Opinion
791A-2005.
Decided July 28, 2005.
Hon. Thomas J. Spota, District Attorney, Suffolk County, Ming Liu Parson, Assistant District Attorney, Riverhead, New York.
Stephen P. Scaring, PC, Garden City, NY, Attorney for Defendant.
Defendant Oleg Samilenko has moved through counsel for omnibus pre-trial relief, and has submitted an affirmation and memorandum of law in support thereof. The People have submitted an affirmation in opposition and a memorandum of law, to which defendant provided a reply memorandum of law, and the People a "surreply" and an affidavit. The request for relief is determined as follows:
It is well settled that in a motion to dismiss an indictment, the sufficiency of the People's presentation is properly determined by inquiring whether the evidence viewed in the light most favorable to the People, if unexplained and uncontradicted, would warrant conviction by a petit jury (see, People v. Jennings, 69 NY2d 103, 114). The Court has carefully reviewed the Grand Jury minutes, and has done so with that inquiry in mind. It concludes that the presentation was sufficient both with respect to the evidence and to the charge given by the prosecutor. The request to dismiss for insufficiency is denied.
Defense counsel raises several specific issues, and they are addressed as follows:
(1)Defendant argues that the charges of bribery, second degree and conspiracy, fourth degree (counts one through three), must be dismissed on the grounds that co-defendant Eleanor Seidman-Smith was not a public servant, i.e., she worked for a private, not-for-profit corporation, the American Red Cross. The fact that she was an employee of a private not-for-profit corporation is not dispositive of whether or not she was a public servant.
Penal Law § 10.00(15) defines a public servant as ". . . (a) any public officer or employee of the state or any political subdivision thereof or of any governmental instrumentality within the state, or (b) any person exercising the functions of any such public officer or employee. The term public servant includes a person who has been elected or designated to become a public servant. (Emphasis added)."
This definition ". . . should not be narrowly viewed as applying only to New York State employees, but is also aimed at every person specifically retained to perform some government service (citation omitted)" (see, Matter of Onondaga County District Attorney's Office, 92 AD2d 32, 36).
"In determining whether an individual is a public officer, the court must consider the nature of the office, the functions and duties of the office with regard to the manner in which they concern and affect the public, whether such duties involve some portion of the sovereign power . . . and whether the agency involved was created for public purposes" (see, People v. Confoy, 110 Misc 2d 252, 258).
Seidman-Smith administered the Community Service program in Suffolk County for the Red Cross. That agency had contracted with Suffolk County to oversee and coordinate the activities performed by defendants who, in lieu of jail, were sentenced by Judges in Suffolk County to perform "community service." Clearly, the tasks she performed were "governmental services" in the true meaning of the word. Although she might not have been paid by New York State, or Suffolk County, Seidman-Smith was directly answerable to the Courts themselves. She, first, was responsible for screening defendants to determine their eligibility to perform community service and then, if the Court went along, she was required to notify the sentencing Judges when a defendant completed, or failed to complete, the community service segment of his/her sentence. She was, clearly, exercising the functions of a public servant (see, People v. Kruger and Rynecki, 87 AD2d 473).
The essence of the crime of bribery is the wrong done to people by corruption in the public service (see, People v. Chapman, 13 NY2d 97, 101).
(2)Defendant claims there was insufficient evidence to establish the existence of an "agreement" or "understanding" between himself and Seidman-Smith. He argues that he merely made a charitable contribution to a third party organization and this does not constitute a "benefit" within the meaning of Penal Law § 200.03, which defines bribery, second degree (counts one and two). The Grand Jury minutes show that Seidman-Smith was an officer of The National Community Sentencing Association, and, as such, was directly responsible for organizing a national convention or meeting of its members to be held on Long Island. The necessary funds for a successful meeting were simply not available until, miraculously, the Association received a donation from the defendant in the amount of $30,000.00. After receipt of the funds, defendant's community service obligations changed dramatically: from cleaning up the grounds of a county park to working in the community service office under the direct supervision of Seidman-Smith. Clearly, there was sufficient evidence of a quid pro quo or "understanding."
(3)Defendant claims that he did not confer "any benefit" upon his co-defendant. Penal Law, section 10.00(17) defines benefit to mean ". . . 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." This definition was included in the prosecutor's charge. The third party here received the benefit of a generous donation of $30,000.00.
(4)Defendant's arguments for dismissal of count three, conspiracy, fourth degree have been addressed above.
(5)Defendant's argument for dismissal of counts four and five, falsifying business records and offering a false instrument for filing must also be rejected. Again, the Grand Jury minutes contain evidence to show that time cards purporting to confirm defendant's performance of his hours of community service, and which both defendants knew would be submitted to the probation department and, ultimately, relied upon by the sentencing Judge, were knowingly falsified (see, People v. Fiedler, 155 AD2d 613).
(6)The Court concludes there is no reason to disclose the minutes, or any portion thereof to defense counsel.
(7)Upon consent, a Sandoval hearing will be held prior to trial.
(8)Defense counsel argues that defendant's oral statements to his probation officer must be suppressed because defendant, without the benefit of Miranda warnings, was compelled to answer questions posed by his probation officer, resulting in statements that could be used against him at trial. The People argue that defendant's statements to his probation officer were part of the res gestae, viz., they were ". . . made by the defendant in furtherance of the offenses charged."
The Court, is of the opinion that although the statements do not fall into the typical Huntley scenario, i.e., a defendant in custody being questioned by police, the circumstances surrounding their utterance should be examined. As the Second Department noted in People v. Parker (82 AD2d 661,666) ". . . [t]he reciprocal obligations . . . arising from the relationship of parole have been said to exact heavy psychological pressure' on a parolee to answer inquiries made by his parole officer . . . rendering inadmissible responsive incriminating statements made by defendant to his parole officer in the absence of Miranda warnings (citations omitted)." While the Parker case dealt with a parole officer, there seems to be no reason to distinguish that from a case involving a probation officer, as at bar (see, People v. Quickenton, 129 Misc 2d 607).
In Parker, it was noted that "[t]he distinction must be properly drawn between routine interviews required by parole, not implicating the need for Miranda warnings, and statements extracted by the parole officer and then offered against the parolee . . . in a trial . . . necessitating Miranda warnings" ( People v. Parker, supra, at 666).
While the People take the position that no Huntley hearing is required here, and while the testimony at the Grand Jury might suggest there was no "interrogation," only routine questions during regular office visits, the fact is the People's 710.30 makes reference to defendant's responses and, of course, cross-examination of the probation officer at a hearing might put the dialogue in a totally different light.
A Huntley hearing will be held immediately prior to trial.
(9)Defendant, moves to sever his case from co-defendant Seidman-Smith's, and to be granted separate trials, claiming that they will have antagonistic defenses.
As noted in People v. Lane, 56 NY2d 1, an applicant seeking a severance must either demonstrate that the counts were not joinable under the statutory criteria (CPL 200.20[2]), or seek a discretionary severance under CPL 200.20(3). Discretionary severances will be granted only if the Court is persuaded that it should do so "in the interest of justice and for good cause shown" ( People v. Lane, supra at 7).
Here, the counts were properly joinable. However, it appears that much of the People's evidence against the two co-defendants is the same, and defendant claims their defenses are antagonistic. That may be true, but the Court is inclined at this point to hold the request for severance in abeyance to see how the pre-trial proceedings, including hearings, play out. It may be that the request for severance will become moot.
(10)Defendant's request to make additional motions, if necessary, is granted.
The foregoing constitutes the decision and order of the Court.