People v. Bac Tran

• Decision Date: 27 October 1992
• Citation: 589 N.Y.S.2d 845,603 N.E.2d 950,80 N.Y.2d 170
• Parties: , 603 N.E.2d 950 The PEOPLE of the State of New York, Respondent, v. BAC TRAN, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 845

589 N.Y.S.2d 845

80 N.Y.2d 170, 603 N.E.2d 950

The PEOPLE of the State of New York, Respondent, v. BAC TRAN, Appellant.

Court of Appeals of New York.

Oct. 27, 1992.

[80 N.Y.2d 171] [603 N.E.2d 951] Traub & Traub, P.C., New York City (Doris G. Traub, of counsel), for appellant.

[80 N.Y.2d 172] Robert M. Morgenthau, Dist. Atty., New York City (Birgit E. Kollmar and James M. McGuire, of counsel), for respondent.

OPINION OF THE COURT

BELLACOSA, Judge.

This prosecution stems from two separate incidents of alleged bribery by defendant of a municipal fire safety inspector and an undercover investigator. The amounts involved, $310 and $100, are relatively petty. However, the object of these municipal-corruption-type crimes--official disregard of fire safety violations in two Manhattan hotels--is potentially very grave.

The appeal by a grant of leave from a Judge of this Court is from an Appellate Division order affirming the conviction on both bribery counts after a jury trial. Two primary issues are presented. The first, which the People concede is an open question, is whether the key phrase "agreement or understanding" in Penal Law § 200.00 means only "intent to influence", or whether its plain language imposes on the People the requirement to prove something more than simple intent. Because we acknowledge and give effect to the Legislature's addition of a new "gist" (People v. Harper, 75 N.Y.2d 313, 317, 552 N.Y.S.2d 900, 552 N.E.2d 148) to the statute that is distinct from simple intent, we must also determine whether the People presented evidence sufficient to avoid dismissal of the charge irrespective of error in the instruction to the jury on this point.

The second count of the conviction against defendant implicates the separate legal issue of whether the People presented independent prima facie evidence of a conspiracy justifying use of a coconspirator's recorded hearsay evidence against defendant. We conclude that no prima facie proof of a conspiracy was made out at any time during the trial warranting admission of the recorded hearsay statements of the alleged coconspirator. The order of the Appellate Division should be reversed and both counts of bribery in the third degree should be dismissed.

Defendant, Tran, was the fire safety director of two Manhattan hotels with outstanding fire safety violations. On February 2, 1989, an inspector from the New York City Department of Buildings inspected the Carter Hotel. The inspector told defendant that a new violation would be reported. Defendant then put $310 into the shirt pocket of the inspector, who immediately removed the money and said he could not accept it and that the violation would still be reported. The inspector testified that defendant told him to keep the money "even if [he] wrote a violation," and "do whatever [he] had to do, but keep [the money]." The inspector left and promptly turned the money over to the New York City Department of Investigation, Inspector General's office. That is the whole of the People's evidence on count one.

On March 16, 1989, an investigator from the Department of Investigation, Inspector General's office, went to the second hotel, the Longacre, posing as an inspector from the Department of Buildings. After appearing to conduct an inspection, the investigator informed defendant that the hotel had failed to meet certain legal requirements. He also told defendant that he wanted to help him out but was obliged to report the violation. He added that he would hold off writing the violation for the rest of the day because he had other places to go. Defendant said and did nothing in response. When the investigator said he would return later but would telephone first, defendant urged him to return even if defendant was not available. Defendant was not present when the investigator returned. Instead, a hotel employee, Chu, who had been present when the investigator was there earlier, asked the investigator to wait for defendant. When the investigator said he could not wait, Chu gave him a $100 bill. By means of the investigator's hidden tape recorder, the entire dialogue between the investigator and Chu was captured. A portion of the tape recording reflects that when the investigator asked what the $100 was for, Chu replied: "I don't know. Maybe, you clear up for him something here, about Local Law 16. That's what your here before [as in transcript]." Chu said she would tell defendant to call the investigator, but no further contact was made among any of the participants.

Defendant was subsequently charged with two counts of bribery in the third degree, one as to each incident. At the jury trial, defendant objected to the admission of the taped hearsay statements of Chu, claiming that a prima facie case of conspiracy had not been presented or proven and, absent that, the hearsay statements could not be admitted under the coconspirator exception. The trial court allowed the People to play the full tape recording of the conversation between the investigator and Chu, including both hearsay and verbal act statements, expressly reserving its decision on defendant's objection.

Following the close of the People's case, defense counsel moved to dismiss both counts for failure of proof. The trial court denied the motion, stating that while there was no "agreement," there may have been an "understanding," and that the presence or absence of an understanding constituted an issue of fact for the jury. The court further indicated that an "understanding" could consist of an "expectancy * * * that hopefully [the inspector] would not file" the violation. The defense presented no evidence at trial.

The trial court instructed the jury that the words "upon an agreement or understanding"" refer to the defendant's understanding. The court added that those words "as applied to this case, are equivalent to the words, 'with intent to.' " The court defined intent to mean: "to have a conscious objective to cause a result or engage in the conduct or act with which the defendant is charged." Defendant took exception to the instruction.

While the jury was deliberating, it reported to the court that it had reached a verdict solely with respect to the first count. The court, on the record but not to the jury, indicated that there was insufficient evidence of a conspiracy to render admissible the objected-to taped statement and, as a result, it would set aside any guilty verdict rendered on the second count of the indictment. It nevertheless urged the jury to continue deliberations and was persuaded by the prosecutor to further reserve on the objection until the jury reached a verdict on the second count. The jury then returned a guilty verdict on count two. Defendant's objection was then overruled and the motion to set aside the verdict was denied.

The Appellate Division affirmed the judgment of conviction (178 A.D.2d 247, 577 N.Y.S.2d 367). Without commenting on the trial court's charge to the jury, the Appellate Division concluded that "the evidence permitted the conclusion that defendant's conscious objective was to influence the conduct of the officials with money, which on both occasions was delivered" (id.). The Appellate Division added that the disputed evidence was admissible under the coconspirator exception to the hearsay rule "since the evidence established a prima facie case of conspiracy independent of the statements" (id.).

I.

The crime of bribery in the third degree is committed when a person "confers, or offers or agrees to confer, any benefit upon a public servant upon an agreement or understanding that such public servant's vote, opinion, judgment, action, decision or exercise of discretion as a public servant will thereby be influenced" (Penal Law § 200.00 [emphasis added].

The statutory history hints at the significant distinction between "intent" and "agreement or understanding." Predecessor statutes to Penal Law § 200.00, in effect, required only the intent to influence a public official in the exercise of the official's powers. In 1965, as part of an extensive revision of the Penal Law, the Legislature removed the intent language and substituted the requirement of an "agreement or understanding." The legislative history of the 1965 revision of Penal Law § 200.00 indicates that the bribery laws were "analyzed, re-appraised, condensed, regrouped and re-written" (Second Interim Report of NY Temp Commn on Revision of Penal Law and Crim.Code [1963 N.Y.Legis.Doc. No. 8], at 38), but that there was no intent to make "major substantive changes in existing law" (Commn Staff Notes, reprinted in Proposed N.Y. Penal Law [Study Bill, 1964 Senate Int. 3918, Assembly Int. 5376] art. 205, at 371 [1964]. Of the five statutes which were consolidated into Penal Law § 200.00, three used the phrase "with intent to influence" (former Penal Law §§ 371, 378, 1822). Two others, former Penal Law §§ 465 and 1233, did not use the words "with intent to influence," but kept the focus on the mental state of the bribe maker. In regrouping and rewriting these statutes as revised Penal Law § 200.00, the Legislature introduced the new core ingredient "upon an agreement or understanding." While this language continued the focus on the mental state of the bribe maker, it signaled a new and different notion. The key element was changed on its face to something qualitatively and quantitatively higher than the long-standing, simple "intent to influence". Whether it qualifies as a "major substantive change" (Commn Staff Notes, reprinted in Proposed N.Y. Penal Law [Study Bill, 1964 Senate Int. 3918, Assembly Int. 5376] art. 205, at 371 [1964] [emphasis added] is not the point. It is a substantive change. The dissent would ignore the change entirely, would extirpate from the statute the very words that we have said constitute the "gist of the crime" (People v. Harper, 75 N.Y.2d 313, 317, 552 N.Y.S.2d 900, 552 N.E.2d 148, supra ) and would...