People v. Pinto

• Decision Date: 29 September 1976
• Parties: PEOPLE of the State of New York v. Francis C. PINTO, Defendant.
• Court: New York City Court

Page 385

387 N.Y.S.2d 385

88 Misc.2d 303

PEOPLE of the State of New York v. Francis C. PINTO, Defendant.

City Court of Mount Vernon.

Sept. 29, 1976.

Andrew J. Fiore, Pleasantville, for defendant.

Carl A. Vergari, Dist. Atty. (Michael R. Edelman, Yonkers, of counsel), for people.

DECISION

IRVING B. KENDALL, Judge.

A misdemeanor complaint is an accusatory instrument filed with a local criminal court charging a person with a crime (CPL 100.10). It serves as the basis for commencement of a criminal action, permitting court arraignment and Termporary control over the defendant's person where there is as yet no prima facie case.

However, a misdemeanor complaint is not designed for prosecution purposes and a defendant is Not required to plead to a misdemeanor complaint and cannot be tried thereon unless he consents. (CPL 170.65, subdivisions 1, 3).

By statute (CPL 100.10, subd. 1; CPL 170.65, subd. 1) a defendant Has the right to be prosecuted by information.

This right is a substantial one and takes into account the basic difference between these accusatory instruments--i.e., that a misdemeanor complaint may rest on hearsay allegations whereas an information may not. (CPL 100.40, subds. 1, 4; People v. Weinberg, 34 N.Y.2d 429, 431, 358 N.Y.S.2d 357, 358, 315 N.E.2d 434, 435).

It is elementary that an information charging a person with a crime must be supported by non-hearsay allegations which would establish the defendant's commission of the crime charged. People v. Conoscenti, 83 Misc.2d. 842, 844, 373 N.Y.S.2d 443, 445; People v. James, 4 N.Y.2d 482, 176 N.Y.S.2d 323, 151 N.E.2d 877; People v. Jeffries, 19 N.Y.2d 564, 281 N.Y.S.2d 67, 227 N.E.2d 870; People v. Tennyson, 19 N.Y.2d 573, 281 N.Y.S.2d 76, 227 N.E.2d 876.

In this criminal action the District Attorney served upon the defendant Francis C. Pinto a misdemeanor complaint charging him with 12 criminal conflict of interest counts in violation of Sections 801--805 of the General Municipal Law of the State of New York and one criminal official misconduct charge in violation of Section 195.00 of the Penal Law.

The defendant has pleaded not guilty to all 13 counts and therefore has put in issue the question of his guilt or innocence.

As was his statutory right, the defendant refused to be tried on the hearsay allegations of the Frauds Bureau of the Westchester County District Attorney's Office and moved pursuant to Section 170.65 CPL for an order requiring the District Attorney to either file a new information containing factual rather than hearsay allegations, or to file supporting depositions which would be legally sufficient to substantiate the hearsay allegations in the complaint.

The District Attorney consented in writing to defendant's motion by filing supporting depositions which allege in substance that the defendant in a statement made to Assistant District Attorney Michael R. Edelman in the presence of his attorney Andrew Fiore, Esq. admitted receiving payment for preparing each and every building plan which is the subject of the first 12 counts and admitted that it was his duty and function as Deputy Building Commissioner to review all building plans prior to the issuance of building permits and when the buildings or alterations were constructed it was his function and duty to inspect the work in order to determine if a certificate of occupancy should be issued.

The defendant does not argue that his conduct did not constitute a conflict of interest. He contends that it was not Criminal conduct within the meaning of Sections 801--805 of the General Municipal Law since he had no 'interest' in a 'contract' with the City of Mount Vernon within the meaning of the statutes.

Whether the defendant can prevail in his argument depends upon this court's interpretation of the key word in Section 801, namely 'contract'.

Article 18 of the General Municipal Law dealing with conflicts of interests of municipal officers and employees was enacted by the New York State Legislature in 1964 to protect the public from municipal contracts influenced by avaricious officers, to protect innocent public officers from unwarranted assaults on their integrity and to encourage each community to adopt codes of ethics not in conflict with the State law.

Section 801 provides that no municipal officers 'shall have an interest in any contract with the municipality' when such officer 'has the power or duty to negotiate, prepare, authorize or approve the contract'.

Section 800(2) defines a contract as 'any claim, account Or demand against or agreement with a municipality, express or implied.' (Italics supplied.).

Section 800(3) defines 'interest' as a 'direct * * * or indirect pecuniary or material benefit accruing to a municipal officer * * * as the result of a contract with the municipality which such officer * * * serves.'

Section 803 requires a municipal officer who has an actual or prospective interest in a contract with the municipality to publicly disclose the nature and extent of such interest in writing to the governing body as soon as he has knowledge of such actual or prospective interest.

Section 805 provides that any municipal officer or employee who willfully and knowingly violates Sections 801--804 shall be guilty of a misdemeanor.

It is defendant's contention that he did not commit a crime by accepting moneys for preparing building plans within the meaning of Section 801 since he was not involved in a contract with the City of Mount Vernon.

What is a contract?

A contract is an agreement in which a party undertakes to do or not to do, a particular thing. No contract can be demonstrated to exist without the indispensable essentials of an agreement or meeting of the minds of...