SUPREME COURT OF THE STATE OF NEW YORK NASSAU COUNTY: CRIMINAL TERM ------------------------------------------------------------------------X THE PEOPLE OF THE STATE OF NEW

YORK, : : : : : -against: : WILLIAM FLANAGAN, JOHN HUNTER : & ALAN SHARPE, : : Defendants. : ------------------------------------------------------------------------X

AFFIRMATION IN OPPOSITION TO OMNIBUS MOTIONS

Nassau County Indictment No. 338N12

STEPHEN ANTIGNANI, an attorney admitted to practice law in the State of New York, affirms the following statements to be true under the penalty of perjury: 1. I am an Assistant District Attorney, of counsel to Kathleen M. Rice, the District

Attorney of Nassau County. I am submitting this affirmation in opposition to defendants‘ motions to release Grand Jury minutes, to inspect the Grand Jury minutes and reduce or dismiss the indictment, to sever the defendants from being tried jointly, and for Sandoval hearings. I make the statements in this affirmation upon information and belief, based on my review of the Grand Jury minutes, and the records and files of the Nassau County District Attorney‘s Office. 2. On or around May 19, 2009, an administrator from JFK High School in Bellmore

reported a theft of electronic equipment from the school. During that spring, there had been a number of thefts from the high school, and, with this newest theft, nearly $11,000.00 worth of equipment had been stolen. In her initial report to a uniformed officer from the Nassau County Police Department (―NCPD‖) 7th Precinct, the school principal named a wealthy and well-connected student as the suspect in this most recent theft. This student was also an employee of the Nassau County Police Department Ambulance Unit and the son of Gary Parker,

a NCPD benefactor. The principal stated that she wanted the perpetrator of the crime arrested and also signed a statement to that effect. 3. Following the principal‘s initial report, the matter was referred to the 7th Precinct

Detective Squad. The Commanding Officer of the 7th Precinct Detective Squad referred the matter to the NCPD Internal Affairs Unit (―IAU‖) because the suspect was a department employee. Within a day, defendant Hunter, a NCPD chief who was not in the detective squad chain of command, called the squad commander to let her know that IAU would not be investigating the matter despite the suspect‘s employment with the department. At the time, defendant Hunter had no supervisory authority over either the squad or IAU, but he had a long-standing friendship with the student‘s father, and Hunter‘s personal interest and involvement in this type of felony investigation seemed unusual. By his words and actions, defendant Hunter communicated to the Commanding Officer that he preferred that this well-connected teen not be arrested for the thefts. 4. Following defendant Hunter‘s phone call, the squad commander assigned an

unindicted co-conspirator – a detective who had previously dealt with the school principal – to handle the case. To satisfy defendant Hunter, the squad commander, defendant Sharpe, and this newly assigned detective decided that it would be helpful to have the school principal agree to withdraw any criminal charges in writing. On or about May 21, 2009, the unindicted

co-conspirator interviewed the principal and, during the interview, the principal steadfastly maintained that she wanted the department to proceed with its investigation against the student. Because of the principal‘s stated position, the unindicted co-conspirator decided not to broach the subject of withdrawing the criminal complaint against the student.

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5.

On May 22, 2009, defendant Sharpe followed defendant Hunter‘s instruction and

invited Parker into the precinct to discuss his son‘s situation. During this meeting, defendant Sharpe showed Parker stolen property that had been turned in to a different precinct by the son‘s friend several days earlier. Defendant Sharpe also gave Parker his business card and personal cell phone number and said that Parker could use the personal cell phone number at any time. Defendant Sharpe did not record Parker‘s statement to him in any manner, even though the statement included an admission that his son had stolen the school equipment. 6. Following his meeting with defendant Sharpe, Parker met with the school principal.

Parker raised the prospect of the principal agreeing to withdraw the criminal complaint against Parker‘s son if Parker were able to get all of the stolen property returned to the school. The principal declined the proposal because she had never afforded that opportunity to any other parent. After Parker left the precinct to speak to the principal, defendant Sharpe called him several times. 7. On May 23, 2009, defendant Hunter met with Parker in a diner and discussed the

investigation. The two had been friends: Parker had taken defendant Hunter out to dinner numerous times and defendant Hunter had gotten Parker‘s son a position with the NCPD. Defendant Hunter had also previously assisted Parker‘s son in avoiding moving violations. Following the diner meeting, defendant Hunter called the 7th Precinct and had a two-minute conversation with defendant Sharpe. 8. Over the next week, defendant Hunter offered his assistance to Parker and initiated

e-mail communications, telling Parker that he was available to assist him. On May 30, 2009, Parker asked defendant Hunter by e-mail to get the 7th Squad to ―lay low‖ on his son‘s case

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because Parker‘s lawyer was trying to resolve the situation. Defendant Hunter assured Parker that he would make sure that the unindicted co-conspirator laid low. 9. On June 12, 2009, nearly one month after the principal filed her complaint, Parker

informed defendant Hunter that the stolen property in the custody of the NCPD 7th Squad should be returned to the school on June 16, 2009. Parker also provided defendant Hunter with other information necessary to return the stolen property. That same day, defendant Hunter directed defendant Sharpe to return the stolen property. 10. On June 16, 2009, pursuant to defendant Hunter‘s directive, defendant Sharpe

instructed a detective, who was not the unindicted co-conspirator, to return the property to the school. On this same date, Parker‘s wife went to the school to return other stolen property – property that the NCPD never photographed, inventoried or documented. 11. During this visit, the detective asked the school principal to sign a withdrawal of

prosecution. The principal refused. Following her refusal, at defendant Sharpe‘s direction, the detective did not leave the stolen electronic equipment at the school, stating that he had to return the property to the precinct because it was evidence in a criminal investigation. Defendant Sharpe, however, made no effort to have the detective retrieve the stolen property returned to the school by Parker‘s wife. In fact, defendant Sharpe gave no direction that Parker‘s wife be interviewed at all. 12. After learning of what happened at the school, defendant Hunter continued to offer

his help to Parker and, despite knowing that the principal had stated that she did not wish to withdraw her criminal complaint, Parker‘s son was still not arrested. 13. Following the principal‘s refusal to withdraw her criminal complaint, Parker

sought assistance from defendant Flanagan, a sergeant in the Asset Forfeiture Unit of the NCPD 4

and a close friend of then NCPD Commissioner Lawrence Mulvey. Defendant Flanagan, like defendant Hunter, had no supervisory authority over the NCPD Detective Division. Defendant Flanagan, who was later promoted to 2nd Deputy Commissioner of the NCPD, was also friends with Parker: Parker had treated him to dinners and Yankee tickets. 14. After Parker and defendant Flanagan conversed at the U.S. Open Golf Tournament,

on June 23, 2009, defendant Flanagan e-mailed Parker that he had ―put pieces in motion‖ to have the stolen property returned to the school. Throughout the summer, while Parker‘s son remained unarrested, defendant Flanagan made numerous attempts to get the stolen property returned to the school.1 15. Four months after the school‘s report of the theft, on September 1, 2009, Flanagan

successfully directed the unindicted co-conspirator to return the stolen property to the school,2 leading Parker to assume that his son would not be arrested. During this return of property, the principal again refused to sign a withdrawal of the criminal charges. This time, however, the unindicted co-conspirator, following defendant Flanagan‘s direction, left the property at the school. Still, Parker‘s son was not arrested. 16. On September 9, 2009, defendant Flanagan informed Parker that he had

successfully arranged for the stolen property to be returned to the school. The following day, Parker sent defendant Flanagan gift cards of at least $200 value. Defendant Flanagan did not return the cards.

1

In a statement to the press that the People intend to introduce at trial, defendant Flanagan admitted that he actually reached out to the principal about the Parker situation, then as a Second Deputy Police Commissioner. 2 To this day, all of the property stolen by Parker‘s son has not been returned to the school. In his plea agreement, Parker‘s son agreed to pay restitution for the electronic equipment that was never returned.

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17.

In September 2010, defendant Sharpe formally closed the case against Parker‘s son

by authorizing a close-out memorandum that falsely stated that the school administrator did not want to proceed with criminal charges against Parker‘s son. 18. In April of 2011, the Long Island Press ran a newspaper article entitled

―Membership has its Privileges.‖ In the article, the author discussed how Parker was able to prevent his son from being arrested for the spring of 2009 felony thefts from JFK High School because he had donated large sums of money to a police foundation spearheaded by Commissioner Mulvey. Following this article, the Nassau County District Attorney‘s Office began an investigation into potential unlawful privileges given to civilian donors to the police foundation by high-ranking members of NCPD. 19. On September 8, 2011, Parker‘s son was indicted on a third-degree burglary charge

and criminal possession of stolen property. On March 16, 2012, he pled guilty to third-degree burglary and second-degree criminal possession of stolen property, both class D felonies. 20. On February 23, 2012, following a seven-month-long Grand Jury investigation that

included the presentation of 23 witnesses and 40 exhibits, defendants William Flanagan, John Hunter and Alan Sharpe were charged in a ten-count indictment. Defendant Flanagan was charged with Receiving Reward for Official Misconduct (P.L. § 200.25), Conspiracy in the Sixth Degree (P.L. § 105.00), and two counts of Official Misconduct (P.L. §§ 195.00[1], [2]). Defendant Hunter was charged with Conspiracy in the Sixth Degree (P.L. § 105.00), and two counts of Official Misconduct (P.L. §§ 195.00[1], [2]), and defendant Sharpe was charged with Conspiracy in the Sixth Degree (P.L. 105.00), three counts of Official Misconduct (P.L. 195.00[1], [2]), and Offering a False Instrument for Filing (P.L. § 175.30).

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21.

In an omnibus motion dated May 15, 2012, defendant Flanagan asked the Court to

(i) dismiss the indictment as facially insufficient; (ii) inspect the Grand Jury minutes and release them to the defense, and dismiss all of the counts in the indictment for legal insufficiency and impairment of the integrity of the Grand Jury proceedings; (iii) dismiss or reduce the charges in the indictment; (iv) dismiss the indictment for impairment of the integrity of the Grand Jury; and (v) sever his trial from that of his co-defendants. 22. In an omnibus motion dated May 14, 2012, defendant Hunter similarly asked this

Court to (i) inspect the Grand Jury minutes, release the Grand Jury minutes to the defense, and dismiss the indictment for legal insufficiency; (ii) dismiss the indictment due to the impairment of the integrity of the Grand Jury presentation; (iii) sever his trial from that of his co-defendants, and (iv) order a Sandoval hearing. 23. In an omnibus motion dated May 14, 2012, defendant Sharpe asked this Court to (i)

dismiss the Official Misconduct charges against defendant, (ii) inspect the Grand Jury minutes, release the Grand Jury minutes to the defense, and dismiss the indictment; and (3) sever his trial from that of his co-defendants. 24. As discussed in more detail in the accompanying memorandum of law, this Court

should reject all of the defendants‘ claims. Not only was the indictment based on legally sufficient and competent evidence, but defendants have made no showing that the integrity of the Grand Jury proceedings was impaired in any way.

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WHEREFORE, and for the reasons that follow, the People respectfully request that the Court deny the defendants‘ omnibus motions in their entirety.

Dated:

Mineola, New York June 19, 2012 ____________________________ Stephen Antignani Assistant District Attorney Public Corruption Bureau (516) 571-2100

To:

The Hon. Judge George Peck County Court – Part 21 262 Old Country Road Mineola, NY 11501 Bruce Barkett, Esq. Attorney for defendant Flanagan 666 Old Country Road, 7th Floor Garden City, NY 11530 William Petrillo, Esq. Attorney for defendant Hunter 11 Clinton Avenue Rockville Centre, NY 11570 Anthony Grandinette, Esq. Attorney for defendant Sharpe 114 Old Country Road, Suite 420 Mineola, NY 11501

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SUPREME COURT OF THE STATE OF NEW YORK NASSAU COUNTY: CRIMINAL TERM ------------------------------------------------------------------------X THE PEOPLE OF THE STATE OF NEW YORK, : : : : : -against: : WILLIAM FLANAGAN, JOHN HUNTER : & ALAN SHARPE, : : Defendants. : ------------------------------------------------------------------------X

MEMORANDUM OF LAW

This memorandum of law is submitted in response to the defendants‘ omnibus motions. POINT ONE THE EVIDENCE BEFORE THE GRAND JURY WAS LEGALLY SUFFICIENT TO SUPPORT ALL CHARGES AGAINST DEFENDANTS (Responding to Defendant Flanagan’s Motion, Points 1-4; Defendant Hunter’s Motion, Points 1-2; and Defendant Sharpe’s Motion, Points 1-2.)

A review of the minutes in this case shows that the evidence before the Grand Jury was more than sufficient to sustain the charge of Conspiracy in the Sixth Degree against all defendants; Receiving Reward for Official Misconduct against defendant Flanagan; the Official Misconduct charges against all defendants; and the Offering a False Instrument for Filing against defendant Sharpe. The People presented competent evidence to support the indictment.

Moreover, the integrity of the Grand Jury presentation was not impaired in any manner. Defendants‘ claims to the contrary in their motions should all be rejected.

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A.

The People Consent to the Court Inspecting the Grand Jury Minutes, but Oppose Release of the Minutes to Defendants. At the outset, the People consent to the Court‘s inspection of the Grand Jury minutes in

camera.

In fact, the People provided the Court with a complete set of the Grand Jury minutes As demonstrated below, the

following the defendants‘ arraignments on May 1, 2012.

inspection will reveal that the evidence adduced before the Grand Jury is legally sufficient to establish each element of the crimes with which the defendants are charged and that the integrity of the Grand Jury proceeding was not impaired in any manner. The People do oppose, however, defendants‘ applications for the release of the Grand Jury minutes, or any portion thereof, for their own use, pursuant to section 210.30 of the Criminal Procedure Law. Consideration of whether to disclose Grand Jury minutes must occur

against the backdrop of the rule that Grand Jury proceedings are secretive not only to protect an innocent accused from ungrounded accusations but also to protect witnesses and encourage reluctant ones to come forward. See C.P.L. § 190.25(4) (a); People v. Fetcho, 91 N.Y.2d 765,

769 (1998); In re District Attorney of Suffolk County, 86 A.D.2d 294, 297 (2d Dept. 1982) (citing People v. DiNapoli, 27 N.Y.2d 229, 235 [1970]). As the Court is aware, it may release

Grand Jury minutes to the defense if, after an examination of the minutes, the Court finds such release necessary to assist the Court in making its legal sufficiency determination, provided that the Court releases only that portion of the minutes necessary for the determination. C.P.L. § 210.30(3). Here, the defense has failed to provide the Court with a legitimate reason to release the Grand Jury minutes. Not only have defendants failed to show the existence of any novel or

complex issue in this case that would warrant the Court‘s seeking their assistance in deciding the legal sufficiency issue, but, with the benefit of the discovery materials provided by the People 2

and the detailed indictment provided to them, they have made extensive arguments in their motions regarding the legal sufficiency of the Grand Jury evidence. Thus, given that

defendants have already made their legal sufficiency arguments and have raised no novel or complex issues, there is no need for the release of the Grand Jury minutes. See People v.

Taylor, __ Misc.2d __, 2001 WL 940238 (Sup. Ct. Queens County 2002) (release of Grand Jury minutes even in a death penalty case where court held there should be heightened scrutiny was denied because definitions and concepts in the charges involved matters entirely common in the criminal law); People v. Owens, 184 Misc.2d 597 (Cty. Ct. Monroe County 2000) (release of Grand Jury minutes in death penalty case not necessary because charges were straightforward and posed no novel concepts). Nonetheless, defendant Flanagan contends that, in deciding whether to release the minutes, the Court should consider alleged false testimony presented to the Grand Jury because the Court will need ―informed adversarial submissions from both sides.‖ (Flanagan Omnibus Motion, p. 5, para. 18). But defendant misses the point of the statute. Section 210.30

authorizes release of the Grand Jury minutes only when the Court deems it necessary to assist it in its determination regarding the sufficiency of the evidence. Thus, whether or not the People have presented false testimony (and as discussed in Point Two, infra, they have not) is irrelevant to the Court‘s determination regarding whether the evidence presented to the Grand Jury was legally sufficient. In short, giving due regard to the secrecy associated with Grand Jury proceedings, and because this case presents no novel or complex issue, combined with the fact that defendants have already made extensive legal sufficiency arguments, this Court should not release the Grand Jury minutes to the defense to assist in its determination of whether the evidence before the 3

Grand Jury was legally sufficient.

Further, as demonstrated below, the evidence before the

Grand Jury was indeed legally sufficient. B. Standard of Review The Grand Jury does not determine the innocence or guilt of the accused. People v.

Swamp, 84 N.Y.2d 725, 729 (1995). Rather, its primary function is to investigate crimes and determine whether sufficient evidence exists to accuse the defendant of a crime. Calbud, Inc. 49 N.Y.2d 389, 394 (1980). People v.

It may indict an individual when, based on the

evidence presented, there is reasonable cause to believe that the accused has committed a crime, which exists when reliable evidence reveals persuasive facts that convince a person of ordinary intelligence that a crime was committed and that the accused committed it. 190.65(1); 70.10(2); People v. Jennings, 69 N.Y.2d 103, 115 (1986). In assessing a motion to dismiss an indictment on the basis of legal insufficiency of the evidence before the Grand Jury, a court must view the evidence in the light most favorable to the People, , and determine whether that evidence, if accepted as true, would establish every element of the crime charged and the defendant‘s commission of it. C.P.L. § 70.10(1); see also People v. Jensen, 86 N.Y.2d 248, 251 (1995). In the context of a Grand Jury proceeding, legal sufficiency means prima facie proof of the crimes charged, not proof beyond a reasonable doubt. People v. Bello, 92 N.Y.2d 523, 526 (1998). The reviewing court‘s inquiry is limited to ―whether the facts, if proven, and the inferences that logically flow from those facts supply proof of every element of the charged crimes,‖ and whether ―the Grand Jury could rationally have drawn the guilty inference.‖ People v. Deegan, 69 N.Y.2d 976, 979 (1987). That other innocent inferences can be drawn from the evidence is irrelevant to the legal sufficiency inquiry so long as the Grand Jury could rationally have drawn inferences supporting guilt. People v. Deegan, 69 N.Y.2d at 979. 4 C.P.L. §§

Moreover, assessing the legal sufficiency of the evidence does not include a weighing of the evidence, an examination of its adequacy, or determining whether there was reasonable cause to believe that the defendant had committed the crimes charged, for the resolution of these questions is exclusively the province of the Grand Jury. Jensen, 86 N.Y.2d at 252; Jennings, 69 N.Y.2d at 115. Applying the above standard to this case, the evidence was legally sufficient because viewed in the light most favorable to the People, it permitted the Grand Jury to find reasonable cause to believe that defendants committed the charged crimes. C. The Evidence Was Legally Sufficient to Support the Jury’s Conclusion that the Defendants Committed the Crimes of Official Misconduct. Within days of the school administrator from JFK High School reporting a theft of electronic equipment by a wealthy and well-connected student, defendant Hunter, the then-Chief of Patrol of NCPD, and Detective Sergeant Alan Sharpe, a supervising detective in the Detective Squad within the NCPD, began a series of actions in violation of their duties as law enforcement officers to ensure that this well-connected teenager was not arrested for his crimes. When these early efforts failed to convince the school officials to withdraw criminal charges, Second Deputy Commissioner William Flanagan joined the effort to ensure that this NCPD benefactor‘s son did not get arrested for his crimes. Additionally, despite the existence of an open and active investigation and the steadfast refusal of the school to withdraw the criminal complaint, defendants Hunter and Flanagan directed defendant Sharpe to return all property to the school, in violation of police protocol and regulations. Despite their violation of the duties ―inherent in the nature‖ of their positions in deciding that a well-connected student should not be criminally charged with felony theft and their 5

unauthorized exercise of an official function by directing the assigned detective to return criminal evidence without proper inventory, all three defendants claim that the evidence presented to the Grand Jury was insufficient to find that they committed the crimes charged in the indictment. Specifically, defendants claim that the People failed to prove to the Grand Jury (1) that defendants violated any duty inherent in the nature of their positions as law enforcement officers; (2) that their actions of returning the property in an open felony investigation under the particular circumstances of this case were not unauthorized; and (3) that defendants did not intend to obtain a benefit for themselves or for a third party by their efforts. Defendants also claim that the People did not present sufficient evidence to support the charge of Conspiracy in the Sixth Degree charge. They are wrong. 1. The Grand Jury heard legally sufficient evidence that the defendants committed Official Misconduct. To satisfy the elements of Official Misconduct, the prosecution must demonstrate by legally sufficient evidence that a public servant has committed an act relating to his office but constituting an unauthorized exercise of his official function, knowing that such act was unauthorized, or that he knowingly refrained from performing a duty which was imposed on him by law or is clearly inherent in the nature of his office with the intent to obtain a benefit for himself or a third person. P.L. §§ 190.05 (1), (2). In this indictment, defendants were properly charged with Official Misconduct under both theories.3

3

Defendant Flanagan was charged in Count 2 of the indictment with Receiving Reward for Official Misconduct in the Second Degree. To sustain this charge, the People did not have to demonstrate that Flanagan committed Official Misconduct. Rather, the People needed to show that Flanagan received or accepted a benefit for having violated his duty as a public servant.

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2. The Grand Jury evidence was legally sufficient to show that defendants knowingly violated a duty inherent in the nature of their office. (Referring to Counts 3, 4 & 5 of the Indictment) As a threshold matter, despite defendant Sharpe‘s claim to the contrary (see Sharpe‘s Omnibus Motion, pp. 21-22), the People did not have to demonstrate that defendants violated a mandatory duty to properly charge them with Official Misconduct. In People v. Mackell, 47 A.D.2d 209 (2d Dept. 1975), the Second Department found that Official Misconduct may occur even where the duty violated is one that is ―couched in discretion.‖ People v. Mackell, 47 A.D.2d at 219. And in People v. Nieves, 197 A.D.2d 542 (2d Dept. 1993), the Second Department rejected the same argument that defendant Sharpe makes in his Omnibus motion – that the failure to arrest an individual for a crime cannot form the basis to sustain the charge of Official Misconduct. In Nieves, the Second Department upheld a police officer‘s conviction of Official Misconduct when he failed to arrest a drug dealer from whom the officer had purchased drugs. Id. at 543. Thus, even if defendants‘ duty to arrest Parker‘s son were discretionary, that fact does not bar their prosecution for Official Misconduct. A duty of the Nassau County Police Department is to uphold the laws of this County in a fair and unbiased manner.4 Although not codified in law, the Nassau County Police Department has written protocols that are distributed to all of its members. As heard by the Grand Jury, these protocols set forth different duties guiding all members of the Nassau County Police Department, including the Chief of Patrol and the Second Deputy Commissioner. First, ―it is the duty of the
4

Defendants have claimed to the press that Parker‘s son was not given special treatment by the NCPD and that Parker‘s son was treated just like other similarly situated teenagers. In his moving papers, defendant Sharpe cites NCPD statistics that he claims corroborate this premise. Defendant Flanagan, in fact, stated that he would have afforded the same opportunity to any young person‘s family who asked for his assistance. Based upon records available in the District Attorney‘s Office, this same treatment was not given to other similarly situated teenagers. In 2009, the Nassau County Police Department arrested 44 sixteen and seventeen-year-olds for the crimes of third-degree burglary and/or third-degree criminal possession of stolen property. Of these 44 teenagers, 25 were either black or Hispanic.

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Police Department and the Members of the Force to . . . detect and arrest offenders . . . and enforce all laws and ordinances over which the Police Department has jurisdiction.‖ See NCPD Department Policy § POL 4000. Second, ―the Police Department will conduct a complete and thorough preliminary investigation at resolving a specific situation or apprehending those responsible for the commission of offenses.‖ See NCPD Department Procedure § OPS 8105. Additionally, this same policy, as the Grand Jury learned, states that if the NCPD determines that there is probable cause to believe that a crime was committed and that the offender is not at the scene, the offender must be located and a summary arrest must be effected. See NCPD Procedure § OPS 8105, p.2. benefit Parker. First, Parker‘s son was not arrested until October 7, 2011, for the felony crimes of third-degree burglary and criminal possession of stolen property despite the overwhelming evidence of his guilt.5 The Grand Jury heard from defendant‘s mother, defendant‘s father, and defendant‘s friend, all of whom testified that Parker‘s son had stolen property from JFK High School. Despite this fact, defendants Flanagan, Hunter and Sharpe throughout that spring acted to ensure that Parker‘s son was not arrested or prosecuted for these felonies. Second, defendant Hunter, before being contacted by Parker, reached out to the detective squad handling the investigation and asked to be ―kept apprised of the situation.‖ He also told the squad commander that Parker was a personal friend and a benefactor of the NCPD, thereby creating the impression that this particular investigation would not be supervised through the normal chain of command. Defendants disregarded these protocols in their efforts to

5

On March 16, 2012, Parker‘s son pled guilty and fully admitted his guilt. He also admitted that he never returned all of the stolen property to the school. His sentence is pending.

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In fact, according to the squad commander, Hunter‘s phone call ensured that Parker‘s son received special treatment. Third, after learning from co-defendant Hunter that it would be a good thing if Parker‘s son were not arrested, defendant Sharpe invited Parker to the precinct for a conversation about his son‘s case. During this discussion, Parker was shown additional recovered evidence – evidence that should have been stored in a property room. Moreover, following defendant Hunter‘s phone call, defendant Sharpe made no efforts to have his detective speak to potential witnesses, recover additional property, or recover videos from the school that would have shown Parker‘s son at the school on the night of the burglary. Instead, defendant Sharpe and the unindicted co-conspirator attempted to get the school administrator to change her position on whether she wanted Parker‘s son arrested. Therefore, the Grand Jury could reasonably infer that, because of defendant Hunter‘s interference, there was no investigation into Parker‘s son‘s culpability and that the outcome of the investigation was predetermined. Moreover, the Grand Jury heard that defendant Flanagan did not interfere with the investigation until after the school administrator had already refused to sign a withdrawal of prosecution that was placed before her for her signature. And, according to another supervising detective, the participation of defendant Flanagan, the Second Deputy Commissioner, was out-of-the-ordinary because Flanagan bypassed the Chief of Detectives when he involved himself with the Parker investigation. From all of these facts, the Grand Jury reasonably found that there was reasonable cause to believe that these defendants violated written county police policy and procedures. See Mieles v. Safir, 272 A.D.2d 199 (1st Dept. 2000) (First Department upheld the termination of a police officer finding that the violation of the NYPD patrol guide could have

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constituted the crime of Official Misconduct, thereby extending the statute of limitations for officer‘s termination hearing). Even without these written protocols, the Grand Jury heard ample testimony that defendant Flanagan, defendant Hunter, and defendant Sharpe knowingly refrained from performing a duty ―clearly inherent in the nature of [their] office.‖ P.L. § 190.50(2). ―A duty which is clearly inherent in the nature of the office encompasses those unspecified duties that are so essential to the accomplishment of the purposes for which the office was created that they are clearly inherent in the nature of the office.‖ People v. Lynch, 176 Misc.2d 430, 433 (Rockland County 1998); see also People v. Jackson, 35 Misc.3d 179 (Kings County 2011). Investigating crimes and making

felony arrests are certainly essential duties of the Nassau County Police Department and inherent in the nature of a law enforcement officer. And so, as the Grand Jury found after hearing all of the evidence, defendants violated this inherent duty when they did not arrest Parker‘s son for felony thefts and when they returned property to the school to justify this non-arrest. Additionally, the Grand Jury heard evidence suggesting that defendant Flanagan understood that his conduct was wrong. First, following the article in the Long Island Press, defendant Flanagan opened the Parker police reports and read them. Also, although numerous e-mails between defendant Flanagan and Parker were recovered from Flanagan‘s mailbox following a search by an expert hired by the District Attorney‘s Office, there were no e-mails recovered from Flanagan‘s personal mailbox as a result of an e-mail search by the NCPD, suggesting that defendant Flanagan had deleted those e-mails. Finally, the Grand Jury learned that defendant Flanagan, a law enforcement officer fully cognizant of the secrecy of Grand Jury proceedings, called Parker following Parker‘s testimony to the Grand Jury, asking Parker the questions the prosecutor had asked him about defendant Flanagan‘s conduct. Although these 10

pieces of evidence would not be sufficient, standing alone, to sustain an indictment against defendant Flanagan, the Grand Jury could nonetheless consider them in its determination that legally sufficient evidence existed to charge defendant Flanagan with these crimes. Additionally, even if defendants believed that the school was willing to withdraw the complaint against Parker‘s son if all of the property were returned, Parker‘s son did not return all of the property. The school never received all of the property from Parker‘s son. In fact, nearly $4000.00 worth of electronic equipment stolen by Parker‘s son that spring was never returned. In conclusion, the Grand Jury acted appropriately when it indicted defendants on Counts 3, 4 and 5 for Official Misconduct and found that they had violated an inherent duty of their positions as law enforcement officers. 3. The Grand Jury correctly found that defendants knowingly committed acts that constituted an unauthorized exercise of their functions as law enforcement officers (Referring to Counts 6, 7, 8 & 9 in the indictment). There was also legally sufficient evidence from which the Grand Jury could have determined that defendants Hunter and Flanagan directed the return of stolen property so that the well-connected son of a police benefactor would not be arrested on felonies, an unauthorized exercise of law enforcement functions, and that defendant Sharpe also committed acts that constituted an unauthorized exercise of his law enforcement function when he acquiesced to his superiors‘ demands and directed his subordinates to return the stolen property. For purposes of these counts, the Grand Jury heard testimony and read the departmental protocols that dictate the manner in which recovered property should be invoiced and stored during a criminal investigation. NCPD Procedure § OPS 10002. The protocol also makes clear the process that should be followed when removing property from a precinct.

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In this case, the Grand Jury properly determined that defendants engaged in an unauthorized exercise of their duties when they returned criminal evidence to justify Parker‘s non-arrest without following their written protocol. Defendants were aware of the protocol, having received the rules and policies and all of their updates. A representative of the NCPD Legal Bureau testified that all members of the department receive these protocols and that all members of the department, despite their rank, are directed to follow these rules. In this case, these defendants did not. As mentioned earlier, defendant Hunter had no administrative authority over defendant Sharpe‘s division. Defendant Flanagan also had no administrative authority over defendant Sharpe‘s squad. Both men bypassed NCPD protocols by directing defendant Sharpe and his unit to return the stolen property to the school. They also knowingly committed unauthorized acts when they took their direction as to how to proceed in this investigation from the suspect‘s father. The e-mail trail left by these defendants further demonstrated for the Grand Jury that defendants Flanagan and Hunter abdicated their duties as law enforcement officers when they allowed Parker to guide the NCPD handling of the matter. Defendants may try to argue, as they have done in the press, that they thought that the school did not want to proceed with criminal charges against Parker‘s son and that by returning the property they were merely following the school‘s request. The Grand Jury reasonably

disregarded this claim. Significantly, Hunter, who because of his position with the NCPD‘s Highway Unit had previously prevented Parker‘s son from receiving moving violations, inserted himself into the investigation before Parker met him in the diner by reaching out to the Squad Commander in the days following the complaint. Additionally, following his diner meeting with Parker, defendant Hunter called the precinct and spoke to defendant Sharpe about the matter. 12

The Grand Jury also had the opportunity to review e-mail communications between defendant Hunter and Parker. Following a request by Parker to defendant Hunter to have the squad ―lay low‖ in its investigation, defendant Hunter assured Parker that he would do so. As the evidence further established, the NCPD did not arrest Parker‘s son for the felony thefts. Also, defendant Hunter made arrangements for the return of the property to the school only after receiving his instructions from Parker. As the Grand Jury heard throughout the presentation, every opportunity where Parker, a civilian not employed by the NCPD, gave instructions or made requests concerning his son‘s investigation, defendant Hunter carried out those instructions or requests. Therefore, the Grand Jury had reasonable cause to believe that Hunter committed an

unauthorized act related to his position when he ordered defendant Sharpe to return the stolen property to the school. Similarly, defendant Flanagan, the Second Deputy Commissioner and a close confidante of the then-police commissioner, immediately took action following his conversation with Parker about the son‘s investigation at the Bethpage U.S. Golf Open and called the detective squad, following up with several other calls. Defendant Flanagan ―put pieces in motion‖ to get the property returned to the school despite the school‘s insistence several days earlier that it would not withdraw criminal charges against Parker‘s son. Then, throughout the summer, defendant

Flanagan followed Parker‘s instructions to get the property returned to the school. Defendant Sharpe too was aware that the school administrator would not agree to withdraw criminal charges against Parker‘s son. Nevertheless, he ordered his detective to return the property to the school. And, the evidence showed that defendant Sharpe went so far as to falsify the close-out police report to justify the unlawful return of the property.

13

Thus, defendants‘ claim that they did not violate an authorized duty should be rejected. Viewed in the light most favorable to the People, the evidence before the Grand Jury amply established that defendants committed unauthorized acts, and that they did so knowingly when returning the stolen property to the school under these circumstances. Thus, this Court should deny defendants‘ motions to dismiss Counts 6, 7, 8 and 9 of the Indictment. 4. The Grand Jury evidence was legally sufficient to demonstrate that defendants violated their duties and took unlawful actions so that they could benefit Parker, and, in one instance, defendant Sharpe took unlawful action to benefit himself. Both defendant Hunter and defendant Flanagan had long-standing personal relationships with Parker that continued even after the two ensured that Parker‘s son would not be arrested for felony theft. Defendants Hunter and Flanagan were frequently taken to dinner by Parker. Both defendants attended yearly barbecues held by Parker. Merely a week before Parker‘s son was named as a suspect in the felony thefts, Parker gave defendant Flanagan free Yankee tickets. After hearing this evidence, the Grand Jury was correct in concluding that these men disregarded their duties as police officers in order to benefit Parker, their friend and benefactor. Although defendant Sharpe had no prior relationship with Parker prior to the spring of 2009, at the behest of his supervisors, Sharpe quickly developed such a relationship. Defendant Sharpe invited Parker to the precinct, gave him advice as to how his son‘s investigation could be resolved, and showed Parker property that his son had stolen. Despite this evidence, defendants still claim that the evidence in the Grand Jury was insufficient to show that these law enforcement officers took the actions they did in order to benefit either themselves or a third person. The Grand Jury correctly concluded that these defendants acted with the desire to benefit Parker. As charged to the Grand Jury, ―benefit is 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 14

beneficiary.‖ People v. Lucarelli, 300 A.D.2d 1013 (4th Dept. 2002); see also P.L. §10.00(17). The Court of Appeals has further stated that the benefit to sustain a conviction for Official Misconduct can be simply to gain an advantage or to avoid disciplinary proceedings. People v. Feerick, 93 N.Y.2d 433, 448-449 (1999); see also People v. Jackson, 35 Misc.3d 179 (Kings County Crim. Ct. 2011) (court held EMT should not have left her command center and therefore intended to gain a benefit by avoiding disciplinary proceedings when she left a dying customer in an Au Bon Pain). In Lucarelli, following a report by two civilians suspected of drug activity that included the name of a suspect, the desk officer who received the report called the named suspect‘s mother to tell her that her son had been named a suspect in purported drug activity and that her son should stay away from the drug location. People v. Lucarelli, 300 A.D.2d 1013. For his conduct, the officer was indicted for Official Misconduct. Following a dismissal of the indictment by the trial court, the Appellate Division found that the trial court was incorrect in dismissing the Official Misconduct count because the officer‘s interference with the investigation of the drug dealing suspect was unauthorized and his call to the suspect‘s mother was to benefit the suspect, a third person. Accordingly, despite defendants‘ claims to the contrary, the law does not require that the ―principle ‗beneficiary,‘ under the very terms of the statute, must be the defendant, even if there is a third party beneficiary as well.‖ (See Defendant Flanagan‘s Memorandum of Law, p. 4) As discussed above, no such requirement exists.6 In fact, in Lucarelli, the Third Department found that the officer intended no benefit for himself, but by his conduct intended to benefit only the

6

Defendant Flanagan‘s suggestion that the beneficiary under Official Misconduct cannot be solely a third party is wrong as well. While the statute does, in fact, use the word ―include‖ in its definition of benefit, the governing case law has interpreted the statute to mean a benefit can be to either the defendant or a third-party. See, e.g., People v. Lucarelli, 300 A.D.2d at 1013 (benefit only to a third-party).

15

suspect. See also People v. Heckt, 62 Misc.2d 287 (Erie County Ct. 1969) (court upheld police officers‘ indictment for Official Misconduct for allowing and participating in illegal card games, holding that the defendants‘ conduct benefited the card game organizers). In the absence of controlling authority from the Second Department, this Court is bound by the Third Department‘s interpretation of P.L. §10.00(17) in Lucarelli. See Mountain View Coach Lines, Inc. v. Storms 162 A.D.2d 663, 664 (2d Dept. 1984). This Court must determine whether the evidence presented to the Grand Jury was ―legally sufficient‖ to establish that defendants both committed an unauthorized act related to their positions as police officers and that they refrained from performing a duty inherent in the nature of their office in order to benefit Parker. The relationship between the parties prior to the spring of 2009 was one factor necessary to the Grand Jury‘s determination of whether the acts of defendants Sharpe, Hunter and Flanagan were undertaken to benefit Parker.7 Prior to the spring of 2009, Parker had begun forging relationships and ―friendships‖ with high-ranking members of the Nassau County Police Department, including both defendants Hunter and Flanagan. Parker frequently held dinners at Nassau County restaurants for police department officials and paid the bill, dinners frequently attended by both Hunter and Flanagan. Further, both defendants attended an annual barbecue Parker held for law enforcement. Due to this relationship, defendant Hunter secured Parker‘s son employment with the Nassau County Police Department Ambulance Unit in a position created solely for Parker‘s son. Defendant Hunter, having been the commander of the Highway Division, also told Parker that he

7

Defendant Hunter claims that evidence about his relationship to Parker was improperly admitted during the Grand Jury proceeding. This evidence was necessary to show the long-standing ties between the two parties. It also helped to prove the reason why defendant Hunter acted in the manner he did. Thus, the relationship evidence, both in e-mails and through testimony, was necessary background evidence and explained defendant Hunter‘s behavior.

16

was instrumental in having Parker‘s son avoid moving violations on numerous occasions, a fact corroborated by the driving record of Parker‘s son which showed that despite the fact that his license plate was run by law enforcement numerous times, he never received a moving violation. Additionally, defendant Hunter‘s friendship with Parker became so strong that, during a blackout, Hunter provided Parker with a police generator — a benefit not afforded other citizens of the county. Additionally, both defendants Hunter and Flanagan were friendly enough with Parker that Parker felt comfortable seeking their assistance in getting his son out of trouble for the theft of the electronic equipment. And, as the Grand Jurors heard, defendants Hunter and Flanagan

unhesitatingly obliged. Defendant Hunter, the Grand Jury evidence established, interfered with the investigation even before being informed of the incident by Parker himself. The

Commanding Officer in the investigating squad testified that she believed, because of her conversation with defendant Hunter, that he wanted this low level felony to be resolved without Parker‘s son being arrested. And, another sergeant in the squad with defendant Sharpe testified to the unusual nature of defendant Flanagan‘s telephone call inquiring about the stolen property‘s status. Further, the Grand Jury heard testimony that defendant Flanagan thanked the unindicted co-conspirator during the fall of 2009, a person with whom defendant Flanagan had no prior relationship. The evidence before the Grand Jury also showed that defendant Sharpe committed misconduct to benefit Parker and himself. Although defendant Sharpe had no prior relationship with Parker, he handled this investigation differently once he knew that defendant Hunter had an interest in this case. Defendant Sharpe invited Parker to the precinct to discuss the matter, gave Parker his business card with his personal cell phone number on it, showed Parker the property that 17

had been returned to the precinct by a friend of Parker‘s son, and called Parker several times on his personal cell phone later that same day. Sharpe‘s benefit was neither abstract nor remote. Cf. People v. Cavan, 84 Misc.2d 510 (Sup. Ct. Queens County 1975) (burglary suspect‘s offer of ―can‘t we fix this‖ to arresting officer deemed too vague to demonstrate that suspect intended to confer a benefit on the arresting officer to sustain a bribery charge). Thus, the Grand Jury evidence was legally sufficient to establish that defendant Sharpe acted in the manner in which he did in order to gain an advantage with his supervisors and to benefit Parker, a friend of the NCPD. See People v. Feerick, 93 N.Y.2d at 448-49 (defendants intended to recover a benefit when they illegally entered and ransacked apartments in attempt to find stolen police radio, the loss of which ―could have subjected defendants to scorn, ridicule or possible discipline‖). The evidence also established that defendant Flanagan had a personal relationship with Parker that motivated him to commit an unauthorized act related to his duty and to refrain from performing a duty inherent in the nature of his office. Moreover, the Grand Jury also saw e-mails indicating that only days before the theft from JFK High School, Parker offered defendant Flanagan Yankee tickets and access to an ―outdoor seating area . . . custom designed with 1,300 cushioned seats with padded backs that offer an extraordinary stadium experience.‖ The e-mail offer also noted that defendant Flanagan would have ―access to the Terrace Level Outdoor Suite Lounge, a separate climate-controlled indoor environment that offers a multitude of exclusive perks, including access to private restrooms, high-definition TVs, a variety of menu options, and a four-sided cocktail bar that delivers an exceptional selection of beverages.‖ Moreover, after the property was returned to the school at defendant Flanagan‘s direction, defendant Flanagan used his friendship with Parker to secure a Tag Heur watch at a wholesale cost rate. And, instead of paying for the watch, Flanagan, at Parker‘s behest, made a tax deductible 18

donation to the Nassau County Police Department Foundation. 8

Thus, with all of this

information, the Grand Jury reasonably found that Flanagan‘s acts were undertaken to benefit Parker. Despite defendants‘ claims, People v. Esposito, 160 A.D.2d 378 (1st Dept. 1990), does not undermine the Grand Jury‘s conclusion that there was sufficient evidence to satisfy all of the elements of Official Misconduct. In that case, the court stated that the benefit under Official Misconduct needed to be for the defendant ―himself or another.‖ However, the court further stated that the facts of that case, in which an MTA police chief was indicted on numerous official misconduct charges because he used the New York State Police Information Network on various occasions at the request of his employers, did not establish that the defendant wanted to benefit himself, and any benefit to the employer was too ill-defined to prove criminality. Here, that is not the case. Parker, a friend of both defendants Hunter and Flanagan, benefited from the police officials‘ misconduct, and defendants committed their acts of misconduct for the purpose of benefiting Parker. In fact, due to the misconduct of these officers, Parker‘s son was not arrested on felonies, a direct benefit to Parker himself. Further, the Grand Jury was privy to an e-mail exchange between defendant Hunter and Parker in which Parker thanked defendant Hunter for being ―a great person and friend‖ for getting the NCPD to ―lay low,‖ and Hunter responded, ―As you taught me that is what friends are for!‖ Similarly, following Parker‘s thank-you to defendant Flanagan for returning the stolen property, defendant Flanagan responded in an e-mail, ―[D]e nada family.‖

8

The Nassau County District Attorney has not yet determined whether defendant Flanagan claimed a tax deduction for the $1500.00 donation to the foundation, but e-mails suggest that the donation was actually payment for the watch.

19

Additionally, as mentioned earlier, the Grand Jury heard evidence that Sharpe invited Parker to the precinct, showed Parker the stolen property, gave Parker his business card, and offered Parker his personal cell phone number. The Grand Jury also heard evidence that Sharpe kept Hunter and Flanagan updated on the case, knowing that both had relationships with Parker. Thus, although Sharpe did not have a personal relationship with Parker, the Grand Jury correctly concluded that Sharpe committed misconduct with the intent to benefit Parker and to gain a professional advantage for himself. Therefore, unlike in Esposito, where the benefit was

ill-defined, the benefit in this case was to a distinct individual for a distinct purpose. Thus, despite defendants‘ claims to the contrary, the People presented legally sufficient evidence that defendants committed Official Misconduct with the intent to benefit Parker, a well-connected benefactor of the NCPD. Therefore, defendants‘ claims that there was no benefit conferred should be rejected and their motions to dismiss the Official Misconduct counts denied. D. The Evidence was Legally Sufficient to Support the Jury’s Conclusion that the Defendants Each Committed the Crime of Conspiracy. Defendants Flanagan, Hunter and Sharpe conspired to commit the Crime of Official Misconduct. The fact that the Grand Jury heard no evidence that defendants Flanagan and Hunter communicated directly with one another does not undermine the legal sufficiency of the conspiracy charge. The Grand Jury heard legally sufficient evidence supporting the first count in the indictment. 1. New York’s unilateral approach to conspiracy requires no “collective intent” or “meeting of the minds” to establish a conspiracy. New York has adopted the unilateral approach to conspiracy, which focuses on individual liability and individual mens rea. The identity and degree of participation by other

co-conspirators is irrelevant if the individual believes that he has joined with others to perform the 20

acts comprising a substantive crime. Even if the individual is mistaken as to the fact of an actual agreement with others, he is not thereby relieved of criminal liability for conspiracy. The first appellate case in New York to confront the adoption of a unilateral approach to conspiracy was People v. Schwimmer, 66 A.D.2d 91 (2d Dept. 1978), aff‘d 47 N.Y.2d 1004 (1979). The Schwimmer court explained that prior to the revised Penal Law (1965), New York held to the traditional bilateral approach to conspiracy under which a conspiracy was defined as two or more persons conspiring to commit an illegal act, essential to which was the sharing by at least two persons of the proscribed mens rea. Under this formulation, if a defendant‘s sole co-conspirator were acquitted, or was not criminally liable due to age or a simulated agreement by an undercover agent, then the defendant was also required to be acquitted. People v. Schwimmer, 66 AD.2d at 93. With the enactment of the revised Penal Law, however, the Schwimmer court went on to explain, the unilateral approach to conspiracy as exemplified by the Model Penal Code, was adopted by New York. Now, by concentrating on individual liability, rather than group liability, the guilt of a particular actor is independent of that of his co-conspirator(s). Such treatment is important when, for example, a defendant‘s only co-conspirator (a) is legally irresponsible or immune or incapable of committing a particular offense, (b) has feigned agreement, usually as part of a law enforcement scheme, or (c) is unknown, unapprehended, unindicted, unconvicted or acquitted. A unilateral definition of conspiracy means that none of these circumstances will preclude defendant‘s conviction where the evidence is otherwise sufficient. See also P.L. § 105.30; People v. Berkowitz, 50 N.Y.2d 333, 342-43 (1980). Significant implications of the adoption of the unilateral theory of conspiracy include that even if a defendant is factually incorrect about having become a conspirator – that is, if he believes subjectively that he has joined a conspiracy but his co-conspirator has feigned agreement (see 21

People v. Macklowitz, 135 Misc.2d 232 [N.Y. County Sup. Ct. 1987]), or is even an undercover officer (see People v. Lanni, 95 Misc.2d 4 [Bronx County Sup. Ct. 1978]), he may still be found guilty of conspiracy. This, of course, underscores the fact that there need be no contractual ―meeting of the minds‖ for guilt of a conspiracy to be established. The ―act‖ of agreement is simply an expression of each individual actor‘s intent to commit the substantive crime together with others. Obviously, a conspiracy need not be simultaneously formed in the minds of each co-conspirator under this theory. A conspiracy may well exist long before it is joined by the defendant in question, or long before it is believed to have been joined by that defendant. The identity and degree of participation by the other persons is wholly irrelevant. Also irrelevant are the fineties of contract law concerning when an agreement is consummated (e.g., meeting of the minds). It is the individual who is prosecuted and necessarily it is the individual who must have the prescribed mens rea. The requisite intent is to join with others to commit a substantive crime. If an individual believes he has so joined, it is sufficient to establish complicity, regardless of the actual fact of agreement. Such mistake of fact certainly does not relieve the individual of criminal liability (Penal Law 15.20) … The focus of the unilateral approach is to prosecute each defendant for the person‘s participation in the criminal conspiracy. Thus, if an individual has the requisite mens rea and does, albeit from his perspective, agree with others and commits an overt act in furtherance of performing the substantive crime, then there is no persuasive reason why that individual should escape criminal sanction. People v. Schwimmer, 66 A.D.2d 91, 94-96. Thus, under New York‘s existing unilateral

approach to conspiracy, there is no requirement of ―collective intent‖ or a ―meeting of the minds.‖ People v. Negri, 132 A.D.2d 488 (1st Dept. 1987). When one evaluates the individual intent of each of the defendants in this case, it is clear that each defendant individually intended to commit acts comprising the substantive crime of Official Misconduct together with other individuals whose actions were needed to complete the 22

crimes (including the unindicted co-conspirator). The testimony and exhibits in the Grand Jury establish that each defendant intended and acted to secure the release of evidence of a felony from police custody while a criminal investigation was open in an effort to avoid the arrest of an identified target against whom probable cause existed for his arrest. These and other acts, done with the intent to benefit Parker and/or co-defendant Sharpe, were either unauthorized or violative of police duties, as discussed fully above on pages 5 through 14. 2. Even when no direct connection is shown between them, individuals are co-conspirators if each knew or had reason to know that others were involved in a project to commit the acts constituting a crime and that the attainment of the goal was probably dependent on the success of the entire venture. The law of conspiracy considers individuals to be co-conspirators even when they are not actually or personally acquainted with one another as long as each had reason to know (1) that others were involved in a project to commit the acts comprising the object crime and (2) that the attainment of their own goals was likely dependent on the success of the entire venture. This rule, initially established in narcotics conspiracy cases, (see People v. Rodriguez, 274 A.D.2d 826 [3d Dept. 2000]; People v. Brooks, 268 A.D.2d 889 [3d Dept. 2000]; People v. Parker, 124 Misc.2d 772 [Cty. Ct. Oneida County 1984]), is equally applicable to non-narcotics offenses such as the resale of stolen brokerage bonds. See People v. Negri, 132 A.D.2d at 490. This aspect of the law of conspiracy in New York was thoroughly described by Justice Irving Lange in People v. Macklowitz, 135 Misc.2d 232, 236-37 (Sup. Ct. N.Y. County 1987): Numerous labels have been used in an effort to categorize different types of conspiracies. Chains, links, wheels, hubs and spokes are just a few of the terms utilized where there are several layers of actors involved with various, albeit related, roles and objectives. The most common distinction made is between wheel conspiracies and chain conspiracies. A wheel conspiracy involves an individual (or small group)—the hub, who transacts illegal dealings with the various other individuals—the spokes…. 23

In contrast, the chain conspiracy usually involves several layers of personnel dealing with a single subject matter, as opposed to a specific person. Drug trafficking is often cited as a classic example of a chain conspiracy inasmuch as it is characterized by manufacturing links, wholesaling links and retailing links. United States v. Bruno 105 F.2d 921 (2d Cir.1939), rev'd on other grounds 308 U.S. 287.) A single conspiracy can be proven if each link knew or must have known of the other links in the chain, and if each defendant intended to join and aid the larger enterprise. Marcus,[Prosecution and Defense of Criminal Cases] (1986), Kotteakos v. United States, 328 U.S. 750 (1946), Blumenthal v. United States, 332 U.S. 539 (1947). The chain theory of conspiracy has been recognized by New York State courts in a drug distribution case (People v. Parker, 124 Misc.2d 772), and in a stolen property fencing scheme (People v. Kiszenik, 113 Misc.2d 462)…. [S]ome conspiracies may be classified as chain/spoke combinations. For example, in narcotics trafficking, the links at either end might be comprised of a number of persons ―who may have no reason to know that others are performing a role similar to theirs—in other words the extreme links of a chain conspiracy may have elements of the spoke conspiracy.‖ United States v. Borelli, 336 F.2d 376, 383 (2d Cir.1964), cert. den. sub nom. Mogavero v. United States, 379 U.S. 960. Perhaps a more accurate way to visualize a complex conspiracy case would be to view it as a three dimensional organic chemistry molecule with each part interacting continuously with another thereby forming and adhering to the whole, for a common purpose. In People v. Kiszenik, 113 Misc.2d 462 (N.Y. County 1982), Justice Harold Rothwax applied the chain theory of conspiracy to a stolen property fencing conspiracy. inspection of the Grand Jury minutes, Justice Rothwax found that the evidence before the Grand Jury was legally sufficient to warrant the conspiracy charge against the defendant…. Conversations between the defendant and other members of the conspiracy… together with other testimony…was accordingly sufficient prima facie to connect the defendant with the ongoing conspiracy which had as its object the theft of garments, storage and ultimate sale to retailers. The fact that the defendant did not know all of the details regarding the manner in which the garments were stolen and resold or the identity of all of the participants does not amount to a failure of proof of conspiracy (Blumenthal v United States, 332 U.S. 539, 556-557). This was a classic ―chain‖ conspiracy, in which ―the conspirators at one end of the chain knew that the unlawful business would not, and could not, stop with their buyers; and those at the other end knew that it had not begun with their sellers.‖ (United States v Bruno, 105 F2d 921, 922, revd on other grounds 308 U.S. 287). Upon his

24

Another example of a chain conspiracy is the Parker case, supra, whose pertinent facts are as follows: Parker was a wholesaler of cocaine, operating from his residence. His major supplier was co-defendant Pardo. Co-defendants Inserra, Creaco and Baris were drug retailers who made periodic, regular purchases of cocaine from Parker. Co-defendant Entwistle resided with Parker and participated in his illegal activities. All defendants in the case were shown to have had direct dealings with Parker and Entwistle, but there was no evidence to demonstrate any connection, let alone any direct agreement, among defendants Pardo, Inserra, Creaco or Baris. Although no direct connection was shown between retailers, they could still be found to be members of a single conspiracy ―if each knew or had reason to know that other retailers were involved in a broad project for the importation, distribution, and retail sale of narcotics and had reason to believe that their own benefits derived from the operation were probably dependent upon the success of the entire venture.‖ People v. Parker, 124 Misc.2d 772, 774 (Cty. Ct. Onieda County 1984). Even though under the cases cited above, there is no requirement that co-conspirators be acquainted with one another, in the present case many of the co-conspirators (including those who were not indicted) were known to one another as participants in the charged scheme. See, e.g., People v. Brooks, 268 A.D.2d at 889-90; People v. Parker, 124 Misc.2d at 774The evidence before the Grand Jury established that the conspirators were aware during the course of the conspiracy of the existence of specific co-conspirators as follows: (1) defendant Flanagan knew of defendant Sharpe, defendant Hunter and the unindicted co-conspirator‘s participation; (2) defendant Hunter knew of defendant Sharpe and the unindicted co-conspirator‘s participation; (3) defendant Sharpe knew of defendant Hunter, defendant Flanagan and the unindicted co-conspirator‘s participation; and the (4) unindicted co-conspirator knew of defendant Sharpe, defendant Hunter and defendant Flanagan‘s participation. Under this theory, it is clear that a direct connection among each and 25

every conspirator need not be established for conspiracy to be proven. In a chain conspiracy, as long as a defendant is connected with the co-conspirators directly above him and below him in the chain, (regardless of whether or not they are apprehended, indicted, or convicted), and knows or has reason to know that other links in the chain exist, the defendant can be found to be conspiring with all the other ―links,‖ even if he does not know them personally. Evidence before the Grand Jury in the form of testimony and e-mails established that each defendant had reason to know that there were additional co-conspirators, both known and unknown, who were involved in this scheme. No one individual accomplished the goal of the conspiracy through his own individual actions, but the goal was effectuated through actions requested, directed and suggested to other individuals by these defendants. Thus, even if no direct connection were established between defendants Flanagan and Hunter in the present case, the evidence still establishes that they conspired with each other under a chain theory of conspiracy. 3. The agreement between co-conspirators can be established inferentially by circumstances indicating that the defendants engaged in a common effort with others to achieve a common goal. Keeping in mind, as detailed above, that the People need not establish either ―collective intent‖ or a ―meeting of the minds‖ of the co-conspirators, individual intent may be demonstrated inferentially. Here, the Grand Jury had both direct and circumstantial evidence that

unquestionably met this standard. The common goal alleged by the People in the present case was the non-arrest of Parker‘s son whose arrest was otherwise warranted and appropriate in order to benefit Parker, a financial benefactor of the Nassau County Police Department and several of its individual members (Count One of Indictment 338N12). The conspiracy count of the indictment details that each defendant, with the intent to engage in conduct constituting the crime of Official Misconduct, agreed with one 26

or more persons, including Parker, to return recovered stolen property that was evidence of the crime in order to effectuate the goal of the conspiracy. There is no legal requirement that an explicit, express agreement between co-conspirators be established, even at trial, for conspiracy charges to properly lie. Proof of conspiracy requires evidence that defendant entered into an agreement, either express or implied, to commit a crime. People v. Berkowitz, 50 N.Y.2d 333, 343 (1980); People v. Parsons, 275 A.D.2d 933, 934 (4th Dept. 2000); People v. Rodriguez, 274 A.D. 2d 826; People v. Givens, 181 A.D.2d 1031 (4th Dept. 1992); People v. Parker, 124 Misc.2d 772. The existence of an agreement may be established inferentially by circumstances indicating that defendant engaged in a common effort with others to achieve a common goal. People v. Parker, 124 Misc.2d at 775-776. A course of conduct from which an agreement may be inferred, rather than any express agreement, can be sufficient to establish a conspiratorial agreement. Id. The question before the Court is whether the facts before the Grand Jury are sufficient to establish the offense charged or any lesser included offense. The test is whether the evidence, unexplained and uncontradicted, would warrant a conviction by a trial jury. People v. Leonardo, 89 A.D.2d at 217; People v. Rallo, 46 A.D. 2d 518, 527, (4th Dept. 1975), aff‘d, 39 N.Y. 2d 217 (1976). The evidence must be viewed in the light most favorable to the People. People v. Leonardo, 89 A.D.2d 214, 217 (4th Dept. 1982); People v. Sacco, 64 A.D.2d 324 (4th Dept. 1978). Business records alone can be sufficient to establish a prima facie case of conspiracy. Here, emails admissible as business records of the NCPD containing communications in furtherance of the conspiracy (between Hunter and Sharpe, Hunter and Parker, Flanagan and Parker and Sharpe and the unindicted co-conspirator) are detailed in the discussion of overt acts enumerated in Count One of the indictment. See People v. Pleban, 108 A.D.2d 880, 881 (2d 27

Dept. 1985) (prima facie case of conspiracy established based on telephone records and documents recovered by the police containing the complainant's business and home addresses and telephone numbers). Moreover, there was testimony from both the unindicted co-conspirator and Parker explaining those emails. 4. The conspiracy count should not be dismissed as facially deficient or duplicitous. In his papers, defendant Flanagan claims that the count charging him and his co-defendants with Conspiracy in the Sixth Degree (Count One) is insufficiently pled and duplicitous. To be charged with this crime, defendant claims that that the People were required to show that defendants ―agreed with other[s] to commit criminal conduct.‖ The plain language of the charge itself proves this wrong. To satisfy the element of sixth-degree criminal conspiracy, the People needed to demonstrate for the Grand Jury, by legally sufficient evidence, that defendants‘ conduct constituted the crime of Official Misconduct, and that defendants intended their conduct. See P.L. §105.00. Through the testimony of over 20 witnesses and the introduction of over 40 exhibits, the evidence overwhelmingly established for the Grand Jury that defendants intended the conduct that led to the non-arrest of Parker‘s son, despite the overwhelming evidence of his guilt and a cooperative complainant. Therefore, the count was not insufficiently pled and the Grand Jury evidence established that defendants‘ conduct amounted to Official Misconduct. Thus, defendant Flanagan‘s claim that the first count of the indictment is facially deficient should be denied. Moreover, the conspiracy count is not duplicitous. Here, the Grand Jury indicted each defendant for the substantive crimes of Official Misconduct under both subdivisions (1) and (2) of Penal Law § 195.00. Indeed, in a similar scenario, where a defendant claimed that he was inadequately advised of the crime of which he was accused where he was indicted on a single 28

count of conspiracy based on three different subdivisions of the same penal law crime, the Appellate Division found that the indictment properly stated ―but one crime, that of conspiracy, although more than one means was specified to effectuate its purpose.‖ Hannon v. Ryan, 34 A.D.2d 393, 399 (4th Dept. 1970); see also People v. Falkenstein, 288 A.D.2d 922 (4th Dept. 2001) (conspiracy count not duplicitous although it alleged three separate overt acts). Thus, in this case, there should be no concern that defendants cannot properly prepare a defense because the indictment‘s first count is duplicitous. Defendants have been properly notified that either theory of Official Misconduct could satisfy the conspiracy charge, and will in fact need to prepare defenses under both theories. Moreover, at trial, this Court could properly charge the jury that conduct constituting either theory of Official Misconduct could serve as the predicate for the conspiracy charge, so long as the trial jury unanimously affirms under which theory of Official Misconduct – if not both – it finds defendants conspired to commit. For these reasons, defendant Flanagan‘s concerns of duplicity are without merit. 5. The two pages of e-mails dated May 22, 2009, obtained by counsel for defendant Sharpe utilizing a judicial subpoena do not negate the conspiracy in any way. In an e-mail to Detective Coffey dated Friday, May 22, 2009, sent at 6:04 p.m., Principal Lorraine Poppe stated that she ―had to speak with the superintendent about whether we want Zach arrested.‖ This was not a request that no arrest be made until further notice, as has been widely misreported in the media. The school was closed for Memorial Day until Tuesday, May 26, 2009, and the superintendent was out of town for the weekend. This conversation between the superintendent and the principal was to take place when school reopened on Tuesday. The superintendent, in fact, stated in one of these e-mails that ―we will wait until we return on Tuesday…‖ (emphasis supplied). 29

The Grand Jury testimony of August 11, 2011, pages 42-44, established that a high-ranking member of the NCPD understood from either defendant Sharpe or Coffey that these e-mails expressed Principal Poppe‘s desire to get a response from the superintendent, which was expected the following week. These e-mails were properly understood at the time to be a brief

postponement over a holiday weekend of the arrest of Parker‘s son, rather than a withdrawal of prosecution by the school district. In fact, witnesses later testified before the Grand Jury that the school district expressly declined to withdraw the criminal charges against Parker‘s son. And, Principal Poppe testified that she told Parker that she would not agree to withdraw the criminal charges. Moreover, despite further encouragement from members of the NCPD, Principal Poppe still refused to withdraw charges. E. The Evidence Was Legally Sufficient to Support the Grand Jury’s Conclusion that Defendant FLANAGAN Committed the Crime of Receiving Reward for Official Misconduct in the Second Degree. To sustain the charge of Receiving Reward for Official Misconduct in the Second Degree, the People needed to present legally sufficient evidence that showed that defendant Flanagan ―solicit[ed], accept[ed], or agree[d] to accept any benefit from another person for having violated his duty as a public servant.‖ See P.L. § 200.25. Defendant Flanagan nonetheless states that in order for Count Two of this indictment to have been ―sufficiently plead, it must allege facts which, if proven, would constitute Official Misconduct‖ (Flanagan Memorandum of Law, pp. 14-15). This is incorrect. The charge of Receiving Reward for Official Misconduct does not require that a public servant violate his duty with the intent to obtain a benefit, as required in an Official Misconduct charge. See C.J.I. P.L. § 200.25 (Receiving Reward for Official Misconduct in the Second Degree). Here, defendant Flanagan‘s reliance on People v. Feerick, 93 N.Y.2d 433 (1999), is 30

irrelevant because Feerick does not concern the charge of Receiving Reward for Official Misconduct in the Second Degree, as that case concerned a prosecution for Official Misconduct. Moreover, the evidence before the Grand Jury was legally sufficient to indict for Receiving Reward for Official Misconduct. As discussed, the Grand Jury heard sufficient evidence that defendant Flanagan violated his duty as a public servant. E-mails introduced to the Grand Jury established that Parker sent Flanagan gift cards only one day after Flanagan notified him that the stolen property had been returned to the school. And Parker testified that these gift cards were never returned, but were, instead, accepted by defendant Flanagan. Thus, there was legally sufficient evidence to show that defendant Flanagan committed the crime of Receiving Reward for Official Misconduct in the Second Degree. F. The Evidence was Legally Sufficient to Support the Jury’s Conclusion that Defendant SHARPE Committed the Crime of Offering a False Instrument for Filing in the Second Degree. Although defendant Sharpe does not specifically move to dismiss Count Ten (Offering a False Instrument for Filing in the Second Degree), it is clear that this count is both facially sufficient as pled and sufficiently supported by evidence before the Grand Jury. The unindicted co-conspirator testified that an NCPD memo was altered to falsely state that Principal Poppe did not wish to proceed with criminal charges against Parker‘s son. The unindicted co-conspirator further testified that defendant Sharpe authorized the report knowing that the principal had refused to withdraw the criminal charges against Parker‘s son. Further, an audit report of the closeout memo that was introduced before the Grand Jury established that defendant Sharpe was the last person to make written changes to the document. Thus, all of this evidence collectively

demonstrates that the Grand Jury properly indicted defendant Sharpe on the charge of Offering a False Instrument in the Second Degree. 31

POINT TWO THE NEWLY DISCOVERED POPPE E-MAILS ARE NOT EXCULPATORY AND THE PEOPLE’S FAILURE TO OBTAIN THEM AND PRESENT THEM TO THE GRAND JURY DID NOT PREJUDICE DEFENDANTS IN ANY WAY. IN ANY EVENT, THE SUBSTANCE OF THE E-MAILS WAS, IN FACT, PRESENTED TO THE GRAND JURY (Responding to Defendant Flanagan’s Motion, Point 1; Defendant Hunter’s Motion, Point 2).

In this case, the People presented 23 witnesses and 40 exhibits to the Grand Jury. The Grand Jury heard, among other things, defendant Sharpe‘s statement that he did not believe that the school necessarily wished to proceed with a prosecution against Parker‘s son. Nevertheless,

the Grand Jury properly concluded that the evidence provided reasonable cause to believe that defendants committed the crimes charged. Defendants now claim that newly discovered

e-mails from Principal Poppe warrant dismissal of the indictment because the e-mails are exculpatory and adversely affect Principal Poppe‘s credibility. this claim should be rejected. As a threshold matter, the People did not receive Principal Poppe‘s e-mails until April 10, 2012. Contrary to Flanagan‘s allegation that the e-mails may have been in the People‘s possession prior to the indictment, the attached affidavit of Christopher Powers, attorney for the school district, shows otherwise. See Exhibit A, Powers affadivit. As described by Powers, For the reasons stated below,

despite a subpoena requesting all school documents related to the theft of property in the spring of 2009 by Parker‘s son, the People did not receive these e-mails as part of the school‘s production of documents. Instead, the People were provided with Principal Poppe e-mails only

32

after Judge Kase signed a subpoena on behalf of defendant Sharpe and additional e-mails were received. See Exhibit A, Powers affidavit.

To merit the "exceptional remedy" of dismissal of an indictment, a defendant must show that the Grand Jury proceeding was defective. See C.P.L. § 210.35(5); People v. Darby, 75

N.Y.2d 449, 455 (1990); People v. Landtiser, 222 A.D.2d 525, 526-27 (2d Dept. 1995). A Grand Jury proceeding is defective when it fails to conform to the requirements of Article 190 of the Criminal Procedure Law to such a degree that the integrity of the Grand Jury is impaired resulting in prejudice to the defendant. C.P.L. §§ 210.20(1) (c), 210.35(5). This standard "is People v.

very precise and very high" and "does not turn on mere flaw, error or skewing."

Darby, 75 N.Y.2d at 455; People v. Winningham, 209 A.D.2d 461, 462 (2d Dept. 1994). The focus on the inquiry is on the effect of the alleged error on the Grand Jury's investigation and the resultant possibility of prejudice to the defendant, rather than on the alleged error itself. v. Gonzalez, 175 A.D.2d 810, 811 (2d Dept. 1991). Indeed, the Court must view the evidence in the light most favorable to the People; that is, the Court must accept the People's evidence as true, and then determine whether that evidence was sufficient to support the elements of the crimes charged. See Jensen, 86 N.Y.2d at 252; People

People v. Galatro, 84 N.Y.2d at 163; Swamp, 84 N.Y.2d at 84; People v. Mikuszewki, 73 N.Y.2d 407, 411 (1989). Thus, the Court must defer all questions as to the weight of the evidence because that is exclusively the province of the petit jury. See People v. Galatro, 84 N.Y.2d at

164 (on motion to dismiss, court is precluded from weighing proof or examining its adequacy); People v. Finley, 104 A.D.2d 450, 451 (2d Dept. 1984) (questions of witness credibility are for the trier of fact and may not be determined on a motion to dismiss the indictment).

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Significantly, the newly discovered e-mails are neither exculpatory nor can they provide significant impeachment material against Principal Poppe. In the e-mail to Coffey, Principal

Poppe stated that she needed to speak to the [s]uperintendent about whether Parker‘s son would be arrested if Parker‘s son returned all of the property. She also let Coffey know that Parker‘s son had confessed to Parker and his wife that he had stolen the property from the school, and that defendant Sharpe had spoken to Principal Poppe about the criminal investigation. Consistent with her Grand Jury testimony, Principal Poppe did not indicate to Coffey in this e-mail that she would be willing to withdraw criminal charges against Parker‘s son. ―The People generally enjoy wide discretion in presenting their case to the Grand Jury and are not obligated to search for evidence favorable to the defense or to present all evidence in their possession that is favorable to the accused even though such information undeniably would allow the Grand Jury to make a more informed determination. In the ordinary case, it is the

defendant who, through the exercise of his own right to testify and have others called to testify on his behalf before the Grand Jury brings exculpatory evidence to the attention of the Grand Jury.‖ People v. Lancaster, 69 N.Y.2d 20, 25-26 (1986) (internal citations omitted); accord People v. Mitchell, 82 N.Y.2d 509, 515 (1993). Indeed, a Grand Jury need not even be charged on a particular defense unless it has the ―‘potential for eliminating a needless or unfounded prosecution.‘‖ Lancaster, 69 N.Y.2d at 27 (quoting People v. Valles, 62 N.Y.2d 36, 38 (1984)).

These principles were applied by the Second Department in People v. Ramjit, 203 A.D.2d 488 (2d Dept. 1994). There, reversing the lower court‘s order dismissing indictments against three co-defendants, the court concluded that the prosecutor had exercised sound discretion in declining to call before the Grand Jury witnesses who, according to one of the defendants, would have established that he did not commit the crime. 34 People v. Ramjit, 203

A.D.2d at 489. The court emphasized that ―the evidence bore principally upon the victim‘s credibility and, as such, was more appropriately reserved for presentation to the petit jury than to the Grand Jury.‖ Id.

Analogous to Ramjit, the People were not required to obtain or present the Grand Jury with the May 22, 2009, emails of JFK High School Principal Poppe that were recently obtained by defendants. Like the evidence at issue in Ramjit, the emails would, at most, have impeached

Principal Poppe‘s credibility before the Grand Jury and were, thus, more appropriately reserved for the presentation to the petit jury. Moreover, they did not even come into the People‘s possession until April 10, 2012. As discussed, despite receiving a so-ordered subpoena for all

records related to the theft of electronic property from JFK High School in May, 2009, the school attorney failed to located and turn over these e-mails. Following a second subpoena issued on behalf of defendant Sharpe in March, 2012, the school attorney conducted a more exhaustive search, found the e-mails, and disclosed them to the People and defendants. Finally, the e-mails

did not have the potential for eliminating a needless or unfounded prosecution and, thus, their absence did not prejudice defendants. Although the Grand Jury did not see the e-mails, it did, in fact, hear testimony regarding their substance. The Commanding Officer of the Detective Squad investigating the crime

testified that no arrest was made over the first weekend of the investigation because Principal Poppe wanted an opportunity to speak to her school administrator before the police department moved forward with an arrest. Moreover, Sharpe said in a video statement heard by the Grand Jury, and in an e-mail dated June 1, 2009, that the school had never made clear that it wanted to proceed with criminal charges against Parker‘s son. Sharpe wrote in the e-mail that the school administrator was 35

deciding whether to proceed with criminal charges.

Finally, in many of the e-mails introduced

before the Grand Jury, Parker stated that his attorney was still trying to negotiate a non-criminal disposition of his son‘s matter. Despite this evidence, the Grand Jury still concluded that defendants had committed the crimes charged. Thus, in light of all of the evidence presented to

the Grand Jury, defendants cannot sustain their burden of showing that they suffered the possibility of prejudice from the absence of the e-mails attached to their moving papers. C.P.L. § 210.35(5). Moreover, the e-mails were not exculpatory and it was highly unlikely that, had the Grand Jury seen them, it would have declined to indict. 679 (2d Dept. 1992). See People v. Perry, 187 A.D.2d 678, See

The Grand Jury was presented with ample evidence that the school would The officer who originally spoke

not agree to withdraw criminal charges against Parker‘s son.

to Principal Poppe testified that Principal Poppe signed a 32(b) complaint stating that she wanted Parker‘s son arrested for the thefts. The detective, who had been assigned the case because of

his relationship with the administrator, testified that during his first interview with Principal Poppe, she was adamant that Parker‘s son be arrested. The detective, dispatched to return the stolen property following defendant Hunter‘s directive to defendant Sharpe, testified that Principal Poppe refused to sign any withdrawal of prosecution in exchange for the return of property. Principal Poppe and her colleague also testified that on the day that the property was

actually returned to the school, at defendant Flanagan‘s direction, the unindicted co-conspirator attempted to have her sign a withdrawal of prosecution form and that she again refused. Finally, an attorney hired by the Parker family testified that no school administrator ever expressed a willingness to dismiss the criminal complaint if all of the stolen property were returned. Based upon all of this evidence, the Grand Jury correctly concluded that the school 36

wanted to proceed with criminal charges against Parker‘s son and Principal Poppe‘s e-mails would not have affected this conclusion. In any event, the e-mails themselves are not inconsistent with Principal Poppe‘s Grand Jury testimony. She testified consistently with the e-mail, stating that she never told anyone in She further testified

law enforcement that she was willing to withdraw the criminal charges.

that the superintendent was aware that Principal Poppe reported the theft to the police and that the superintendent‘s critical decision related to the administrative proceedings against Parker‘s son not the criminal investigation. Her testimony, when read in its totality, is not inconsistent with these e-mails in which she wrote that, following a telephone call from defendant Sharpe, she wanted to await the superintendent‘s return from New Orleans before the police arrested Parker‘s son. To the extent that the e-mails bear on Principal Poppe‘s credibility, this Court Instead, in its review of the minutes, See People v. Finley, 104 A.D.2d

should not pass on her credibility in deciding this motion. this Court must accept Principal Poppe‘s testimony as true. 450 (2d Dept. 1984).

Finally, defendants‘ claims that these e-mails support their defense that they reasonably believed the school wanted to drop the charges is utterly belied by the Grand Jury record. Poppe‘s e-mail to Coffey was sent on May 22, 2009, after 6:00 pm.9 The Grand Jury testimony of a high-ranking NCPD officer showed that defendant Hunter had already inserted himself into the investigation before Poppe‘s e-mail was ever written when he told the Squad Commander that her squad would retain the investigation. Also, before this e-mail was sent, defendant Sharpe, at defendant Hunter‘s direction, had already met with Parker at the precinct. Finally,

9 The work records of Coffey, not introduced to the Grand Jury, show that Coffey left work on May 22 nd at 5:17 pm and did not return to work until May 27th. See Coffey‘s work records, attached hereto as Exhibit B.

37

before Coffey even had a chance to read the e-mail, defendant Hunter had already met with Parker at a diner to discuss the thefts, and made a two-minute phone call to the precinct following the diner meeting. Moreover, defendant Hunter‘s claim that this e-mails show that he could have reasonably believed that the school administrators did not want Parker‘s son arrested will also be negated at trial by evidence obtained post-indictment. Following Principal Poppe‘s e-mail to Coffey,

defendant Hunter reached out to Principal Poppe‘s relative, a member of the NCPD who had recently been under defendant Hunter‘s command. During this telephone conversation,

corroborated by the telephone records of defendant Hunter and the relative, defendant Hunter, in an eleven-minute conversation, asked this young officer to reach out to the principal to determine her course of action and to let her know that Parker‘s son was a ―good kid‖ who wanted to go to college, suggesting that defendant Hunter wanted the officer to convince Principal Poppe to drop the criminal charges. Despite defendant Hunter‘s inappropriate request, Principal Poppe‘s

relative properly refused to speak to Principal Poppe about this case. Flanagan also claims prejudice from the absence of Principal Poppe‘s e-mail from the Grand Jury presentation. An analysis of the Grand Jury minutes, however, demonstrates that

this claim is also without merit. The Grand Jury heard testimony that Flanagan did not even become involved with the Parker investigation until after June 16th, the day Principal Poppe unequivocally stated that she would not sign a withdrawal of prosecution, and that fact was known by defendants Hunter and Sharpe, the unindicted co-conspirator, and Parker. date, Principal Poppe made clear that she expected a prosecution of Parker‘s son. On that

Further, the

Grand Jury heard that defendant Flanagan knew of defendant Hunter‘s failed attempt to return the stolen property to the school before his involvement. 38 Defendant Flanagan‘s claim that

Principal Poppe‘s e-mails may have altered the Grand Jury‘s decision to indict him is therefore speculative and highly improbable. Moreover, there is no indication that Flanagan even knew about the singular e-mail between Principal Poppe and Coffey. The evidence in the Grand Jury

established that Coffey and defendant Flanagan never had any discussion about the case. Defendant Flanagan‘s many e-mails that were recovered after a full forensic examination of the department‘s back-up tapes fail to show that Flanagan had any knowledge of or interest in the principal‘s state of mind. Defendant Sharpe also cannot claim prejudice in the Grand Jury presentation because of the People‘s failure to present these newly discovered e-mails. Defendant Sharpe was twice told that Principal Poppe would not withdraw the criminal charges against Parker‘s son, by both the unindicted co-conspirator and a second Squad detective. He also knew that Principal Poppe had stated, in the original police complaint, that she wanted Parker‘s son arrested, and defendant Sharpe‘s involvement in the investigation precipitated Principal Poppe‘s e-mail to Coffey. Moreover, the Grand Jury learned that defendant Sharpe took no steps to have this matter investigated in any meaningful way. Defendant Sharpe did not have his detective speak to any

witnesses, including the friend of Parker‘s son who returned some of the stolen property, the school official who saw Parker‘s son in the school on the night of the theft, or Parker‘s wife who had received stolen property from her son. Defendant Sharpe allowed Parker‘s wife to return He also made no effort to

stolen property without having it photographed or documented.

retrieve video surveillance evidence showing Parker‘s son at the scene of the crime on the date that the property disappeared, and defendant Sharpe made no effort to locate the stolen property that had not been returned by Parker‘s son. From all this evidence, the Grand Jury correctly concluded that defendant Sharpe and the NCPD never had any intention of fully investigating the 39

thefts or arresting Parker‘s son. Accordingly, the introduction of these e-mails would have had no impact on the Grand Jury‘s findings because the information in them had no impact on defendants‘ states of mind. POINT THREE COUNT FIVE IS NEITHER MULTIPLICITOUS NOR DUPLICITOUS (responding to Defendant Flanagan’s Motion Point 3, [B] and [C]).______________ Defendant Flanagan contends that Count Five (P.L. 195.00(1)) is multiplicitous to Count Eight (P.L. § 195.00[2]) on the theory that ―there is no fact to be proven under Count Five that is not also required to be proven under Count Eight‖ (Flanagan Memoradum of Law, III. B). Defendant is incorrect. An indictment is multiplicitous when two or more counts charge the same crime. People v. Demetsenare, 243 A.D.2d 777, 779 (3d Dept. 1997). Put another way, counts are not

multiplicitous ―if each count requires proof of an additional fact that the other does not.‖ People v. Jackson, 264 A.D.2d 857 (2d Dept. 1999). It follows that, even when two or more counts

involve overlapping factual bases, if they charge different provisions of the Penal Law, they are not multiplicitous. People v. Kindlon, 217 A.D.2d 793, 795 (3d Dept. 1995).

Here, defendant Flanagan is charged under two different subdivisions of Official Misconduct. Subdivision one is often referred to as the malfeasance section whereas Only subdivision two requires the People to

subdivision two is the nonfeasance section.

establish a duty which the defendant refrained from performing; subdivision one is the knowing commission of an unauthorized act with no reference to any identified duty. Count Five

charges a violation of P.L. § 195.00(2), which requires proof that there existed a duty imposed upon defendant by law or which was clearly inherent in the nature of his office. 40 By contrast,

P.L. § 195.00(1), charged in Count Eight, does not have a duty element.

Clearly, Count Five This required See William

requires proof of additional facts establishing a duty that Count Eight does not. proof of an additional fact establishes that these two counts are not multiplicitous.

C. Donnino, Practice Commentary, McKinney‘s Consolidated Laws of New York Annonated, Penal Law §195.00 (2010 ed.) (explaining that subdivision one of § 195.00 is concerned with malfeasance and subdivision two is concerned with nonfeasance and that ―[w]hat is common to both subdivisions‖ is only that the subject of the offense is a public servant and that the culpable mental state is an intent to obtain or deprive another of a benefit). Defendant Flanagan‘s insistence that factually there would be no way for the People to prove one of these counts without proving the other is incorrect. It is quite conceivable in the

abstract that a trier of fact could find that while there was an unauthorized interference in the investigation, there was a failure to prove beyond a reasonable doubt that there existed the requisite duty imposed upon defendant Flanagan by law or clearly inherent in the nature of his office. Defendant Flanagan also argues that Count Five is duplicitous. Count Five properly alleges a violation of subdivision two of the Official Misconduct statute. This charge cannot

reasonably or meaningfully be considered duplicitous where the count only alleges one offense. C.P.L. § 200.30(1); see also People v. Wells, 7 N.Y.3d 51, 56 (2006). Under this indicted

count, the duty element is sufficiently detailed in the factual element of that particular count – namely, that the defendants, under the circumstances in this investigation had a duty to properly investigate and to arrest Parker‘s son where probable cause for a felony arrest existed. Defendant Flanagan wrongly asserts that he is ―charged with both distinct offenses in the same count,‖ disregarding that different elements must be established under the two subdivisions of 41

Official Misconduct and, instead, focusing solely on the partial factual overlap in the proof that establishes both Counts Five and Eight of the indictment. Moreover, despite his complaint otherwise, there is no absence of notice to defendant Flanagan of the conduct for which he stands accused. Plainly, defendant Flanagan is not being

deprived of the opportunity to defend himself as a result of an alleged duplicitous count, and has been made fully aware of the conduct from which the criminal indictment arises. See People v.

Beauchamp, 74 N.Y.2d 639, 641 (1989) (court dismissed counts as duplicitous in sex offense prosecution where an indictment charged the defendant with ―single act offenses‖ under a ―continuous crime‖ theory, thereby failing to give the defendant proper notice of the charges). Nor does any possible double jeopardy problem arise from the manner in which this count was pled. Defendant Flanagan could not be prosecuted at a later time for any technically separate acts in connection with the non-arrest of Parker‘s son because C.P.L. § 40.40 bars separate prosecution of jointly prosecutable offenses. Furthermore, the Grand Jury charge clearly distinguished subdivision one from subdivision two of the Official Misconduct statute. POINT FOUR DEFENDANTS’ MOTIONS TO SEVER ARE PREMATURE, AND, IN ANY EVENT, THIS COURT SHOULD CONSIDER A SINGLE TRIAL WITH TWO JURIES.______________________________________________ Defendants move to sever their trials from those of their co-defendants. All three

defendants argue that severance is required because a joint trial would lead to violations of Bruton v. United States, 391 U.S. 123 (1968), and that each defendant has defenses that are irreconcilable from that of their co-defendants. Defendants‘ arguments for severance are, for

the most part, premature and their motions should be denied at this time.

42

First, defendants‘ allegations that their defenses are "irreconcilable" are insufficient to serve as a basis for severance. Defendants, in fact, all share the same defense: namely, that

their conduct in the Parker investigation did not violate any duty inherent in the nature of their duties as law enforcement officers nor did they commit any unauthorized act relating to their positions as law enforcement officers knowing that the act was unauthorized by the manner in which they handled the criminal investigation of Parker‘s son. defenses are actually completely compatible. Instead, it appears that their

Defendants all claim that they acted within their

discretion by failing to have Parker‘s son arrested for the theft of stolen property and that they did not commit these acts to benefit themselves or Parker. Thus, because defendants fail to provide this Court with a reasoned, articulable basis upon which to grant the motion to sever, on this ground, severance must fail. Second, defendants Flanagan and Hunter contend that defendant Sharpe‘s videotaped statement, if entered into evidence by the People, would impermissibly implicate them without affording them an opportunity to cross-examine Sharpe. U.S. 123. People v. Bruton, 391

This ground for severance, however, is premature. At this stage, the People have

not yet made any trial decisions about whether the statement will even be introduced into evidence. Thus, the People request that this Court not decide the issuance of severance at this time for this reason at this time. In sum, there is no ground for severance. As the Court of Appeals has

recognized, the "preference for joint trials is clear," and "if proof against co-defendants is supplied by the same evidence only the most cogent of reasons warrant a severance." People v.

Ricardo B., 73 N.Y.2d 228, 232-33 (1989), citing People v. Bornholdt, 33 N.Y.2d 75, 87 (1973). Here, the case against all defendants involves a singular conspiracy that led to the indicted 43

charges.

Moreover, the evidence presented will be the same at each of the defendants‘ trials,

with all of the same witnesses having to be called at each trial, including experts in computer forensics. Thus, whereas defendants have failed to set forth any "cogent reason" for severance

at this time, their motions to sever should now be denied. If, however, at some juncture in this litigation the Court rules that severance is appropriate, the People respectfully suggest that any concerns raised by defendants could be fully addressed by conducting a single trial with two juries. (1994); People v. Ricardo B., supra. the use of two juries. People v. Irizarry, 83 N.Y.2d 557

The potential Bruton issue could be easily resolved with

Such "partial" severance would serve to further the notion of judicial

economy, minimize the use of resources, minimize impositions on the witnesses, and most importantly, defendants‘ Bruton concerns would be alleviated. POINT FIVE DEFENDANTS’ SANDOVAL APPLICATIONS ARE PREMATURE (Responding to Defendants’ Motion, Point VI). The People respectfully urge that this Court deny defendant's current applications for Sandoval information. The applications, pursuant to People v. Sandoval, 34 N.Y.2d 371 (1974), for the preclusion of evidence pertaining to defendants‘ bad acts and criminal convictions are premature and should be more properly made before the trial judge prior as the defendants‘ prior bad acts and convictions bear directly upon their credibility as a witnesses and would be of assistance to the trial jury in determining their credibility. C.P.L. § 240.43; see People v. Sandoval, 34 N.Y.2d 371. The People are aware of the statutorily imposed obligation to notify defendants, upon their request, of all specific instances of "prior uncharged criminal, vicious, or immoral 44

conduct" of which the People have knowledge and which they intend to use at trial for impeachment purposes. See C.P.L. § 240.43. In fact, the People have begun to provide such information to defendants in its response to defendants‘ Demand for Discovery. Moreover, any additional notifications will be made, pursuant to § 240.43 of the Criminal Procedure Law, immediately prior to the commencement of jury selection. Accordingly, defendants‘ Sandoval applications should be denied in its entirety at this time. CONCLUSION For the aforementioned reasons, this Court should deny defendants‘ omnibus motions.

Respectfully submitted,

KATHLEEN M. RICE District Attorney Nassau County

STEPHEN ANTIGNANI BERNADETTE FORD Assistant District Attorneys of Counsel

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