61 N.Y.2d 321 | NY | 1984
OPINION OF THE COURT
Defendant appeals from an order of the Appellate Division, which affirmed, with one Justice dissenting, a judgment entered on a jury verdict finding him guilty of bribe receiving in the second degree (Penal Law, § 200.10). The conviction came after juries had failed to agree in two previous trials.
The principal issues raised on this appeal are the legal sufficiency of the evidence to establish that the alleged bribe was offered to defendant to affect his judgment or action “as a public servant,” and whether the conviction must be reversed because a variation between the definition of the crime in the court’s charge and the language contained in the indictment improperly changed the theory of the prosecution and prejudiced the defense.
Defendant, was employed as a court clerk for a Criminal Court in New York City. On March 15, 1979, he was approached by James Villafana, an undercover agent for the office of the Special Prosecutor posing as a gypsy cab
Defendant was not arrested until some time later and none of the bribe money was traced to him. He denied soliciting or receiving it.
Defendant’s first point on this appeal, and the point on which the Justices at the Appellate Division disagreed, is that the statute prohibits solicitation or receipt of money to influence his judgment or action and that because he did not have the authority in his job to affect the disposition of Villafana’s tickets, he could not have been guilty of bribe receiving in the second degree. The statute defines the crime as follows: “A public servant is guilty of bribe receiving in the second degree when he solicits, accepts or agrees to accept any benefit from another person upon an agreement or understanding that his vote, opinion, judgment, action, decision or exercise of discretion as a public servant will thereby be influenced.” (Penal Law, § 200.10.) The
Defendant next challenges the court’s instructions to the jury. He contends that they differed significantly from the theory of the crime charged in the indictment and therefore require reversal. Although the statute proscribes solicitation or an agreement to accept or acceptance of a bribe, the indictment and the bill of particulars charged that defendant “solicited, agreed to accept and accepted” a bribe. Defendant contends that the prosecution was bound by this use of conjunctive language and that in the absence of an amendment to the indictment and bill of particulars the court’s instructions in the language of the statute rather than the language of the indictment were error and the judgment must be reversed inasmuch as the jury’s verdict was based upon them.
It is familiar law that the requirement found in section 6 of article I of the State Constitution that “[n]o person shall be held to answer for a capital or otherwise infamous crime * * * unless on indictment of a grand jury” serves a threefold purpose. First, an indictment provides the defendant with fair notice of the accusations made against him to
Defendant asserts that this indictment did not give him fair notice of the prosecution’s theory of the crime. We disagree. Defense counsel was not hampered in his ability to prepare by the use of the language in the indictment and bill of particulars. At the beginning of the trial he asked the court to require the People, if they were to sustain their burden, to prove that defendant solicited and agreed to accept and accepted a bribe. In support of this pretrial motion he contended that he had relied on the bill of particulars as notice of the prosecutor’s trial strategy and it was crucial to the defense that it not be changed. Defense counsel had participated in defendant’s second trial, however, and he had participated in the preliminaries to the third trial. He was aware of the prosecution’s strategy and he admitted as much. The court correctly denied counsel’s motion (see People v Taylor, 74 AD2d 177, 181).
Moreover, the trial court’s charge that the jury could find defendant guilty if it found that he either solicited or agreed to accept or accepted a bribe, rather than requiring cumulative proof of all three acts, did not usurp the Grand Jury’s powers. It correctly advised the trial jurors that the prosecution need not prove allegations in an indictment that are extraneous to the material elements of the offense charged (see People v Rooney, 57 NY2d 822; People v Spann, 56 NY2d 469, supra). The use of the conjunctive “and” rather than the disjunctive “or” in the indictment charged more than the People were required to prove under the statute and did not bind the prosecution to prove all three acts (see People v Clougher, 246 NY 106,112). The rule was stated in People v Nicholas (35 AD2d 18, 20 [Cooke, J.]): “Where an offense may be committed by doing any one of several things, the indictment may, in a single count, group them together and charge the defendant with
People v Rooney (supra) is to the point. In that criminally negligent homicide case, the indictment charged that defendant “operated a motor vehicle at an excessive rate of speed, on the wrong side of the road while intoxicated and struck another vehicle” causing the death of another person. Defendant contended that he could not be found guilty of criminally negligent homicide unless the jury found that he had committed all of the acts mentioned in the indictment, a matter of some consequence because the jury by its verdict finding criminal negligence had also acquitted defendant of a separate count of driving while under the influence of alcohol. Because the allegation of driving while under the influence was not necessary to sustain the conviction for criminally negligent homicide, we sustained the conviction.
Similarly, in People v Spann (56 NY2d 469, supra), we held that the trial court had not constructively amended an indictment charging robbery by allowing proof that the defendant stole drugs, rather than jewelry or money as alleged in the indictment. The defendant in his testimony had admitted stealing the drugs, and, because the nature of the property stolen was not a material element of the charge which required only proof that “property” was stolen, the robbery conviction was affirmed. In People v Feldman (50 NY2d 500) we considered the appeal of a conviction of criminal sale of a controlled substance in the third degree where the indictment charged the defendant with selling drugs to an undercover policeman and the evidence at trial revealed that the drugs were actually sold to an informant who in turn sold them to the policeman. We held that the person to whom the drugs were sold was immaterial to the corpus delicti of the crime charged.
To be distinguished from these and similar cases are those in which the jury is charged in a manner that changes the theory of the prosecution from that in the indictment and bill of particulars, or otherwise prejudices
Defendant’s two remaining points require little discussion. First, he contends that the court erred in failing to hold a hearing to consider whether the prosecutor used his peremptory challenges during jury selection to disqualify substantially more black veniremen than white veniremen. Counsel contends that the challenges were used to systematically exclude minority jurors. We have held recently, however, that such hearings are not required and that a prosecutor is not required to disclose his reasons for excluding prospective jurors in a particular case (People v McCray, 57 NY2d 542, cert den _. US _, 103 S Ct 2438; but see McCray v Abrams, 576 F Supp 1244). Defendant asks us to reconsider that decision but we see no reason to do so, particularly in view of the record in this case which fails to contain evidence of systematic exclusion.
Finally, defendant contends the court erred in restricting his summation because it prevented him from commenting on the investigator’s failure to “tail” defendant after defendant received the bribe money. The ruling was discretionary and well within a stipulation made by counsel earlier in the trial not to discuss certain matters. It presents no grounds for reversal.
Accordingly, the order of the Appellate Division should be affirmed.
Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer and Kaye concur.
Order affirmed.