Rude & Unprofessional Conduct by Public Servants: When the Criminal Threshold for Official Misconduct is Breached

Official Misconduct, a crime codified as New York Penal Law 195.00, is not one of the more common criminal arrest charges in New York. While NY PL 195.00 is atypical in that it only a certain group of people can commit this offense, it is a crime that is equally serious in terms of its potential punishment of one year in jail as it is in its potential to derail careers and livelihoods. Very briefly, you are guilty of Official Misconduct if, as a public servant, with the intent to obtain a benefit or deprive another person of a benefit you either (1) commit an act relating to your office but constituting an unauthorized exercise of your official functions, knowing that such act is unauthorized or (2) you knowingly refrain from performing a duty which is imposed upon you by law or is clearly inherent in the nature of you office.

To help better understand the parameters and elements that constitute the crime of Official Misconduct in the New York Penal Law and New York courts, People v. Carlos Becker, NYLJ 1202633990493 (Sup. BX, Decided November 3, 2013), dissects what may be rude and unprofessional conduct but not the crime of Official Misconduct, PL 195.00. On or about March 11, 2013, Becker, a NYC police officer, pulled over and arrested Erica Noonan for driving while intoxicated. The facts leading up to the Official Misconduct charge included, amongst other things, that the defendant police officer touched Noonan’s breast; that the defendant gave Noonan his personal telephone number so she could call if she needed anything; and, finally, that the defendant made a video recording of Noonan while she was handcuffed, apparently because defendant believed Noonan had a “hot body” (stay classy, officer!). On March 14, Noonan texted the defendant, which resulted in regular communication between defendant and Noonan. During these conversations, defendant, amongst other things, offered to help Noonan with her case by speaking with the ADA and Noonan’s employer; defendant offered to check her DMV record; and defendant sent pictures of himself to Noonan’s cell phone.

On March 24, defendant and Noonan went on a date in which they first had dinner and drinks and then proceeded to a bar, where each individual consumed shots and mixed drinks. Sometime thereafter, Noonan blacked out and only recalled “leaving the bar, getting into defendant’s car, going over a bridge, getting out of defendant’s car, and waking up in defendant’s bed with her eye swollen shut.” She asked defendant why her eye was swollen, to which he responded that she had fallen while intoxicated. Defendant denied ever having any sexual contact with her.

With all this said, the District Attorney’s Office charged the defendant with one count of Official Misconduct (NY PL 195.00) based solely upon the video recording made during Noonan’s arrest; thus, the Court limited their analysis to the video. Past courts have stated that the purpose of the Official Misconduct statute is to “encompass flagrant and intentional abuse of authority by those empowered to enforce the law.” People v. Feerick, 93 A.D. 2d 433, 445 (1999). In order for an Official Misconduct charge to stand, the People are required to show “1) that a public servant intended to obtain a benefit; and 2) that a public servant knew his or her acts were an unauthorized exercise of his official function.” Id. at 446. The Court held that neither of these requirements was established in this case.

As to the first element, the Court stated that although defendant’s actions both before and after the recording were to “further his personal relationship” with Noonan, the videotaping in and of itself “did not advance this objective.” In other words, the Court chose not to “characterize an act designed to provide a private satisfaction, undisclosed to the object of desire, to constitute a benefit.”

As to the second element, this also was not met because the People’s evidence “failed to establish that defendant knew that the act of videotaping Noonan was an unauthorized exercise of police function.” Continuing, the Court wrote that the People did not offer a specific rule or regulation in the Patrol Guide that prohibited the defendant from making a “personal recording” of Noonan. Furthermore, defendant freely and voluntarily disclosed this video to an Internal Affairs Bureau detective suggesting that defendant “did not know that making a personal video while on-duty was wrong.” Not only did defendant openly disclose the video, he also volunteered to play it for the detective and allowed him to make a copy of the video further evidencing that “defendant did not believe he had done anything wrong in making this video.” Therefore, the Court found that the evidence “does not establish a prima facie proof of all the elements of the crime charged.”

In a critical closing, the Court wrote that this determination “[was] not intended to condone defendant’s actions, which…were not only insulting, demeaning, and disrespectful to Noonan, but also wholly unworthy of a New York City police officer.” Concluding, the Court emphasized, “defendant’s actions represent serious errors of judgment more appropriately address in a disciplinary forum”, not in a court of law. Id. at 448.

To learn more about the crime of Official Misconduct pursuant to New York Penal Law 195.00 or to educate yourself about the various crimes set forth in the Penal Code, New York criminal procedure, defenses and other practical elements of criminal practice, review this blog, follow the links found in this entry or go directly to the website.

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