People v. Esposito

• Decision Date: 26 July 1989
• Citation: 144 Misc.2d 919,545 N.Y.S.2d 468
• Parties: The PEOPLE of the State of New York v. John V. ESPOSITO, Defendant. Supreme Court, New York County, Extraordinary Special and Trial Term
• Court: New York Supreme Court

Page 468

545 N.Y.S.2d 468

144 Misc.2d 919

The PEOPLE of the State of New York v. John V. ESPOSITO, Defendant Supreme Court, New York County Extraordinary Special and Trial Term.

July 26, 1989.

Robert Abrams, Atty. Gen., Helman R. Brook, Deputy Atty. Gen., Sp. State Prosecutor, New York City (Edward Boyar, Sp. Asst. Atty. Gen., of counsel), for the People.

Peter L. Maroulis, Poughkeepsie, for defendant.

FELICE K. SHEA, Justice:

John Esposito, former Police Chief of Metro-North Commuter Railroad Company, has been indicted and charged with computer trespass in violation of Penal Law § 156.10(2) (17 counts), unauthorized use of a computer in violation of PL § 156.05 (17 counts), falsifying business records in the first degree in violation of PL § 175.10 (8 counts) and official misconduct in violation of PL § 195.00(1) (3 counts). All charges arise from the alleged misuse of the New York State Police Information Network (NYSPIN), a computer system containing individual criminal histories. Defendant moves for an order seeking dismissal of the indictment on multiple grounds.

CHARGES OF OFFICIAL MISCONDUCT

Defendant's motion to dismiss the indictment against him presents the issue of whether the "benefit" intended to be obtained by a public official charged with official misconduct under PL § 195.00 must be personal to the defendant. Counts 10, 33 and 39 charge defendant with official misconduct, on different dates and concerning different individuals, as follows:

AND THE GRAND JURY AFORESAID, by this indictment, further accuses the defendant of the crime of OFFICIAL MISCONDUCT, in violation of Section 195.00(1), committed as follows:

That defendant, a public servant, to wit: an officer of the Metro-North Police Department, on or about [date specified] in the County of New York, with the intent to obtain a benefit for the Metro-North Commuter Railroad, committed an act relating to his office but constituting an unauthorized exercise of his official functions, to wit: caused the New York State Police Information Network Computer service to be used to obtain criminal history information about [individual named] for a purpose not connected with the administration of criminal justice, knowing that such act was unauthorized.

Section 195.00(1) of the Penal Law defines official misconduct as follows:

A public servant is guilty of official misconduct when, with intent to obtain a benefit or to injure or deprive another person of a benefit:

1. He commits an act relating to his office but constituting an unauthorized exercise of his official functions, knowing that such act is unauthorized.

Penal Law § 10.00(17) states that " '[b]enefit' means any gain or advantage to the beneficiary and includes any gain or advantage to a third person pursuant to the desire or consent of the beneficiary". Penal Law § 10.00(7) permits "person" to be defined as a corporation or governmental instrumentality, where appropriate.

Analysis of the statutes, read together, makes it clear that a public servant, to be guilty of official misconduct, must intend to obtain a benefit to himself. While PL § 10.00(17) defines a benefit as "includ[ing] a ... gain or advantage to [another] person", a fair reading of these words compels the conclusion that the benefit to another person (or entity, where appropriate) must be at least indirectly of benefit to the accused, as, for example, a benefit to the accused's family, to a friend or to the accused's business. (See, e.g., People v. Severino, 91 Misc.2d 898, 398 N.Y.S.2d 828, aff'd 63 A.D.2d 1010, 406 N.Y.S.2d 105 where PL § 10.00(17) is viewed as including a benefit to a defendant's business). PL § 10.00(17), by using the words "and includes" rather than the word "or" limits "benefit" to a gain or advantage to the beneficiary.

There is nothing in the case law that contradicts this construction of PL § 195.00. In 1969, an upstate trial court recited the history of the statute and its predecessor provisions and held that the crime of official misconduct requires "[a] culpable motive ... which must be directly connected with the duty which the public servant [violated] ... and such motive must be of a venal nature". People v. Thompson, 58 Misc.2d 511, 513, 296 N.Y.S.2d 166. The culpable mental state for the crime of official misconduct is defined by Donnino, Practice Commentary, McK.Cons.Laws of N.Y., Book 39, PL § 195.00, p. 431, as "a specific intent to obtain a benefit or to injure another person or deprive another person of a benefit". A few courts have fleshed out the statutory definition of "benefit" in the context of bribery and bribe receiving under Penal Law Article 200. See e.g., People v. Hyde, 156 A.D. 618, 141 N.Y.S. 1089; People v. Cavan, 84 Misc.2d 510, 376 N.Y.S.2d 65; People v. Adams, 86 Misc.2d 634, 382 N.Y.S.2d 879. In all cases, the "benefit" was required to be more than merely tangential and had a nexus personal to the defendant.

Counts 10, 33 and 39 of the indictment charge defendant with committing the crime of official misconduct "with intent to obtain a benefit for the Metro-North Commuter Railroad", defendant's employer. Defendant's alleged intent to benefit the Railroad does not spell out a benefit to himself, even remotely. Nor was there evidence before the grand jury of a benefit to defendant. Accordingly, the evidence presented to the grand jury was insufficient to support the official misconduct charges and the factual allegations of those three counts fail to state the crimes charged. The official misconduct charges are hereby dismissed.

CHARGES OF COMPUTER TRESPASS AND UNAUTHORIZED USE OF A COMPUTER

Defendant challenges the factual sufficiency of each count of the indictment including the counts charging computer trespass and unauthorized use of computer.

CPL § 200.50(7)(a) requires that each count of an indictment contain "[a] plain and concise factual statement ... which ... asserts facts supporting every element of the offense charged and the defendant's ... commission thereof with sufficient precision to clearly apprise the defendant ... of the conduct which is the subject of the accusation ...". CPL § 200.70(2)(b) bars amendment of an indictment for the purpose of curing legal insufficiency of the factual allegations.

Counts 1, 4, 6, 8, 11, 14, 17, 20, 22, 24, 27, 29, 31, 34, 37, 40 and 43 charge defendant with computer trespass in identical language, on different dates, as follows:

THE GRAND JURY OF THE EXTRAORDINARY SPECIAL AND TRIAL TERM OF THE SUPREME COURT OF THE STATE OF NEW YORK, COUNTY OF NEW YORK, by this indictment, accuses the defendant of the crime of COMPUTER TRESPASS, in violation of section 156.10(2) of the Penal Law, committed as follows:

The defendant, on or about [date] in the County of New York, knowingly caused to be used a computer service, to wit: the New York State Police Information Network, without authorization, to wit: in excess of the permission of the New York State Police Department, which, as the defendant had been notified, limited such access to purposes connected with the administration of criminal justice.

Penal Law § 156.10(2) provides:

§ 156.10 Computer trespass

A person is guilty of computer trespass when he knowingly uses or causes to be used a computer or computer service without authorization and:

* * *

* * *

2. he thereby knowingly gains access to computer material.

Comparison of the statute with the indictment shows that the statutory requirement, "he thereby knowingly gains access to computer material", is not supported by factual allegations in any of the computer trespass counts.

Counts 2, 5, 7, 9, 12, 15, 18, 21, 23, 25, 28, 30, 32, 35, 38, 41 and 44 charge defendant with unauthorized use of a computer, in identical language, on different dates and concerning different individuals, as follows:

AND THE GRAND JURY AFORESAID, by this indictment, further accuses the defendant of the crime of UNAUTHORIZED USE OF A COMPUTER, in violation of Section 156.05 of the Penal Law, committed as follows:

The defendant, on or about [date] in the County of New York, knowingly caused to be used a computer service, to wit: the New York State Police Information Network, without authorization and thereby knowingly gained access to computer material, to wit: criminal history information about [name], the disclosure of which was otherwise prohibited by law.

Penal Law § 156.05 reads:

§ 156.05 Unauthorized use of a computer

A person is guilty of unauthorized use of a computer when he knowingly uses or causes to be used a computer or computer service without authorization and the computer utilized is equipped or programmed with any device or coding system a function of which is to prevent the unauthorized use of said computer or computer system.

Again, comparing the statute with the indictment, it appears that the statutory language, "and the computer utilized is equipped or programmed with any device or coding system, a function of which is to prevent the unauthorized use of said computer or computer system", is unsupported in the factual portions of the charges of unauthorized use of a computer.

An indictment traditionally serves three purposes: the constitutionally based right of an accused to fair notice of the accusations made against him, the protection against double jeopardy, and the assurance that the crime for which a defendant is brought to trial is the one for which he was indicted. People v. Iannone, 45 N.Y.2d 589, 594-95, 412 N.Y.S.2d 110, 384 N.E.2d 656. Defendant attacks the indictment on the grounds that the computer counts fail to comply with CPL § 200.50(7)(a) and fail to accord him fair notice. He argues that the 17 counts of computer trespass as well as the 17 counts of unauthorized use of a computer are jurisdictionally defective in that they do not assert facts supporting every element of the offense charged.

The People acknowledge that each of the disputed 34 counts is defectively...