People v. Ohrenstein

• Citation: 151 Misc.2d 512,574 N.Y.S.2d 616
• Parties: The PEOPLE of the State of New York v. Manfred OHRENSTEIN, Francis Sanzillo, and Joseph Montalto.
• Decision Date: 01 July 1991
• Court: United States State Supreme Court (New York)

Page 616

574 N.Y.S.2d 616

151 Misc.2d 512

The PEOPLE of the State of New York v. Manfred OHRENSTEIN, Francis Sanzillo, and Joseph Montalto.

Supreme Court, New York County Criminal Term, Part 56.

July 1, 1991.

Robert Morgenthau, Dist. Atty., New York County by Michael Cherkasky, Michael Warren, Asst. Dist. Attys., of counsel, for People.

Hoffinger, Friedland, Dobrish, Bernfeld & Hansen, New York City by Jack Hoffinger, for defendant Ohrenstein.

Morvillo, Abramowitz, Grand, Iason & Silberberg, P.C., New York City by Barry Bohrer, for defendant Sanzillo.

Martin Adelman, P.C., New York City, for defendant Montalto.

HAROLD J. ROTHWAX, Justice:

Following the Court of Appeals' favorable ruling on the defendants' ¹ petition for a writ of prohibition against continued prosecution, based upon the absence of fair notice that use of the State legislative payroll to hire persons exclusively to work in political campaigns of insurgent Democratic candidates was larceny [People v. Ohrenstein, 77 N.Y.2d 38, 52, 563 N.Y.S.2d 744, 565 N.E.2d 493 (1990) ], the indictment herein was reduced to those counts of offering a false instrument for filing [PL 175.35] and grand larceny [PL former 155.35, former 155.30] which alleged that the defendants placed on the State legislative payroll "employees [who] did nothing, that the defendants knew this and that the defendants also knew that they [the employees] had no duties". [77 N.Y.2d at p. 53, 563 N.Y.S.2d 744, 565 N.E.2d 493].

The remaining 98 counts [see People v. Ohrenstein, 153 A.D.2d 342, 376, 549 N.Y.S.2d 962 (1st Dept.1989) ] pertain to the enrollment of Arnold Smith and Joseph Walsh on the payroll of Senator Ohrenstein's district office, and to the enrollment of Carmen DelPriore on the payroll of the Senate Minority Leader. Specifically, Senator Ohrenstein and his chief of staff, Frank Sanzillo stand charged with two counts of grand larceny for causing Smith The defendants renew their previous motion to dismiss the indictment on grounds of legal insufficiency of the evidence to sustain the remaining counts [CPL 210.20(1)(b) ], and of alleged defects in the grand jury proceedings [CPL 210.20(1)(c) ]. The defendant Montalto also renews his motions for severance and to dismiss the prosecution in the interests of justice. [CPL 210.20(1)(i) ].

                to be paid a biweekly salary from September 19, 1985 to January 8, 1986 and from January 9, 1986 to July 24, 1986;  and with one count of grand larceny for causing Walsh to be paid a biweekly salary from June 2, 1983 to July 9, 1986.   Senator Ohrenstein, Sanzillo and Joseph Montalto are charged with a single count of grand larceny for causing DelPriore to be paid on the Senate payroll from August 21 to November 12, 1986 during Montalto's bid to regain his former Senate seat.   It is alleged that Ms. DelPriore worked neither for the Senate nor for the campaign.   Corresponding counts of offering a false instrument for filing allege that defendants falsely certified to the State Senate that these enrollees on the payroll had performed "proper duties" of an employee of the Senate, when in fact defendants knew that they had performed no such duties during the periods specified
                

As originally framed, the indictment alleged a broad conspiracy centering upon the use of the legislative payroll to compensate campaign workers during the 1986 State senatorial elections. [see People v. Ohrenstein, 139 Misc.2d 909, 531 N.Y.S.2d 942 (Sup.Ct.N.Y.Co.1988) ]. The People's theory of the conspiracy was that campaign work was not among the "proper duties" of State legislative employees, and thus that certification of campaign workers to receive State salaries was larceny. The Court of Appeals, in dismissing the counts pertaining to campaign workers, was careful to note that

"statutes dealing generically with theft provide a basis for prosecution in cases where government employers use State employees for activities which are prohibited or are not within the employees' duties as defined by statute, rule or regulation. The point we are making * * * is that at the time the defendants acted, their conduct was not prohibited in any manner; nor could they have known that they were subject to criminal prosecution for their acts; there was no statute, nor was there any rule or regulation defining the duties of legislative assistants or limiting the nature or extent of their permissible political activities. In a criminal prosecution where these defendants are charged with engaging in activities prohibited by law, the absence of any such legal prohibition is fatal to the prosecution.

Our holding is a narrow one based on circumstances which no longer exist. As indicated, the Legislature, acting as employer, has now adopted a joint resolution which defines some of the duties of legislative assistants and imposes limitations on a legislator's use of such assistants. * * * The joint resolution specifically addresses the dissenter's concerns and prohibits legislators in the future from hiring staff assistants solely to work in political campaigns."

[People v. Ohrenstein, 77 N.Y.2d at p. 52, 563 N.Y.S.2d 744, 565 N.E.2d 493]

The basis for the Court of Appeals' holding is important to resolution of the parties' contentions.

The defendants argue that the Court of Appeals' determination that the use of the legislative payroll to staff campaigns was not expressly prohibited in 1986 not only establishes that evidence of the alleged conspiracy was inadmissible before the grand jury, but also means that the prosecution's characterization of such conduct as criminal impaired the integrity of the grand jury's fact finding and accusatory process. Consequently, the defendants argue, a new presentation is required, limited to evidence and legal instructions regarding alleged "no show" employees.

The People counter that the Court of Appeals implicitly recognized that as a matter of "policy and ethics" the defendants' use of the legislative payroll to promote candidates of their persuasion was improper The court finds neither argument persuasive, for the following reasons.

                and the expenditure unauthorized.  [see 77 N.Y.2d at pp. 48, 52, 563 N.Y.S.2d 744, 565 N.E.2d 493].  Hence the People reason, evidence of the use of the State payroll to employ campaign workers is a "bad act" and is relevant as part of a "common scheme or plan" to use the legislative payroll for the defendants' political ends, encompassing both the employment of campaign staff and political "no shows".   The relevance[151 Misc.2d 516]  of the evidence of campaign employment to the remaining charges is, the People argue, to show that the defendants knew that the State payroll was being used to compensate persons who were not performing the "proper duties" of legislative employees
                

IMPACT OF DISMISSAL OF THE CONSPIRACY AND RELATED COUNTS ON THE INTEGRITY OF THE ORIGINAL GRAND JURY PRESENTATION

The alleged error in the grand jury presentation at issue here is essentially the introduction of retrospectively inadmissible evidence of acts characterized as illegal, which had not been delineated clearly as such by law. The acts so characterized are not, of course, those currently underlying the remaining charges. The issue, therefore, is whether the receipt of evidence of those acts so characterized impaired the ability of the grand jury to fairly evaluate the evidence legally admissible as to the remaining counts. Similar problems have arisen in the context of appellate review of trial verdicts, but the court is unaware of specific precedent in the grand jury context. The cases cited by the defendants pertain to the introduction at trial of inadmissible evidence of acts of the defendant [People v. Blackette, 71 A.D.2d 1027, 420 N.Y.S.2d 400 (2d Dept.1979) ] or of others improperly joined with the defendant [People v. Castro-Restrepo, 169 A.D.2d 454, 565 N.Y.S.2d 461 (1st Dept.1991) ] from which the jury is allowed to infer the defendant's guilt. Some guidance may be obtained from such cases. [see, e.g. People v. Thompson, 116 A.D.2d 377, 382, 501 N.Y.S.2d 381 (1986) (evaluating the impact of evidentiary error before the grand jury according to standards developed in context of appellate review of trial verdicts) ].

The Supreme Court has held that the defendant is not deprived of the constitutional right to indictment by a grand jury where proof at trial establishes only one aspect of a broader offense, as long as the charges sustained at trial were wholly included within the indictment voted by the grand jurors. [United States v. Miller, 471 U.S. 130, 105 S.Ct. 1811, 85 L.Ed.2d 99 (1985) ]. This is so despite the argument that the grand jury, in its discretion, might not have returned an indictment solely upon evidence of the more limited charge. Therefore, the appellate narrowing of the theory of prosecution in the instant case cannot be said to have denied the defendants of their constitutional right to indictment by grand jury, as a matter of law.

Often in conspiracy prosecutions, the evidence at trial proves multiple conspiracies instead of the single broad conspiracy alleged in the indictment. Where the trial evidence connects the defendant only to one of these conspiracies, the issue arises whether the impact of the evidence which would have been inadmissible against the defendant but for the misjoinder of multiple conspiracies, deprived the defendant of a fair trial. Courts apply the doctrine of harmless error in these cases. [see Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946) ]. The considerations relevant in that context are useful to resolution of the issues here. Assuming the existence of legally sufficient evidence to support the judgment, those courts prescribe an examination of "the character of the proceeding, what is at stake upon its outcome, and the relation of the error asserted to casting the balance for decision on the case as a whole" [Id. at p....