Understanding Official Misconduct & Obstructing Governmental Administration with a “Brady” Twist: NY Penal Law Sections 195.00 & 195.05

Being charged with and arrested for any misdemeanor crime in New York is no walk in the park. A New York criminal defense attorney need not advise you of this obvious fact. The reality is, any accusation has significant and collateral consequences. When the crimes involve some alleged form of fraud or dishonesty involving the government, the offense looks even uglier. Two crimes that fit in this mold are Official Misconduct, New York Penal Law 195.00 and Obstructing Governmental Administration in the Second Degree, New York Penal Law 195.05. As ugly as the crimes may be, however, an arrest for either PL 195.00 or PL 195.05 does not equate to guilt beyond a reasonable doubt.

Although I have blogged and drafted materials on both of these crimes, before addressing a recent court decision it is worth briefly explaining the parameters and definitions of these offenses. To be guilty of Official Misconduct pursuant to NY PL 195.00, one first must be a public servant. Further, one must have the intent to obtain a benefit or deprive another person of a benefit. In addition to these elements, as charged in the case discussed below and according to subsection two of this crime, one must knowingly refrain from performing a duty that one is imposed by law or clearly inherent in the nature of one’s office.

An obviously different crime, Obstructing Governmental Administration in the Second Degree, in violation of NY PL 195.05, is defined differently than Official Misconduct. Here, one is guilty of this crime if one intentionally obstructs, impairs or perverts the administration of law. This must be done by means of intimidation, physical force or interference, or by means of any independently unlawful act. Now that we have addressed these two offenses, lets review a recent legal decisions that will give us a better understanding of these crimes.

In People v. Nicholas Lemma, 2010NA026090, NYLJ 1202590033334, at *1 (Dist., NA, Decided February 11, 2013), the defendant was arrested for Official Misconduct and Obstructing Governmental Administration in the Second Degree. At the time of his arrest, Lemma was a police officer and detective in Nassau County. One of his investigations involved an alleged robbery by Raheem Crews. Despite having direct knowledge that Mr. Crews was incarcerated at the time of the alleged robbery, and therefore Crews could not have committed the crime, Lemma did not share this information with prosecutors or other law enforcement agents at the time of Crews’ arrest. For multiple months, Crews was charged with varying degrees of robbery for the his alleged conduct before the case against him was ultimately dismissed.

It is clear from the nature of Lemma’s employment that as a police officer, Lemma was a public servant. Not as obvious was whether by keeping the fact of Crews’ incarceration to himself, Lemma violated a duty imposed by law or clearly inherent in the nature of his office as a police officer. According to the court (a review of the actual case goes into much greater detail of when this duty arises in general):

“While the People [prosecution] are correct that police officers have an obligation to disclose exculpatory information in their possession, See: People v. Russo, 109 A.D.2d 855, 486 N.Y.S.2d 769 (2nd Dept. 1985), the People’s reliance on this principle is misplaced. The Defendant’s failure to disclose the fact that Raheem Crews was incarcerated on March 26, 2005 simply was not a violation of such a duty.”

While withholding the above information is certainly concerning and seems ethically corrupt, the court examined the officer’s “duty” in the context of the Brady rule which dictates that exculpatory evidence must be provided to the defense, but not necessarily at the point it is discovered. Although one can violate their Brady obligation, doing so is not necessarily criminal.

The court then turned to whether the defendant intend to obtain a benefit or deprived another person of a benefit. Here, the defendant argued he obtained no benefit by withholding the information and his failure to disclose “‘was anything other than ‘the product of inadvertence, incompetence, blunder, neglect or dereliction of duty [which] no matter how egregious [should] more properly be considered in a disciplinary rather than criminal forum.'” The benefit the defendant did intend to deprive the accused of, according to the People was “to deprive Crews of a benefit, namely to be exonerated, and have is liberty restored….” This intent could be inferred from the defendant’s failure to provide the exculpatory information.

Despite the People’s assertion, the court disagreed and noted that there is a very real difference between “knowledge” and “intent.” “‘Intent is the actor’s conscious aim or objective in performing certain acts, while knowledge is an awareness that a particular element of a crime is satisfied (citation omitted).'” People v. Cabassa, 79 N.Y.2d 722, 586 N.Y.S.2d 234 (1992); See also: Penal Law 15.05(1) and 15.05(2).

In short, “[i]t may appear upon the record that the defendant[] [was] guilty of stupidity and veniality and [was] unreasonable in what [he] did. But these qualities are not criminal. And we cannot substitute a reasonable man test for the essential requirement of criminal intent. Without criminal intent there is not a crime here.” People v. Mackell, 47 A.D.2d 209, 366 N.Y.S.2d 173 (2nd Dept. 1975) [conviction of District Attorney of Official Misconduct for failing to disclose knowledge of scheme to defraud reversed].

Just like the insufficiency of the Official Misconduct arrest charges as contained in the complaint, elements of Obstructing Governmental Administration in the Second Degree elements were missing as well. First, the complaint did not establish the defendant’s intent to “obstruct, impair or pervert the administration of law, or prevent or attempt to prevent the performance of that function by failing to advise anyone that [the defendant] was incarcerated….While his silence is demonstrated to have been the result of neglect, carelessness, callousness or indifference, this is not the same thing as a ‘conscious objective or purpose’ to affect the administration of justice in any way.” Further, the criminal court complaint did not establish any intimidation or related actions or interference. In fact, the information establishes the defendant failed to take any action at all. Without an independent unlawful act, the Obstructing charge failed as well. An interesting case that walks the line between an ethical and criminal violation, Lemma is certainly a “good read.” From what the case outlines, “good” and Lemma, however, may not go hand in hand. Whether or not Crews was a jerk, condescending, a punk or a convicted criminal, all members of law enforcement have a moral and ethical obligation.

To read about the crimes is New York Penal Law 195.05 or New York Penal Law 195.00, follow the links above to New-York-Lawyers.org or search for those terms in the NewYorkCriminalLawyerBlog.Com. There you will find not only the analysis of particular statutes, but a review of legal decisions that further define New York’s criminal code.

Representing clients in all criminal arrests, indictments, investigations and trials, the founding New York criminal lawyers at Saland Law PC both served as Assistant District Attorneys in the Manhattan District Attorney prior to starting the criminal defense firm.

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