the officer that the school's surveillance video had captured a student, Z.P., on the High School premises on May 18 after school hours and without permission, and that witnesses had seen Z.P. trying to gain entry to the auditorium where the stolen equipment had been locked inside.

         The officer recorded the details of the principal's complaint in a supporting deposition using form PDCN32B. The supporting deposition, which was sworn to by the principal and signed by both the principal and the officer, plainly stated that the victim wanted the perpetrator to be arrested. On the back of the supporting deposition, the officer wrote down NCPD case report numbers associated with the prior thefts the High School had already reported. In accordance with NCPD protocol, the officer called in her case report so that the information could be entered into the NCPD computer system and then turned in the supporting deposition at the Seventh Precinct. As the suspect was not present at the scene, the patrol officer could not make an arrest and the felony investigation, upon review, was assigned to the detectives in the Seventh Precinct detective squad (the Squad) for the purpose of conducting further "investigation and [to] move towards making an arrest."

         In the meantime, the assistant principal informed both Z.P. and his father, Gary Parker, that Z.P. was being suspended for five days for stealing the equipment and that the school had reported the larceny to the police. Gary Parker was a long-time benefactor of the NCPD who regularly entertained high-ranking members of the department. Due to Parker's connections, Z.P. had obtained an internship with the NCPD that spring and, thus, was a department employee at the time the crime was reported.

         A detective, who was "catching cases" on May 19 when the Squad received the police report of the larceny through the department's computer system, then created a case jacket, assigned a detective division number to the case, and assigned himself the case. That same day, however, a lieutenant, who was the commanding officer of the Squad, learned that Z.P. was an NCPD employee and that his father was closely connected with the "upper echelon" in the department, meaning "chiefs and the commissioners." The lieutenant placed a call to Internal Affairs, which directly reported to the Police Commissioner and handled all cases involving department employees, to refer the case. Hours later, she received a call from Deputy Chief of Patrol John Hunter, who did not work in Internal Affairs but nonetheless outranked her, informing her that the case would stay with the Squad. Her response was "Yes, sir." Concerned about the attention this case already appeared to be receiving, the lieutenant reassigned the case to Detective Bruce Coffey who had an established relationship with school authorities and who the lieutenant believed was better at crossing his t's and dotting his i's.

         At the behest of the detective sergeant who usually supervised Coffey, the lieutenant allowed Detective Sergeant Alan Sharpe to serve as Coffey's supervisor on this case. Sharpe, who was second in command at the Squad, then instructed Coffey to meet with the principal. Sharpe replaced the lieutenant and became the Squad's commanding officer days later on May 27. Sharpe explained to Coffey that "higher-ups" at the NCPD had been calling about the case and these "higher-ups" did not want an arrest. Sharpe directed Coffey to obtain a statement of withdrawal from the victim, which would serve to drop the complaint and close the case. Coffey followed the order of his supervisor. On May 21, Coffey went to the High School where he met with the principal and spoke with two other school employees who were witnesses to the crime. The principal was "adamant" about having Z.P. arrested and Coffey, conflicted as to his supervisor's directives to dispose of the case and the victim's wishes to proceed with it, did not present the principal with the withdrawal form. Afterwards, Coffey communicated the principal's position to Sharpe and told Sharpe he was unable to obtain the withdrawal. [1]

         In advance of the upcoming Memorial Day weekend, Gary Parker also met with the principal. Parker informed her that Z.P. had confessed to the theft, but implored her to speak to the school district Superintendent about not having Z.P. arrested. The principal emailed Detective Coffey asking the police to place the investigation on hold until she was able to confer with the Superintendent. Parker also called a friend of Z.P.'s, who had received stolen property from his son, and directed him to deliver this property to the police. The friend, along with another individual who had received some of the stolen property from Z.P., brought the property to the Fifth Precinct and told the police that it was stolen. The police obtained statements from these witnesses. Sharpe sent the detective originally assigned to the case to retrieve this property from the Fifth Precinct. The detective did so and placed it in the Squad's storage locker without logging it in the Squad's evidence log, contrary to normal protocol. Parker also sought the assistance of his friend, Deputy Chief of Patrol Hunter. On that Saturday, Hunter asked a police officer, who had nothing to do with the larceny investigation, but was the principal's nephew, to speak with his aunt about the case. The officer, after deliberation, informed Hunter that he would not call his aunt.

         On the Tuesday after Memorial Day, the principal, the Superintendent, and the attorney for the school district made the decision that, in view of the fact that in excess of $11, 000 of equipment had been stolen from the school, the High School would press charges and have Z.P. arrested. Coffey, aware of the victim's desire to proceed with the case, nonetheless complied with the order of his supervisor, Detective Sergeant Sharpe, and declined to investigate the matter any further or effectuate an arrest. To this end, Coffey never preserved, obtained, or viewed the surveillance video in the High School's possession. He also never invoiced, vouchered, or photographed the stolen property in the Squad's possession, as was required by department protocol, and left this evidence of a crime in the Squad's locker instead of securing the evidence in the NCPD Property Bureau [2]. Although Coffey conducted interviews with two school employees on May 21, he did not prepare any written statements of these witnesses or even take notes during the interviews. Coffey's omissions and refusal to act were done with the aim of preventing Z.P.'s arrest. Coffey understood this to be the goal of his supervisor, Sharpe, who made it abundantly clear to Coffey that there would be no arrest in this case and that Coffey was to obtain a withdrawal of prosecution.

         On June 16, Sharpe and Hunter made arrangements for the principal and another school employee to meet with a detective who was not involved in Z.P.'s case in order to obtain the stolen property in the Squad's possession. This detective, a 15-year veteran, after speaking with Sharpe, presented the principal with the evidence he found unvouchered in the Squad's locker and asked her to sign two documents. The first was a document acknowledging receipt of the property. The second was a withdrawal of prosecution form. Upon reviewing the documents, the principal told the detective that she would not sign the withdrawal and that she did not have authority to drop the charges. Upon learning that the High School did not want to drop the case, the detective told the principal that he would need to bring the property back to the precinct and she would have to follow up with the detective assigned to the case. Then, the detective stepped out of the room to call Sharpe, who had directed him to obtain signatures on both forms, and informed Sharpe that the High School had refused to abandon their complaint. Sharpe ordered the detective to bring the property back to the precinct. The detective complied.

         Two days later, Gary Parker encountered defendant William Flanagan at the U.S. Open. Parker and defendant knew each other well and had socialized on many occasions in the past. At this time, defendant was the detective sergeant in charge of Asset Forfeiture. On or about July 14, however, defendant was appointed by the Police Commissioner to Second Deputy Commissioner for Special Projects, one of the highest ranks in the NCPD. Parker explained the situation with his son and enlisted defendant's help in achieving a favorable resolution, which Parker admitted was no prosecution or arrest of his son. Defendant told Parker that he would look into the matter and see what he could do.

         A few days later, Parker followed up with defendant by email. Parker asked if defendant needed any further information from him, to which defendant responded "I have all I need" and noted that he had "already put a couple of pieces in motion." Phone records revealed that defendant then immediately called the Seventh Precinct and had a ten minute phone conversation with someone there. The following Monday, defendant received an email from Sharpe stating that Sharpe was still waiting for a call back from the High School regarding the return of property the two of them had discussed the previous week. Defendant responded, "[t]hanks, talk to you soon."

         Over the course of the summer, Coffey was pressured by Sharpe to return the stolen property and obtain a withdrawal of prosecution from the High School. Failed attempts to arrange the return of the stolen property were reflected in a series of emails. Parker emailed defendant throughout the summer seeking updates and expressing concern with how the case would be resolved. Defendant responded to one such email with "I have no doubt about the resolution." Additionally, the principal expressed frustration with how the department was handling the case. In one email she remarked, "I assume that [Z.P.] has not been arrested, since it is clear that the police want to bury this case."

         At the end of the summer, Coffey made arrangements to meet with the principal and another school employee on September 1 to return the stolen property. At this meeting, the principal was again presented with the property and the same two documents brought by another detective to the June 16 meeting, the property receipt and withdrawal of prosecution form. Both the principal and the other employee signed the receipt, but the principal expressed outrage at being presented with the withdrawal and told Coffey that the High School was not dropping the charges. Coffey left the evidence with the principal and returned to the precinct with the unsigned withdrawal.

         About one week later, Coffey received an email from Sharpe which read, "I NOTICED THE LAPTOPS AND PROJECTOR GONE FROM PROPERTY LOCKER. WERE THEY RETURNED TO THE SCHOOL DISTRICT DUE TO THEM ELECTING NPA?" [3] Coffey later informed Sharpe that the property had been returned, but that the principal had refused to sign the withdrawal. Despite Sharpe's directive to Coffey to keep trying to get the principal to sign the withdrawal, Coffey did not comply and had no further interaction with anyone at the High School after the September 1 return.

         Around this same time, Parker emailed defendant to inquire about whether the property had been returned. Defendant indicated that it had. Parker responded with "THANK YOU!!!!!!" to which defendant replied, "[d]e nada family." Within days of this exchange, Parker's wife sent defendant gift cards. In response to Parker's email inquiry about defendant's receipt of the gift cards, defendant said they were "[o]ver the top."

         Later in the fall, both defendant and Coffey were at a police retirement party. While Coffey was sitting at a table with other members of the Squad, defendant approached Coffey, shook his hand, and said, "[t]hank you." Coffey responded, "[t]hank you. You're welcome." Defendant did not shake hands with anyone else at the table and Coffey understood that defendant had thanked him for his involvement with Z.P.'s case.

         One year later, in September 2010, Coffey was preparing to retire. Aside from his initial meeting at the High School on May 21, 2009, Coffey had purposefully done no investigation on this case, had not followed-up on any leads, and had not arrested Z.P. Nonetheless, Coffey had left the case marked open in the department's computer system. Prior to his departure from the department, Coffey prepared a false report to close out the case. Specifically, Coffey falsely represented that the principal did not want to move forward with the case and was no longer in need of police assistance. Sharpe, as Coffey's case supervisor, had to review and sign off on this statement. Sharpe instructed Coffey to indicate that the ...


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