The crime of Commercial Bribe Receiving in the Second Degree carries severe consequences including a year in jail and the decimation of your career. It should go without saying that it is crucial for the prosecution to prove every element of the crime charged whether you have been arrested in Manhattan, Brooklyn, Queens or anywhere else in the State of New York. In order for a judge or jury to convict you of Commercial Bribe Receiving in the Second Degree (New York Penal Law 180.05) the State must prove that an employee, agent or fiduciary, without consent of his/her employer or principal, solicits, accepts or agrees to accept any benefit from another person upon an agreement or understanding that such benefit will influence his/her conduct in relation to his/her employer’s or principal’s affairs. (Penal Law 180.05) The key to this crime is not the payment of money but rather the agreement or understanding under which the alleged bribe receiver accepts or agrees to accept a benefit.
This law turns on some very important definitions that you and your New York criminal lawyer or bribe receiving defense attorney must understand. For example what is a benefit? According to the New York State Court of Appeals, a benefit includes “any gain or advantage to a third person pursuant to the desire or consent of the beneficiary” (Penal Law 10.00(17)). Agreement, another key term within the statute, is defined as “a mutual agreement between an employee, and a person from whom s/he solicits, accepts, or agrees to accept any benefit that such employee’s conduct in relation to his employer’s affairs will thereby be influenced.” (Penal Law 180.05). Case law, specifically the case of People v. Bac Tran, has further defined more of the terms within the statute. The term understanding is defined as “at least a unilateral perception or belief by the employee who solicits, accepts, or agrees to accept any benefit from another person that such benefit will influence the employee’s conduct in relation to his employer’s affairs.” People v. Bac Tran.
One of the key considerations for a court in a Second Degree Commercial Bribe Receiving case is whether or not the defendant’s actions were in contravention to the policies of his/her employer. The Court, in People v. Barbera, 2014BX064211, addressed what facts prosecutors must provide to establish this key element.
In People v. Barbera the defendant, a customer service representative of Consolidated Edison, allegedly paid $200.00 to expedite the installation of a gas meter. Law enforcement was notified of this transaction by someone that witnessed the alleged transaction. After arresting the defendant, prosecutors charged him with Commercial Bribe Receiving in the Second Degree (Penal Law 180.05).
In the criminal complaint, prosecutors had alleged that the defendant acted in a manner that was in contravention of Consolidated Edison’s (the defendant’s employer) policies. The defendant’s attorney challenged the facial sufficiency of the accusatory instrument. Essentially, the defendant’s attorney argued that the accusatory instrument was not adequately clear whether the deponent had direct knowledge of the defendant’s alleged conduct.
The Court held that prosecutors should have provided further evidence that the defendant’s conduct was in violation of Consolidated Edison’s policies. In this case the only evidence the prosecutors presented in favor of that assertion was the sworn testimony of a DOI investigator. The Court held that it was hardly plausible that this investigator, employed by the State of New York and not Consolidated Edison, would have sufficient knowledge of Consolidated Edison’s policies to determine when the defendant had violated those policies. The Court ultimately granted the Defendant’s motion to dismiss the accusatory instrument.
While the above case review is not overly in depth, it touches on the critical components of a Commercial Bribe Receiving arrest, charge and indictment. Regardless of the element that prosecutors may have failed to satisfy and prove beyond a reasonable doubt, it is incumbent upon you and your criminal defense attorney to ascertain the strongest defense .
To learn more about Commercial Bribe Receiving and related New York White Collar Crimes, review this blog, and the website and blog linked below.
Crotty Saland PC is a New York criminal defense firm staffed by attorneys and criminal lawyers who previously served collectively in the Manhattan District Attorney’s Office and United States Attorney’s Office.