People v. Garson

848 N.E.2d 1264, 6 N.Y.3d 604, 815 N.Y.S.2d 887

• Court: New York Court of Appeals
• Decided: March 30, 2006
• Status: Published

Opinions

OPINION OF THE COURT

ClPABICK, J.

We are asked to decide whether evidence presented to a grand jury that a judge accepted a benefit for violation of his duty as a public servant, as defined by the Rules of Judicial Conduct (22 NYCRR part 100), is legally sufficient to support six counts of receiving reward for official misconduct in the second degree (Penal Law § 200.25). We hold that the People’s reliance on the Rules to support the allegation that defendant violated his official duties was not improper. The Rules set forth a constitutionally mandated duty upon the judiciary and, when combined with the additional factor of receiving a reward, a violation of that duty may serve as a basis for prosecution under Penal Law § 200.25. We conclude that the evidence presented to the grand jury was legally sufficient to support the six counts of receiving reward for official misconduct in the second degree. The additional count charging defendant with official misconduct (Penal Law § 195.00 [2]) was properly dismissed.

I.

Defendant was a justice of the Supreme Court of the State of New York who at the time of these events was assigned to a matrimonial part in Kings County. After investigation, the People presented evidence to the grand jury that, from October 2001 through March 2003, defendant engaged in a course of conduct where on numerous occasions he violated his duty as a public servant for which he received benefits of cash and other gratuities. The People presented evidence that defendant and Paul Siminovsky, an attorney who regularly appeared before him, developed a relationship in 2000 wherein Siminovsky would buy defendant meals and give him gifts expecting and receiving preferential treatment in return. This relationship blossomed to the extent that by 2003, according to the testimony before the grand jury, Siminovsky was buying defendant lunch three to four times a week and drinks in the evening between three and five times a week.

In the first count under consideration here, the grand jury heard evidence that defendant conducted improper ex parte conversations about the “Levi case” with Siminovsky, for which defendant received a box of cigars as a reward. Specifically, Siminovsky represented Avraham Levi in a divorce proceeding which was pending before defendant (itself allegedly a circumvention of the random assignment system, facilitated by another Siminovsky client and defendant’s court clerk). The grand jury heard that while the Levi case was before defendant, the Kings County District Attorney’s office began to monitor defendant’s robing room by video and audio surveillance. Among the ex parte conversations captured was one where defendant is heard saying that Siminovsky would prevail in the Levi case even though he did not deserve it. Defendant also instructed Siminovsky to subpoena an expert witness who was unwilling to appear before the court and instructed him what questions to ask of the expert. Defendant told Siminovsky that he would not order the sale of the marital residence and that Mr. Levi would be entitled to its exclusive use.

Grand jury testimony revealed that shortly thereafter, Siminovsky was arrested and entered into a cooperation agreement with the District Attorney’s office. On March 4, 2003, while wearing a recording device but unaware of the video surveillance, Siminovsky brought defendant 27 Romeo and Juliet cigars—a box and two singles—at a cost of $272.28. Siminovsky brought them to the robing room and gave defendant an individual cigar, kept one for himself, and then placed the box in the top left drawer of defendant’s desk. Siminovsky thanked defendant for helping him formulate a winning strategy in the Levi case. Shortly thereafter, Siminovsky again thanked defendant for the “little pointers” while defendant removed the box of cigars from his desk and inspected it. Before leaving, Siminovsky stated, “[n]ow you’re just going to tell me what to write in the memo” in reference to the closing memorandum of law required at the conclusion of the Levi tried. Defendant responded that Siminovsky would have to charge extra for the memo and then went on to substantively detail what the memo should include.

The other five counts of receiving reward for official misconduct in the second degree allege that defendant accepted monies for referring clients, in his official capacity, to Siminovsky. The first of these referrals allegedly occurred in late 2001. Evidence before the grand jury showed that defendant told Siminovsky that defendant’s wife, Robin Garson, referred a client to Siminovsky and that he should compensate her in return.¹ The client is alleged to have known that defendant was a judge and was seen visiting him in his robing room. Subsequently, Siminovsky, while in defendant’s robing room, handed defendant $750 in cash as a referral fee for Robin Garson.

Grand jury testimony showed that defendant, for a second time, referred a friend to Siminovsky with the direction that Siminovsky “should take care of Robin.” In this instance, the individual knew defendant was a judge. They were seen together at a Brooklyn Bar Association function and were personal acquaintances. After Siminovsky was retained by this client, he wrote a check to Robin Garson for either $1,000 or $1,500.²

In a third instance, the People assert that defendant referred an employee of a restaurant he frequented to Siminovsky. The employee knew that defendant was a judge and he believed that the referral helped his case. He commented “[blecause I lived in Staten Island, what were the chances of Judge Garson getting the case?” Testimony also indicated that Siminovsky paid defendant $1,000 or $1,500 in cash for the referral by slipping it into his hand during a handshake in defendant’s robing room.

In the fourth referral, as alleged by the People, evidence before the grand jury showed that defendant informed Siminovsky that another attorney would be calling him with a referral. As a result of the call, Siminovsky once again obtained a new client. This client knew defendant to be a judge from having met him at a country club. Siminovsky gave defendant $500 in cash by placing it in an envelope and putting it in defendant’s desk drawer in his robing room. Siminovsky gave a fee to defendant but not to the attorney who facilitated the referral.

In the fifth and sixth referrals as alleged, defendant, according to grand jury testimony, accepted a lump sum payment as a reward for two referrals. Both clients retained Siminovsky as their counsel and likewise are alleged to have known that defendant was a judge from professional and personal relationships with him. Siminovsky paid defendant $1,000 for the referrals. At the time of the payment, March 10, 2003, Siminovsky was cooperating with the District Attorney’s office. On that day, while wearing a recording device but unaware of the video surveillance, Siminovsky handed defendant $1,000 in marked bills in defendant’s robing room. As he handed the money to defendant, Siminovsky stated the money was for the referrals of “Aiello” and “Caputo” as well as a third person who did not retain him as counsel.

Evidence before the grand jury showed that shortly after defendant placed the money in his pocket, Siminovsky said “[m]ake sure it doesn’t fall out of your pocket,” to which defendant replied “[fit’s not going to fall out for at least an hour or two. Then it is gone.” Siminovsky then left the robing room, at which point defendant took out the money, counted it, placed some of it in his pocket and placed the rest in an envelope in his desk drawer. Several minutes later, defendant called Siminovsky from his cell phone and left him a message asking him to return. Siminovsky returned 38 minutes later at which point defendant handed him the envelope with the money and suggested that Siminovsky make a check out to Robin Garson’s campaign committee since she was experiencing a shortfall of $25,000. Siminovsky returned the envelope to defendant and told him “[d]on’t worry about it.” Defendant took back the envelope and reiterated that Siminovsky should write a check out to the campaign committee. On March 12, 2003, defendant was arrested. The grand jury heard that at the time he had in his possession the 10 marked $100 bills that Siminovsky had given him on March 10, 2003.

Two indictments were filed and later consolidated.³ As relevant to this appeal, defendant was indicted on six counts of receiving reward for official misconduct in the second degree in violation of Penal Law § 200.25.

Penal Law § 200.25 provides that a “public servant is guilty of receiving reward for official misconduct in the second degree when he solicits, accepts or agrees to accept any benefit from another person for having violated his duty as a public servant.” The first count of the indictment states:

“The defendant, on or about March 4, 2003, in the County of Kings, being a public servant, did solicit, accept and agree to accept a benefit, namely a box of cigars, from another person, namely Paul Siminovsky, for having violated his duty as a public servant.”

To support the first count, the People submit that defendant violated his duty as a public servant by failing to comply with 22 NYCRR 100.3 (B) (6), which provides in part that “[a] judge shall not initiate, permit, or consider ex parte communications.” The People asserted that defendant violated this rule when he engaged in numerous ex parte communications with Siminovsky concerning the Levi case—advising Siminovsky what witnesses to call, what arguments to make and how defendant intended to rule on key issues in the case. This violation of the rule in conjunction with his acceptance of a benefit—the cigars—is sufficient, the People contend, to satisfy the elements of Penal Law § 200.25.

The remaining five counts under Penal Law § 200.25 charge defendant as follows:

“The defendant, on or about [five different dates], in the County of Kings, being a public servant, did solicit, accept and agree to accept a benefit, namely a sum of United States currency, from another person, namely Paul Siminovsky, for having violated his duty as a public servant.”⁴

In support of these charges, the People turn to 22 NYCRR 100.2 (C), which provides in part that “[a] judge shall not lend the prestige of judicial office to advance the private interests of the judge or others.” The People contend that this section prohibits defendant, a judge, from making referrals by lending the prestige of his judicial office to advance his own interests or those of another, here, Siminovsky. The grand jury could have inferred based on the evidence presented that defendant made the referrals to help Siminovsky’s practice and, in turn, to gain monetary benefits in the form of “referral fees.” Thus, the People maintain that defendant lent the prestige of his judicial office to Siminovsky in order to benefit Siminovsky and himself in violation of rule 100.2. The People argue that this dereliction of duty when coupled with the acceptance of benefits—payments—is sufficient to establish every element of Penal Law § 200.25 in each of the five instances.

Supreme Court granted defendant’s motion to dismiss the indictment to the extent of dismissing the six counts of receiving reward for official misconduct on the ground that the “evidence presented to the grand jury that the defendant violated the Rules [of Judicial Conduct] is legally insufficient to establish that he violated a duty he had as a public servant within the meaning of the Penal Law.” (4 Misc 3d 258, 266-267 [2004].) The essence of the court’s analysis was that the People could not rely on the Rules to establish that defendant’s conduct was in dereliction of his duties as a judge. Supreme Court further dismissed two of three counts of official misconduct (Penal Law § 195.00). The court held that sufficient evidence existed to support one count only: that defendant received compensation in exchange for advice under Penal Law § 195.00 (1) in violation of Judiciary Law § 18. The Appellate Division affirmed. A Judge of this Court granted leave, and we now modify and reinstate the six counts charging defendant with receiving reward for official misconduct under Penal Law § 200.25.

II.

“Where the language of a statute is clear and unambiguous, courts must give effect to its plain meaning” (Matter of Tall Trees Constr. Corp. v Zoning Bd. of Appeals of Town of Huntington, 97 NY2d 86, 91 [2001]). In addition, legislative history can be useful to aid in interpreting statutory language (see Riley v County of Broome, 95 NY2d 455, 463 [2000]). The receiving reward offense, defined in Penal Law § 200.25, is part of Penal Law article 200, which addresses “Bribery Involving Public Servants and Related Offenses.” In enacting Penal Law article 200, the Legislature intended its coverage to be comprehensive to help prevent and prosecute abuses of power in government.

A “public servant” is

“(a) any public officer or employee of the state or of 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” (Penal Law § 10.00 [15]).

Thus, “public servant” has been defined “broadly enough to include not only every category of government or public officer, but every employee of such officer or agency” (Donnino, Practice Commentary, McKinney’s Cons Laws of NY, Book 39, Penal Law art 200 [internal quotation marks omitted]). “Benefit” is also broadly defined to encompass “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” (Penal Law § 10.00 [17]). The plain language of Penal Law § 200.25 is consistently broad in that it embraces any variation of reward for benefit, whether one “solicits, accepts or agrees” to such reward.

In enacting Penal Law § 200.25, the Legislature has specifically defined the terms “public servant” and “benefit” and left for factual resolution whether a public servant has “violated his duty.” The Legislature’s decision not to further define the duty element is understandable given the hundreds of different types of public officials and employees whose misconduct was intended to be covered under the statute. The duty of a Department of Motor Vehicles clerk is not the same as that of a Health Department inspector or, for that matter, a judge. It would therefore have been difficult if not impossible for the Legislature to construct a definition of “duty” that would have encompassed all the derelictions of duty it sought to proscribe. Instead, the Legislature has required that the People prove the duty violated in each case. Such proof can come in the form of live testimony from a lay witness or expert, reliance on an internal or formal body of rules, or other indicia of a defendant’s knowledge of wrongdoing.

The Legislature’s comprehensive approach finds its roots in the legislative history. Article 200 of the Penal Law sets forth various crimes addressing bribery and bribe receiving, all of which involve a benefit or reward for a future act by a public servant. Prior to the enactment of Penal Law § 200.25, there was a void in the law that allowed for prosecution of bribery-like offenses where a benefit was given in contemplation of an act in the future (see Penal Law §§ 200.00, 200.10), but did not allow for prosecution when an improper act occurred and a benefit was later bestowed upon the public official for that act. Penal Law § 200.25, receiving reward for official misconduct, and its counterpart Penal Law § 200.20, rewarding official misconduct, are intended to fill that void (see Commission Staff Notes, reprinted following NY Cons Law Serv, Book 23B, Penal Law § 200.25; see People v Alvino, 71 NY2d 233, 244 [1987] [explaining that reward receiving, a lesser offense of bribe receiving, “involves accepting a reward for past official misconduct”]). Judges fall within the broad definition of “public servant.” And even prior to the enactment of Penal Law § 200.25, prosecution of “judicial officers” had been authorized under the bribery statutory scheme (see former Penal Law § 372).

Defendant urges us to interpret the statute to create a new void—the immunization of judges from criminal prosecution when they receive an illicit benefit after violating a rule of judicial conduct. Specifically, defendant claims that the term “violated his duty” lacks express legislative definition and cannot be proved by evidence that defendant violated his duty under the Rules. This claim lacks merit.

For an indictment to survive a motion to dismiss on sufficiency grounds, the evidence presented to the grand jury must set forth prima facie proof of the crimes charged (see People v Bello, 92 NY2d 523, 525-526 [1998]; CPL 70.10). Here, the evidence submitted before the grand jury satisfies this requirement to the extent that defendant is a public servant and that he accepted a benefit. Assuming for a moment that defendant was in violation of his duties as a public servant, it was also reasonable for the grand jury to infer that defendant received the benefits for having violated his judicial duties. Defendant urges us to interpret Penal Law § 200.25’s element that the public servant be in violation of his duty, to exempt judges because they are subject to what he deems the ethically-driven Rules of Judicial Conduct. We reject his contention.

The People set forth evidence that defendant offered ex parte advice to Siminovsky, an attorney appearing in a case pending before him. The evidence further showed that the advice conveyed was substantive in nature in that defendant informed Siminovsky that his client would prevail even though the client did not deserve to win. It was reasonable for the grand jury to find that defendant violated his explicit duty not to “initiate, permit, or consider ex parte communications . . . concerning a pending or impending proceeding” (22 NYCRR 100.3 [B] [6]).

The same is true as to defendant’s referral of cases to Siminovsky. The evidence presented to the grand jury supports an inference that defendant, in referring potential clients to Siminovsky, was lending the prestige of his judicial office for the sake of advancing private interests—both his own and Siminovsky’s. The grand jury could rationally have found that defendant meant for the clients to be influenced by his judicial position when they selected the lawyer he recommended, and also that defendant expected to be compensated by Siminovsky for the referrals. We do not imply that a judge, acting in a purely private, unofficial capacity, may not refer a friend or acquaintance to a lawyer when the judge expects no benefit for doing so (see Advisory Comm on Jud Ethics Op 93-89 [1993]); but the grand jury could have concluded that that is not what happened here.

We are further governed by the principle that “we must interpret a statute so as to avoid an ‘unreasonable or absurd’ application of the law” (People v Santi, 3 NY3d 234, 244 [2004], quoting Williams v Williams, 23 NY2d 592, 599 [1969]; see also People v Kramer, 92 NY2d 529, 539 [1998] [a court may consider whether one reading of the statute “might produce absurd and fundamentally unfair results”]; Matter of New York State Assn. of Criminal Defense Lawyers v Kaye, 96 NY2d 512, 519 [2001] [“courts have repeatedly rejected statutory constructions that are unconscionable or antithetical to legislative objectives”]). “The law binds all men equally, the Judges no less than the judged” (Matter of Stern v Morgenthau, 62 NY2d 331, 339 [1984]; see also Matter of Mason [State Commn. on Jud. Conduct], 100 NY2d 56, 60 [2003] [“Judges must be held to a higher standard of conduct than the public at large”]).

To hold otherwise, as urged by the dissent, would lead to the incongruous result of insulating judges from criminal liability under Penal Law § 200.25 because they have a formal body of rules governing their conduct while subjecting other public servants—whose duties are not defined in either Penal Law § 200.25 or any express code of conduct comparable to the Rules—to criminal liability for similar conduct. Such a result not only effectively immunizes judges but also runs counter to the legislative objective of deterring public servants from, and prosecuting them for, abusing their positions (cf People v Jaehne, 103 NY 182, 195 [1886] [“The crime of bribery . . . impairs public confidence in the integrity of official administration, a confidence most necessary to be maintained”]).

A comparison to prosecutions under Penal Law § 200.35 further exposes the flaw in the dissent’s position.⁵ Under that statute, a judge who accepts a benefit for authorized conduct can be prosecuted for receiving unlawful gratuities. However, if the conduct was unauthorized, as it is alleged here, defendant would be immunized from prosecution under the rationale set forth by the dissent since the People relied on the Rules of Judicial Conduct to establish the violations. We see no justification for such a perverse result—not in the plain language of the statute, not in the legislative history, and not in our precedents.

Thus we conclude that the People may rely on the Rules of Judicial Conduct to prove the element of a judge’s “duty as a public servant” within the meaning of Penal Law § 200.25. The Rules are a compendium of regulations that insures the integrity of the judiciary and the resultant confidence and impartiality that must repose in the justice system. Any other construction runs afoul of these goals. We hold the evidence presented to the grand jury is legally sufficient, in accordance with CPL 70.10, and supports every element of counts one through six of the indictment charging defendant with violating his duties as a public servant and then accepting benefits in exchange for those violations.

III.

In support of his position that the Rules cannot supply that necessary element, defendant, like the dissent, views our holding in People v La Carrubba (46 NY2d 658 [1979]) as a bar to prosecuting judges who violate an explicit code of conduct. In La Carrubba, a judge was charged with official misconduct under Penal Law § 195.00 (2) for improperly dismissing, for failure to prosecute, a simplified traffic information issued to a personal friend. In that prosecution, the People relied on Canons 2 and 3 of the Code of Judicial Conduct in support of the charges.

Unlike the Rules of Judicial Conduct in effect today that have been promulgated pursuant to the State Constitution and Judiciary Law § 212 (2) (d), the Code of Judicial Conduct that existed in 1974 was merely “a compilation of ethical objectives and exhortations” which were "[c]ouched in the subjunctive mood” (46 NY2d at 663). The Code was promulgated by the American Bar Association, adopted by the New York State Bar Association and then subsequently incorporated by reference in the respective rules of the Appellate Divisions. Canon 2 of the Code suggests that “A Judge Should Avoid Impropriety and the Appearance of Impropriety in All of the Judge’s Activities” and Canon 3 likewise evokes the proposition that “A Judge Shall Perform the Duties of Judicial Office Impartially and Diligently.” We refused to permit a prosecution for official misconduct under Penal Law § 195.00 (2) based upon these violations of the ethical canons contained within the Code of Judicial Conduct. To hold otherwise, we said, would permit “a prosecutor [to] initiate and take charge of proceedings to enforce the Code of Judicial Conduct” (46 NY2d at 664).

Here, there are two significant distinctions from La Carrubba. First, the Rules of Judicial Conduct do not present the same notice and enforcement concerns that we faced with the Code of Judicial Conduct in La Carrubba. Whereas the Code encouraged judges to act with utmost ethical forethought—it was framed in suggestive terms and applicable only as adopted by the Appellate Divisions—the Rules of Judicial Conduct are rooted in a constitutional amendment of State Constitution, article VI, § 20 (b) which states that “Qjudges and justices of the courts . . . shall also be subject to such rules of conduct as may be promulgated by the chief administrator of the courts with the approval of the court of appeals” (emphasis added).⁶

After this constitutional amendment was adopted, the Legislature enacted Judiciary Law § 212 (2) (b), which directs the Chief Administrator of the Courts to “[pjromulgate rules of conduct for judges and justices of the unified court system with the approval of the court of appeals, in accordance with the provisions of section twenty of article six of the constitution.” Pursuant to the Constitution and the statute, the Chief Administrator of the Courts promulgated the Rules of Judicial Conduct which were then approved by the Court of Appeals. These Rules, including 22 NYCRR 100.2 and 100.3, affirmatively state that a judge “shall” comply with the rules of conduct and set out a basic standard of compliance (see also 22 NYCRR part 100 [preamble] [“The text of the rules is intended to govern conduct of judges . . . and to be binding upon them . . . The rules are intended ... to state basic standards which should govern their conduct and to provide guidance to assist them in establishing and maintaining high standards of judicial and personal conduct”]).

The dissent relies on the preamble of the Rules which also states that “[t]hey are not designed or intended as a basis for civil liability or criminal prosecution” (see dissenting op at 631). However, preambles are not controlling of a statute or rule’s terms but are simply a useful aid for interpreting them when there is ambiguity (cf. McKinney’s Cons Laws of NY, Book 1, Statutes § 122). Moreover, our holding is not inconsistent with the preamble because the Rules themselves do not subject judges to criminal sanctions. Here, a breach of the Rules supplies proof that an official duty has been violated. It is the “receiving reward” aspect of defendant’s conduct that gives rise to the criminal prosecution, not just the existence or violation of the Rules.

The mandatory nature of the Rules and their constitutional source ameliorate the concerns we expressed in La Carrubba. The Rules provide a fundamental objective standard of how judges must conduct themselves. This addresses the concern that a prosecutor could use an advisory, aspirational code of ethics to help prove an element of a crime. It further diminishes any concern that a defendant would not have proper notice of the conduct prohibited, as the Rules and the Penal Law are clear as to their applicability.⁷

A second key difference is that in La Carrubba we were concerned with “the permissibility of the enforcement of the provisions of the Code of Judicial Conduct by resort to criminal prosecution” (La Carrubba, 46 NY2d at 662). There, the District Attorney was prosecuting the judge for refraining from performing duties inherent to the nature of her office—the duties to avoid the appearance of impropriety and to act impartially. In essence, the Penal Law was being used as a vehicle to pursue claims of “ethical improprieties]” which, contrary to the intent of the Legislature, effectively did nothing more than permit the prosecutor to “take charge of proceedings to enforce the Code of Judicial Conduct” (La Carrubba, 46 NY2d at 664).

In the present case, the criminal prosecution rests not on a violation of the Rules alone but on the acceptance of a benefit for violating an official duty defined by the Rules. Thus, a public servant who violates a tangible duty and further “solicits, accepts or agrees to accept” a benefit for the breach, is subject to prosecution under Penal Law § 200.25.® Had the judge as a public servant violated ethical duties alone—without accepting a benefit for the violation—and had the action not otherwise been prohibited by the Penal Law, the public servant would be subject only to discipline in a proceeding brought by the Commission on Judicial Conduct. This critical distinction alleviates many of the concerns we had in La Carrubba, including the concern that to allow criminal prosecution of ethical violations under Penal Law § 195.00 (2) would create an “awkward and often unseemly” landscape where different groups would likely “jockey for prosecutorial priority or advantage” (46 NY2d at 665).^{8 9}

We thus reject defendant’s argument that La Carrubba is controlling here. The People’s use of the Rules of Judicial Conduct to establish the duty element before the grand jury in this case did not render the proof insufficient or the indictment defective.

The People’s remaining claim as it relates to the dismissal of the charge of official misconduct in violation of Penal Law § 195.00 (2) is meritless.

Accordingly, the order of the Appellate Division should be modified by reinstating six counts charging defendant with receiving reward for official misconduct in the second degree and, as so modified, affirmed.

1 . Defendant’s wife, Civil Court Judge Robin Garson, was in private practice at the time.

2 . Siminovsky did not recall whether he gave the check to defendant or to Robin Garson.

3 . On May 21, 2003, defendant was charged in indictment No. 3515/2003 with six counts of receiving reward for official misconduct in the second degree (class E felonies), one count of official misconduct and one count of receiving unlawful gratuities (class A misdemeanors). On August 5, 2003, defendant was charged in indictment No. 5332/2003 with bribe receiving in the third degree (a class D felony) and three counts of official misconduct (one of which superseded the official misconduct count of the earlier indictment).

Supreme Court concluded there was legally sufficient evidence to support the charges of receiving unlawful gratuities (Penal Law § 200.35), bribe receiving in the third degree (Penal Law § 200.10) and one count of official misconduct (Penal Law § 195.00 [1]). A trial on those counts is pending.

4 . Counts two through six of indictment No. 3515/2003 allege the dates on which defendant allegedly accepted a fee: October 9, 2001, October 31, 2001, September 5, 2002, November 15, 2002, and March 10, 2003.

5 . Penal Law § 200.35 reads: “A public servant is guilty of receiving unlawful gratuities when he solicits, accepts or agrees to accept any benefit for having engaged in official conduct which he was required or authorized to perform, and for which he was not entitled to any special or additional compensation.”

6 . Article VI, § 20 of the State Constitution was amended in 1977 and was not applicable to defendant in La Carrubba.

7 . To the extent that defendant raises a vagueness “as applied” challenge to Penal Law § 200.25, we are not persuaded. The failure to define each term in a criminal statute does not render the statute void for vagueness (see People v Nelson, 69 NY2d 302 [1987]). The statute at issue, as applied to these facts, is “sufficiently definite to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute” (People v Stuart, 100 NY2d 412, 420 [2003] [citations and internal quotation marks omitted]).

8 . See e.g. United States v Davis, 183 F3d 231, 245 (3d Cir 1999); ReSource N.E. of Long Is., Inc. u Town of Babylon, 80 F Supp 2d 52 (ED NY 2000); People v Blumenthal, 55 AD2d 13 (1st Dept 1976).

9 . Certainly there are violations where the same conduct can form the basis of a criminal prosecution and an administrative proceeding. The burdens of proof are different, as are the penalties that may be imposed, and both can be prosecuted in tandem. Typically, the criminal prosecution goes forward first and the disciplinary proceeding is held in abeyance pending the outcome of the criminal prosecution.