People v. Herskowitz

• Decision Date: 03 February 1975
• Citation: 80 Misc.2d 693,364 N.Y.S.2d 350
• Parties: The PEOPLE of the State of New York v. Israel Zef HERSKOWITZ and Julius Michael Jacobs, Defendants.
• Court: New York County Court

Page 350

364 N.Y.S.2d 350

80 Misc.2d 693

The PEOPLE of the State of New York v. Israel Zef HERSKOWITZ and Julius Michael Jacobs, Defendants.

Orange County Court.

Feb. 3, 1975.

Abraham J. Weissman, Dist. Atty., for Orange County, Goshen, for the people.

Arnold Becker, New City, for defendants.

THEODORE DACHENHAUSEN, Jr., Judge.

Initial motions to dismiss having been denied, defendants now bring this supplemental pre-trial motion to dismiss Indictment No. 138--74 upon the ground that the acts alleged in said indictment do not constitute the crime of bribery. Said indictment alleges as follows:

'The Grand Jury of Orange County, by this Indictment, accuse Israel Zef Herskowitz and Julius Michael Jacobs of the crime of Bribery in the Second Degree, in violation of the provisions of Section 200.00 of the Penal Law of the State of New York, committed as follows:

The said defendants, on or about and between May 21, 1974 and June 27, 1974, in the Town of Wallkill and City of Middletown, Orange County, New York, conferred, offered and agreed to confer a benefit, to wit: Money, upon a public servant to wit: Louis Ingrassia, Assemblyman of the State of New York, upon his agreement and understanding that such public servant's vote, opinion, judgment, action, decision or exercise of discretion as a public servant would thereby be influenced so that property owned by defendants and known as the Comfort Farm, would be permitted to connect to and become a part of a water district and sewer district located in the Town of Wallkill, Orange County, New York.

Section 200.00 of the Penal Law provides:

' § 200.00 Bribery in the second degree

A person is guilty of bribery in the second degree when he 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.'

The defendants' position, in effect, is stated thusly: Conceding, for the purposes of this motion, that every fact recited in the indictment is true, said indictment does not allege facts which constitute a violation of Penal Law Section 200.00 and, therefore, is fatally defective as a matter of law because the official alleged to have been bribed, Within the conduct of his office as a public servant, had no power, authority or function to perform or refrain from performing the act in respect of which it was sought to influence him.

The touchstone of this motion, therefore, involves an interpretation of the phrase 'as a public servant' as contained in Section 200.00 and a determination of whether the conduct sought to be performed in this case was within the ambits of such phrase as it applies to a member of the State Assembly.

From its earliest common law beginnings the crime of bribery has been denoted as an offense involving an official who accepted, privately, an undue reward intended to influence conduct in office. Although originally directed against the corruption of judges and other officials involved in administering justice, its scope has been enlarged over the years so that today it encompasses all public servants. Even though the evolution of this penal statute has significantly expanded the category of public officers whose corruption is prohibited, it is significant that the conduct sought to be influenced still must relate to the powers, duties or functions of the public officer In his official or public servant capacity, as opposed to his individual capacity. People v. Chapman, 13 N.Y.2d 97, 242 N.Y.S.2d 200, 192 N.E.2d 160.

An examination of the various decisions interpreting the provisions of Section 200.00 and its progenitors reveals in each case that the individual found to have been bribed had either colorable authority to act in connection with the subject matter of the bribe (People v. Jackson, 191 N.Y. 293, 84 N.E. 65; People v. LaFaro, 250 N.Y. 336, 165 N.E. 518; People v. Chapman, supra), or some official relationship thereto by virtue of his employment. People v. Clougher, 246 N.Y. 106, 158 N.E. 38.

It is a cardinal rule of statutory interpretation that the intention to change a long established rule or principle is not to be imputed to the legislature in the absence of a clear manifestation thereof. Matter of Delmar Box Co., 309 N.Y. 60, 127 N.E.2d 808. The practice commentary relating to Article 200 of the Penal Law, which includes Section 200.00, reaffirms this precept in the following language: 'The definition of the offenses in Article 200 makes no major substantive change in the former law, but attempts, by a largely formal restatement, to simplify and clarify.' (Denger and McQuillan, McKinney's Cons.Laws, Book 39, Penal Law, p. 648.)

It is not to be supposed that the legislature will deliberately place words in a statute which are intended to serve no purpose (People v. Dethloff, 283 N.Y. 309, 28 N.E.2d 850), and by the specific inclusion therein of the words 'as a public servant' the legislative intent is clearly framed in language which is plain and concise. Courts are not at liberty to hold that the legislature had an intention other than that which the language imports. Ocean Hill-Brownsville Governing Board v. Board of Education, 30 A.D.2d 447, 294 N.Y.S.2d 134. Although the Court is mindful that the rule of strict construction applicable to penal statutes has been modified somewhat by the legislative declaration that the Penal Law provisions shall be 'construed according to the fair import of their terms to promote justice and effect the objects of the law' (Penal Law § 5.00), it does not permit an essential part of a statute to be ignored in a particular case. People v. Teal, 196 N.Y. 372, 89 N.E. 1086.

The fair import of the inclusion of the qualifying words 'as a public servant' in Penal Law Section 200.00 is that the legislature intended to shield from corruption only those actions of a public servant which are related to or within the scope of his functions as a public servant. Otherwise, there would be no necessity or need for the words employed. While on the one hand, the Court must not be overly technical in interpreting penal provisions, on the other hand, penal responsibility cannot be extended beyond the fair scope of the statutory mandate. People v. Sansanese, 17 N.Y.2d 302, 270 N.Y.S.2d 607, 217 N.E.2d 660; People v. Wood, 8 N.Y.2d 48, 201 N.Y.S.2d 328, 167 N.E.2d 736.

Passing now to the question of whether the conduct sought to be performed was within the 'public servant' role of Louis Ingrassia, it is noted that Sections 75, 76 and 77, Public Officers Law, reveal a number of functions a state legislator performs within his 'official' capacity, but none of these appear to apply to the area wherein action was sought in the instant case, namely, the extension of water and sewer districts within a town. Extending the water district and sewer district so as to...