People v. Brown

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: CAPOZZOLI; All concur except NUNEZ; NUNEZ
• Citation: 48 A.D.2d 95,368 N.Y.S.2d 171
• Decision Date: 15 May 1975
• Parties: The PEOPLE of the State of New York, Appellant, v. King BROWN, Defendant-Respondent.

Page 171

368 N.Y.S.2d 171 48 A.D.2d 95 The PEOPLE of the State of New York, Appellant,
v.
King BROWN, Defendant-Respondent. Supreme Court, Appellate Division, First Department. May 15, 1975.

Hugh Anthony Levine, New York City, of counsel (T. James Bryan, New York City, with him on the brief; Robert M. Morgenthau, Dist. Atty.), for appellant.

Susan E. Hofkin, New York City, of counsel (William E. Hellerstein and William J. Gallagher, New York City, attys.), for defendant respondent.

Before STEVENS, P.J., and MARKEWICH, LUPIANO, CAPOZZOLI and NUNEZ, JJ.

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CAPOZZOLI, Justice.

We are unanimous in holding that the appeal should be dismissed for the cogent reasons expressed in the opinion of Mr. Justice Nunez.

However, we do not agree with Mr. Justice Nunez that the Trial Court was correct in dismissing the indictment. In view of our disposition of the appeal, there is no need to pass upon the propriety of the action of the Trial Court in dismissing the indictment. If the appeal were not being dismissed, we would reverse. We believe the evidence was sufficient to spell out a prima facie case of bribery, as defined in Penal Law, § 200.00 et seq. and the motion to dismiss at the conclusion of the People's case should have been denied.

We read the section as making criminal the offer by a defendant to bribe a public servant. The Practice Commentary to Penal Law, § 200.00, in part reads:

'It is substantially a restatement of the former law. Section 200.00 is directed at the Bribe giver: a person who confers, or offers * * * to confer, * * *. The gist of the crime of bribery is the Effort to secure an impermissible advantage in the decision-making process of government.' (Emphasis in original.)

In this connection it is noteworthy that, under the former Penal Law, a bribery conviction on similar facts to those in the case at Bar was affirmed. (People v. Chapman, et al., 13 N.Y.2d 97, 242 N.Y.S.2d 200, 192 N.E.2d 160.) Since the dismissal of the indictment is not properly before us, we take no action with reference to same.

However, as above stated, the appeal of the People is unanimously dismissed.

Appeal from order, Supreme Court, New York County, entered on April 24, 1974, unanimously dismissed.

All concur except NUNEZ, J., who concurs in a separate opinion.

NUNEZ, Justice (concurring).

Defendant Brown was indicted, charged with the crime of bribery as defined in Penal Law, § 200.00 in effect at the time the indictment was filed. At the conclusion of the People's case at the trial to the court and jury, the court granted defendant's motion to dismiss the indictment on the ground that a Prima facie case had not been made out. CPL § 290.10 provides that the court may issue a 'trial order of dismissal' at the conclusion of the People's case or at the conclusion of all the evidence, upon the ground that the trial evidence is not legally sufficient to establish the offense charged. The People appeal pursuant to CPL § 450.20(2) providing that the People may, as of right, appeal from such a trial order of dismissal.

The indictment specifically alleged that on February 20, 1973 the defendant offered a sum of money to a police officer 'upon an

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agreement or understanding' (words of Penal Law, § 200.00) that the officer's decision and exercise of discretion as a public servant would thereby be influenced. The court in a comprehensive opinion...