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People v. Malki

Criminal Court of the City of New York, Bronx County

May 16, 2017

The People of the State of New York,
v.
Adam Malki, Defendant.

          Mr. Michael Shapiro, Esq. and Mr. Alan Lewis, Esq.

          ADA Allison Green Bronx District Attorney's Office

          HON. FRANCES Y. WANG, J.C.C.

         By motion, filed February 3, 2017, defendant Adam Malki seeks dismissal of the accusatory instrument on facial insufficiency grounds pursuant to C.P.L. §§ 170.30(1)(a) and 170.35(1)(a). The People, by affirmation dated March 7, 2017, oppose defendant's motion. Defendant filed a reply memorandum of law on March 16, 2017.

         Defendant is charged with one count of official misconduct (Penal Law § 195.00[1]), which states in pertinent part:

A public servant is guilty... when, with intent to obtain a benefit or deprive another person of a benefit... [h]e commits an act relating to his office but constituting an unauthorized exercise of his official functions, knowing that such act is unauthorized[.]

         Defendant concedes that the accusatory instrument adequately pleads one of the elements of the sole charge: that he is a public servant. Defendant, however, contends that the charge should, nevertheless, be dismissed because it fails to sufficiently allege the other elements, namely: (1) that he did anything that he was not "authorized" to do; and (2) that he obtained any "benefit" from his disclosure of unauthorized information. Specifically, defendant argues that the accusatory instrument merely indicates that he identified Christian Perez (hereinafter "Perez") to Katherine Martinez (hereinafter "Martinez") as a target of the investigation, and that the accusatory information fails to allege that such act was unauthorized. Further, defendant contends that the accusatory instrument fails to identify what "benefit" he obtained by disclosing the details of the investigation to Martinez. See Defendant's motion, pp. 2-3.

         In opposing defendant's motion, People rely on People v. Flanagan, 28 N.Y.3d 644 (2017), to support their argument that defendant's act of disclosing information about an on-going investigation to one of the targets of such investigation was an unauthorized act. Further, the People assert that they are not required to detail which factual allegation contained in the accusatory instrument constitutes the "benefit." In any event, the People contend that there are several common sense inferences of "benefit" based upon the facts alleged in the accusatory instrument. For example, the People contend that the most blatant inference of benefit is that defendant made the disclosure with the intent to continue the romantic relationship with Martinez. See People's response, pp. 9-14.

         In defendant's reply, to support his claim that he did not do anything unauthorized, he asserts that the accusatory instrument fails to plead that Martinez was a target of the investigation, much less that he had been told of her status as a target. Additionally, defendant, in an attempt to demonstrate that the accusatory instrument fails to identify anything that constitutes a benefit that he intended to obtain, asserts that the People merely speculate about possible benefits. As such, defendant contends that the sole charge of official misconduct should be dismissed. See Defendant's reply, pp. 4-7.

         A valid and sufficient accusatory instrument is a nonwaivable jurisdictional prerequisite to a criminal prosecution. People v. Dreyden, 15 N.Y.3d 100, 103 (2010), quoting People v. Case, 42 N.Y.2d 98, 99 (1977). Criminal Procedure Law § 100.40(1) provides that an information is facially sufficient when it (1) adheres to the form and content requirements detailed in C.P.L. § 100.15; (2) contains factual allegations which provide reasonable cause to believe that the defendant committed the offense charged, and (3) contains non-hearsay allegations, which if true, establish every element of the offense charged and the defendant's commission thereof (see C.P.L. §§ 100.40[1][a]-[c]). Reasonable cause to believe that a person has committed an offense "exists when evidence or information which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it." C.P.L. § 70.10(2). This standard does not require that the instrument allege facts that would prove defendant's guilt beyond a reasonable doubt as required at trial. See People v. Henderson, 92 N.Y.2d 677, 680 (1999).

         Rather, "so long as the factual allegations of an information give the accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading[.]" People v. Kalin, 12 N.Y.3d 225, 230 (2009), quoting People v. Casey, 95 N.Y.2d 354, 360 (2000). A court reviewing for facial sufficiency must assume that the factual allegations contained in the accusatory instrument are true, and must consider all reasonable inferences that may be drawn from them. See C.P.L. § 100.40, 100.15; People v. Jackson, 18 N.Y.3d 738, 747 (2012).

         In order to be guilty of official misconduct for malfeasance, a defendant (1) must commit an act that constitutes an unauthorized exercise of his official functions; (2) knowing that the act is unauthorized; and (3) with the intent to obtain a benefit or deprive another of a benefit. Flanagan, 28 N.Y.2d at 657. "An 'act' may be unauthorized because it is declared to be such by statute, ordinance, rule, regulation or otherwise." Richard G. Denzer and Peter McQuillan, Practice Commentary to Penal Law § 195.00, McKinney's Cons. Law of NY (1967) ("Denzer and McQuillan") at 634-35. Penal Law § 195.00 contains two mens rea elements, requiring both an intent to obtain a benefit or deprive another of a benefit and knowingly acting or refraining from acting. "The double mens rea prevents the criminalization of official actions, or lack thereof, due to 'mere errors of judgment[.]' This exacting standard is in keeping with the legislature's goal of criminalizing 'flagrant and intentional abuse of authority by those empowered to enforce the law, ' rather than 'good faith but honest errors in fulfilling one's official duties[.]' Importantly, the two mens rea requirements were 'not meant to limit in any substantive way the types of conduct that would be culpable[.]'" Flanagan, 28 N.Y.3d at 656 (citing People v. Feerick, 93 N.Y.2d 433, 445-48 [1999]) (emphasis in original).

         Here, the accusatory instrument states that Sergeant Robert Clark of the 44th Precinct is assigned as the Field Intelligence Officer to investigate a group of individuals known as "The Eden Boys, " who were alleged to have committed crimes in and around the confines of the 44th Precinct. The instrument further states that on or about the first week of September of 2015, Sergeant Clark assigned defendant, a member of the New York Police Department, to assist in this investigation by reviewing social media postings, messages and photographs of multiple targets of the investigation, including Martinez. Additionally, the instrument states that the sergeant informed defendant that Martinez was dating Perez, another target of the investigation. Therefore, contrary to defendant's assertion, the accusatory instrument clearly indicates that Martinez was a target of the investigation, and that defendant was informed of such.

         Defendant argues that the accusatory instrument fails to allege that he did anything that he was not "authorized" to do. According to defendant, the instrument does not use the word "unauthorized" or include any explanation that conveys that concept. Defendant points out that the only act relating to his duties as a police officer that is alleged in the accusatory instrument is that he identified Perez to Martinez as a target of the investigation. Defendant asserts that the instrument does not even conclusorily allege that this act was "unauthorized, " much less plead any facts in support of that conclusion. At best, defendant ...


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