People v Norman

[*1] People v Norman 2004 NY Slip Op 51851(U) Decided on December 15, 2004 Supreme Court, Kings County Marcus, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 15, 2004
Supreme Court, Kings County

THE PEOPLE OF THE STATE OF NEW YORK

against

Clarence Norman, JR., Defendant.



5588/03

Martin Marcus, J.

The defendant in this case, a New York State Assemblyman, was a successful candidate for re-election in 2000 and 2002. The Committee to Re-Elect Assemblyman Clarence Norman, Jr. ("the Committee") is a political organization that was formed to receive contributions and make expenditures on behalf of the defendant's re-election campaigns. According to the evidence before the grand jury, in 2000 and 2002 the defendant spoke with the executive director of the New York State Association of Service Stations and Repair Shops ("the Association"), a political action committee ("PAC"), and asked that the Association pay various of his campaign expenses. Pursuant to the agreements each year that the Association would do so, the executive director received invoices for purchases made for various campaign expenses, and he caused the Association to pay all but one of those invoices. Although those payments constituted in-kind contributions to the defendant's campaigns, the defendant did not inform the treasurer of the Committee that the Association had made them. Because she was unaware of the payments, the treasurer did not include them in the January 2001 Periodic Report ("the January 2001 Report") or the January 2003 Periodic Report ("the January 2003 Report") she was required to file with the New York State Board of Elections ("the Board of Elections").

Based on this evidence, the Grand Jury of Kings County returned a ten count indictment against the defendant. The first, third, fourth and ninth counts relate to the expenses paid by the Association in 2000. The first count charges him with Offering a False Instrument for Filing [Penal Law §175.35], and alleges that he presented the January 2001 Report to the Board of Elections, knowing the report contained "a false statement and false information" and with intent to defraud the Board. The third and fourth counts charge him with Falsifying Business Records in the First Degree (Penal Law §175.10), and allege that he prevented the making of a true entry and caused the omission of such an entry in the records of the Committee (count three) and the Board of Elections (count four). The ninth count charges the defendant with a criminal violation of the Election Law, see Election Law § 126(2), and alleges that he "knowingly and willfully" solicited a person to make expenditures in connection with his candidacy, "for the purpose of evading the contribution limitations" of Article 14 of the Election law, in violation of Election Law §14-126(4).

The remaining counts relate to the expenses paid by the Association in 2002. The second count charges him with Offering a False Instrument for Filing [Penal Law §175.35], and alleges that he presented the January 2003 Report to the Board of Elections, knowing the report contained "a false statement and false information" and with intent to defraud the Board. The fifth and sixth counts charge him with Falsifying Business Records in the First Degree (Penal Law §175.10), and allege that he prevented the making of a true entry and caused the omission of [*2]such an entry in the records of the Committee (count five) and the Board of Elections (count six). The seventh, eighth and tenth counts charge the defendant with criminal violations of the Election Law, see Election Law § 126, and allege, respectively, that he received a contribution and failed to provide the treasurer of the Committee with "a detailed account" of it within 14 days of its receipt, in violation of Election Law §14-122; that he received a contribution from a single contributor that amounted to more than ninety-nine dollars and failed to file a statement of its receipt, in violation of Election Law §14-102; and that he "knowingly and willfully" solicited a person to make expenditures in connection with his candidacy, "for the purpose of evading the contribution limitations" of Article 14 of the Election Law, in violation of Election Law §14-126(4).

In an omnibus motion, the defendant seeks inspection of the grand jury minutes and dismissal or reduction of the charges in the indictment, claiming that the evidence before the grand jury was legally insufficient and that the grand jury proceedings were defective. The defendant also claims that the indictment itself is defective, and he moves to dismiss it in the interests of justice. In addition, the defendant challenges the constitutionality of Election Law § 14-126(4). Finally, the defendant moves for an order directing the People to provide him with a Bill of Particulars pursuant to CPL § 200.95, and for discovery and inspection under CPL § 240.40. Upon consideration of the papers submitted by both the defendant and the People, and after hearing oral argument from both parties, for the reasons set forth below counts four and six, charging the defendant with falsifying the business records of the Board of Elections, and counts seven and eight, which charge the defendant with Election Law violations, are dismissed, but the motion to dismiss as to the remaining counts of the indictment is denied, as are the defendant's other motions, except as specified below.

THE GRAND JURY EVIDENCE

The defendant's motion for the Court to inspect the grand jury minutes is granted; the Court has inspected and reviewed the grand jury minutes. The defendant's motion for disclosure of the grand jury minutes to him is denied since disclosure is unnecessary for the resolution of his motions.[FN1]

The following is a summary of the evidence before the grand jury. The Committee is an [*3]organization formed to receive contributions and make expenditures on behalf of the defendant's re-election campaign. The Committee's office is located in the Brooklyn home of its treasurer. The Committee has no other staff, with the exception of a "co-assistant,"[FN2] who substitutes for the treasurer in her absence The treasurer and the "co-assistant" are the only signatories on the Committee's bank account. On behalf of the Committee, the treasurer raises funds for the defendant's campaigns, accepts campaign contributions, and pays campaign-related expenses.

In addition to paying campaign-related expenses and organizing fund-raising events, the treasurer is responsible for filing, inter alia, periodic reports in January and July with the Board of Elections that list the campaign contributions the Committee has received and the expenditures it has made. Every campaign contribution must be reported, including any in-kind contribution. In-kind contributions include the payment of the Committee's invoices or bills by third parties.[FN3] Unless the contributions from a single contributor aggregate ninety-nine dollars or less, the treasurer is required to report the contributor's name and address, the date and amount of the contribution, and, if the contribution was made by check, the check number.

The Election Law limits the amount of contributions a candidate for the New York State Assembly can receive from a single contributor during each election cycle.[FN4] The same limitations apply to individuals and to PAC's. There are two limitations applicable to each cycle, one for the primary election and one for the general election. In the 2000 and 2002 election cycles, the limitation on contributions by an individual to a candidate for the New York State Assembly was $3,100 for the primary election and $3,100 for the general election. In 2000, the primary election was held on September 12th, and the general election was held on November 7th. In 2002, the primary election was held on September 10th, and the general election was held on November 5th.

In a form known as a "CF-16 " filed with the Board of Elections for the 2000 election cycle, the defendant stated under oath that he was a candidate for election, that he had made no campaign expenditures relating to his candidacy, and that he did not intend to make such expenditures, except through the Committee, which would file reports on his behalf. A candidate who receives a contribution after filing a "CF-16" must turn the contribution over to the Committee's treasurer within fourteen days of its receipt, and the Committee must report the contribution, along with any others it receives directly, to the Board of Elections. In the 2002 election cycle, the Committee played the same role, filing reports of contributions on behalf of the defendant's campaign.

The Association is a trade advocacy group that represents service stations and repair shops statewide, and which promotes legislation beneficial to the industry and supports politicians who [*4]sympathize with their views and are accessible to the Association. The Association maintains a PAC account which it uses to make contributions to the politicians it supports. The Association has in the past made contributions to the defendant's campaigns and received assistance from him in legislative and other matters. In the spring of 2000, the defendant had a conversation with the executive director of the Association in which the defendant asked for the Association's support in the coming primary. More specifically, the defendant asked if the executive director "would pay some bills." Although the defendant had never before made such a request, the executive director agreed to do so.

Subsequent to that conversation, on July 11, 2000, the Association's office manager received a fax from the defendant's District Office which included an invoice from Branford Communications. Branford is a company that writes, designs, and arranges for the mailings of literature and the placement of television advertisements for political campaigns, and that, beginning in the Spring of 2000, designed and created campaign literature for the defendant's 2000 primary campaign. The invoice, which was directed to the Committee, was in the amount of $2,493.30, for five thousand 17 x 22 inch two-color posters. After the executive director reviewed the invoice, he directed the officer manager to write a check in that amount payable to Branford Communications and drawn on the Association's PAC account. The executive director signed the check, which was dated July 11, 2000. Based on the transmission and receipt of the check both the Association's office manager and Branford Communications marked the invoice paid.

On July 18, 2000, the executive director of the Association received a second fax from the defendant's District Office, which included a cover sheet bearing the words "as per our conversation," in the defendant's handwriting, and an invoice from M.T. Packaging, a company that serves as a broker for the sale of plastic shopping bags and other kinds of store packaging. The invoice, which was in the amount of $2,430, was addressed to "Assembly (sic) Norman," and was for 2700 "assembly plastic bags." Not wanting to deplete the PAC account in an election year, the executive director told the office manager to take a quarter of the amount from that account and the rest from three other accounts. The office manager wrote, and the executive director signed, four checks, each dated July 27, 2000, each for $607.50, each drawn on a different account, and each payable to M.T. Packaging Inc. M.T. Packaging received these four checks in payment of the invoice, and the bags were shipped to the Thurgood Marshall Democratic Club, care of Clarence Norman.[FN5]

Sometime in July of 2000, while the Committee had an outstanding invoice of $6,420.65 from Branford Communications, the defendant called Branford's owner and asked him to prepare a separate invoice of $2500, which he said would be paid by someone else. The owner deducted that amount from the total due, generated a new invoice for $2500, dated August 4, 2000, and faxed it to the defendant. On August 4, 2000, the executive director of the Association received the invoice, which stated that the amount due was for mail, labels and printing. The executive director gave instructions that payment of this invoice be made from three of the Association's accounts, again including the PAC account. Three checks were prepared, two dated September 8, 2000, and one [*5]dated September 9, 2000, each drawn on a different account, which the executive director signed. Two were for $830 and one was for $840, and each was payable to Branford Communications. Branford received and accepted the three checks from the Association as payment for the invoice. The remaining balance due to Branford was paid by a check drawn on the Committee and signed by its treasurer.

In all, in 2000, the Association paid invoices addressed to the Committee totaling $7,423. The treasurer of the Committee was aware that expenses incurred by the Committee that were paid by a third party were "in-kind" contributions she was required to report to the Board of Elections. However, because she was unaware of the payments the Association had made on these invoices, she did not include them in any of the reports she was required to file with the Board of Elections, including the January 2001 Report, which she prepared and mailed to the Board of Elections on January 23, 2001.

Sometime in 2002, the executive director of the Association had another conversation with the defendant in which the defendant asked whether the executive director would be willing to assist him with some of his financial obligations with regard to the 2002 campaign. The defendant said he would send the bills to the executive director's office, and the executive director agreed to pay them. Beginning in the spring of 2002, Branford Communications performed work for the defendant's primary campaign. That summer, the defendant asked the owner of Branford Communications to produce two invoices in connection with that work, each for $2700. The defendant explained that he wanted a third party to pay the invoices as part of his campaign expenses. The owner prepared the invoices, each of which was dated August 20, 2002, each of which was in the amount of $2700, and each of which explained that the billing was for "Printing-Production-Labels-Mail House-Deliveries." At the defendant's request, the portion of each invoice that would have indicated to whom the invoice was addressed was left blank.

After both invoices were faxed to the Association from the defendant's District Office, the executive director of the Association directed that both be paid out of the PAC account and signed two checks for $2700, each dated September 12, 2002, and payable to Branford Communications. One check was sent to and received by Branford Communications. However, the other check was not, and was voided instead, because, according to the executive director, the Association thought that $5400 was "too much for it to pay."[FN6] Because the treasurer of the Committee was unaware of the $2700 payment the Association had made to Branford Communications, she did not include it in any of the reports she filed with the Board of Elections, including the January 2003 Report, which she filed with the Board on January 27, 2003.

THE SUFFICIENCY OF THE GRAND JURY EVIDENCE

The defendant first challenges the legal sufficiency of the evidence to support the charges in the indictment. " '[L]egally sufficient evidence' means competent evidence which, if accepted as true, would establish every element of the crime charged and the defendant's commission of it." [*6]People v. Manini, 79 NY2d 561, 568 (1992); People v Haney, 30 NY2d 328, 335-336 (1972); CPL §70.10 (1). Evidence before the grand jury is legally sufficient, if when "viewed in the light most favorable to the People, if unexplained and uncontradicted, would be sufficient to warrant conviction by a trial jury." People v. Manini, 79 NY2d at 568-569, citing People v Jennings, 69 NY2d 103, 114-115 (1986); People v Pelchat, 62 NY2d 97, 105 (1984). Even when assessing the sufficiency of the evidence in an entirely circumstantial case, the question for the Court is "whether the facts, if proven, and the inferences that logically flow from those facts supply proof of every element of the charged crimes." People v. Deegan, 69 NY2d 976, 979 (1987).

Based on the evidence before it, the grand jury could find that the defendant solicited and received from the Association $7423 in in-kind contributions for his 2000 primary campaign, and solicited the Association to make $5400 and received from it $2700 in in-kind contributions for his 2002 primary campaign. From this evidence, the grand jury could also find that the defendant intentionally failed to inform the treasurer of the Committee of these contributions, thus causing the January 2001 and January 2003 Reports, each a written instrument the treasurer filed with the Board of Elections, and each part of the business records of the Committee, to contain false statements or information, and to omit a true entry. Finally, from this evidence, the grand jury could find that the defendant knowingly and willfully violated the Election Law by failing to provide the treasurer with a "detailed account" of the 2002 contributions within fourteen days of their receipt and by failing to file with the Board of Elections a statement that he received those contributions, and that in both 2000 and 2002, he knowingly and willfully violated the Election Law by soliciting the executive director of the Association to make expenditures in connection with his candidacy, for the purpose of evading the contribution limitations of Article 14.[FN7] Thus, the evidence is legally sufficient to [*7]support all but the fourth and sixth counts of the indictment.[FN8] Because the January 2001 and 2003 Reports are not "business records" of the Board of Elections, the evidence is not legally sufficient to support those two counts.

The defendant makes specific challenges to the legal sufficiency of the evidence as to each count. The first and second counts of the indictment charge him with Offering a False Instrument for Filing in the First Degree. This crime is committed, in relevant manner, by a person who, "knowing that a written instrument contains a false statement or false information, and with intent to defraud the state ...[,] offers or presents it to a public office ... with the knowledge or belief that it will be filed with ... such public office." Penal Law § 175.35. The instruments in this case are the January 2001 and 2003 Reports the treasurer of the Committee filed with the Board of Elections, which the grand jury could find were false because they did not include the in-kind contributions the Association made to the defendant's campaigns in 2000 and 2002.

The defendant asserts that the evidence supporting these counts is insufficient because: (1) he did not prepare, sign or file the reports; (2) because the evidence does not demonstrate that the statements were false or that he knew that they were; (3) because the evidence demonstrates that the treasurer, who filed the reports, believed them to be accurate; and (4) because there is no evidence that the defendant directed the treasurer to omit information from the reports, falsely edit them, or shield anyone's campaign contributions in them.

The defendant made virtually identical attacks upon the count of Indictment No. 6435/03 that charged him with Offering a False Instrument for Filing, and which was based on the failure of the January 2001 Report to include as a contribution a $5000 check payable to the Committee which the defendant deposited in his personal account. In a decision on the defendant's omnibus motions, this Court rejected all of those arguments. People v. Norman, 2002 WL 2624644 (Sup. Ct. Kings Co. 2004). For the reasons more expansively set forth in that decision, those arguments are also rejected here.

The defendant may be held liable for these crimes, even though he did not himself prepare, sign or file the reports. People v. Bel Air Equip. Corp., 39 NY2d 48 (1976); People v. Papatonis, [*8]243 AD2d 898 (3d Dept. 1997). Here, as in Bel Air, the grand jury could find that the defendant had the filing of the 2001 and 2003 January Reports "in mind" when he did not inform the treasurer of the Committee of the in-kind contributions to the defendant's campaign made by the Association in 2000 and 2002, People v. Bel Air, 39 NY2d at 56, and here, as in Papatonis, there was evidence that the defendant, who had sworn that the treasurer would file financial reports on his behalf, knew that these reports would be filed, and knew that they would not include those in-kind contributions. Compare People v. Shu, 216 AD2d 46, 47 (1st Dept. 1995).

The evidence that the Association received the Branford Communications and M.T. Packaging invoices and paid them is clearly sufficient to establish that the 2001 and 2003 January Reports, which did not include them, contained false statements or information. The evidence that the defendant himself asked the Association's executive director to pay the invoices, sometimes had Branford's owner prepare separate invoices for transmission to the Association, asked him on one occasion to leave blank on two of the invoices the entity to which they were addressed, and failed to inform the treasurer of the Committee that the vendors had paid these invoices, is more than sufficient to establish that the defendant knew that when the January 2001 and 2003 Reports were submitted, each would contain a false statement or information concerning the in-kind contributions made by the Association.

The defendant's claim that he could be held liable for this crime only if the person who filed the report knew that it contained a false statement or information is also without merit. Penal Law § 20.05(1); see Papatonis, supra, 243 AD2d at 900 ("[t]he mere fact that [the defendant's prospective employer] did not possess the necessary mens rea for the commission of the offense [was] no defense to defendant").

Finally, while there is no evidence that the defendant explicitly directed the treasurer to omit these in-kind contributions from her reports, the evidence that the defendant delegated to her the responsibility for filing reports of contributions made to his campaign, and then withheld knowledge of these in-kind contributions from her is sufficient to establish that he intentionally aided her albeit without her knowledge to submit false statements to the Board of Elections, no less than if he had prepared the reports himself. Penal Law §§ 20.00; 20.05; see People v. Papatonis, supra.

The third and fourth counts charge the defendant with the crime of Falsifying Business Records in the First Degree, and allege that "on or about and between July 1, 2000, and January 23, 2001," he falsified the business records of the Committee (count three) and of the Board of Elections (count four). The fifth and sixth counts charge the defendant with the same crime, and allege that "on or about and between August 20, 2002, and January 27, 2003," he falsified the business records of the Committee (count five) and of the Board of Elections (count six). The defendant claims that the evidence before the grand jury is insufficient to establish that he made any false entries or directed that any false entries be made, either in the business records of either the Committee or the Board of Elections, or that he intended to defraud either organization.[FN9] [*9]

The defendant made virtually identical attacks upon the counts of Indictment No. 6435, which charged him with Falsifying Business Records in the First Degree based upon the failure of the January 2002 Report to include as a contribution the $5000 check payable to the Committee which the defendant deposited in his personal account. In a decision on the defendant's omnibus motions, this Court rejected those arguments. See People v. Norman, supra, 2002 WL 2624644. For the reasons more expansively set forth in that decision, those arguments are also rejected here.

These counts of the indictment do not charge the defendant with "mak[ing] or caus[ing] a false entry," as prohibited by Penal Law § 175.05(1), but rather with "prevent[ing] the making of a true entry and caus[ing] the omission thereof," as prohibited by Penal Law § 175.05(4), and the evidence is legally sufficient to support these allegations.

The Committee was required to report contributions made to the defendant's campaign, Election Law § 14-102(1), and from this obligation, the grand jury could infer that the Committee would prepare and retain copies of the statements it filed with the Board.[FN10] Thus, the grand jury could find that by concealing the Association's in-kind contributions from the treasurer, the defendant intentionally prevented the treasurer from making a true entry concerning the check in the records of both the Committee and the Board, and intentionally caused the omission of such an entry in those records. Moreover, the evidence is sufficient to establish that the defendant solicited and received in-kind contributions to the defendant's 2000 primary campaign from the Association that exceeded the $3100 limitation for such contributions by an individual that year and indeed exceeded the combined $6200 limitation for contributions by an individual to the both the primary and general election campaign. Similarly, the evidence is sufficient to establish that the defendant solicited in-kind contributions from the Association that would have exceeded the $3100 limitation on contributions by an individual to the defendant's 2002 primary campaign, although the in-kind contribution actually received from the Association that year, $2700, did not.

Since it is a crime indeed a felony for a person "acting on behalf of a candidate or political committee [to] knowingly and willfully ... solicit any person to make [expenditures in connection with the nomination for election or election of any candidate] for the purpose of evading the contribution limitations of [article 14 of the Election Law]," Election Law § 14-126(4), this evidence is also sufficient to establish that the defendant concealed these solicitations and contributions from the treasurer and thus prevented the making of a true entry, and caused the omission of a true entry in the records of both the Committee and the Board of Elections with [*10]"intent to defraud includ[ing] an intent to commit another crime or to aid or conceal the commission thereof." Penal Law § 175.10. However, a "business record" is defined by Penal Law § 175.00(2) as a "writing or article ... kept or maintained by an enterprise for the purpose of evidencing or reflecting its condition or activity," and thus the crime of Falsifying Business Records in the First Degree is committed only when the records falsified reflect the condition of activity of the "enterprise" maintaining those records.[FN11] See People v. Bel Air Equip. Corp., 46 AD2d 773 (2d Dept. 1974), aff'd on other grounds, 39 NY2d 48 (1976); People v. Papatonis, supra. In this case, for the reasons set forth in the decision on the defendant's omnibus motion in connection with Indictment 6435/03, People v. Norman, 2002 WL 2624644, the reports, whether in the hands of the Committee or the Board, reflected the activity of the Committee, and not of the Board, and thus were part of the "business records" of the Committee, but not of the Board. For this reason, the evidence before the grand jury is legally sufficient to support the third and fifth counts of the indictment, but not the fourth and sixth, which must be dismissed.

Finally, the defendant asserts that the evidence before the grand jury is insufficient to support the seventh, eighth, ninth and tenth counts of the indictment, which charge him with violations of various provisions of the Election Law, because it fails to establish that the defendant "willfully caused the re-election committee to violate any applicable laws."

Counts seven and eight concern the in-kind contributions made by the Association in 2002, and the challenges to the sufficiency of the evidence for those counts are rejected for the reasons comparable challenges were rejected to the counts charging the same Election Law violations in Indictment 6435/03. See People v. Norman, supra, 2002 WL 2624644.

Count seven alleges that the defendant violated Election Law §14-122, which provides in pertinent part of subdivision one, that "[w]hoever, acting as an officer, member or agent of a political committee ... receives any ... contribution ... shall, ... within fourteen days after any such receipt, ... give to the treasurer of such committee, or to such candidate if an agent authorized by him a detailed account of the same ...." The evidence is legally sufficient to establish that the defendant himself, acting as an "agent" of the Committee, solicited the $2700 check the Association made to Branford Communications for the work Branford did for the defendant's re-election campaign that year, and failed to give any account, let alone a "detailed" one, to the treasurer of the Committee.

Count eight alleges that the defendant violated Election Law § 14-102, which provides in pertinent part of subdivision one that, "[t]he treasurer of every political committee which ... receives ... any money or other valuable thing ... shall file statements ..., at the times prescribed by this article setting forth all the ... contributions to ... the committee ...." Although § 14-102 places the obligation of reporting contributions on the treasurer and not the candidate, the defendant may be found liable for this crime as an accomplice pursuant to Penal Law § 20.00, and, pursuant to Penal Law § [*11]20.05(1), it is no defense that the treasurer had no knowledge of the contribution.[FN12]

The Election Law violations charged in these counts are criminal only when they are committed "knowingly and willfully." Election Law § 14-126(2). The evidence that the defendant simultaneously solicited not only the $2700 in-kind contribution the Association made when the Association paid one of the two Branford vouchers, but another in-kind contribution in the same amount; that the total thus solicited exceeded the $3100 limitation on contributions an individual contributor could make to the defendant's primary campaign; that the defendant specifically asked that the invoices he asked the Association to pay be divided into two, each below the limit; that he specifically asked that the invoices not indicate to whom they were addressed; and that he failed to inform the treasurer of the Committee about the payment that Branford did make, is legally sufficient to establish that the defendant engaged in the conduct that violated these two provisions of the Election Law "knowingly and willfully."

Counts nine and ten charge the defendant with violation of Election Law § 14-126(4) in connection with the in-kind contributions in 2000 (count nine) and 2002 (count ten). As previously indicated, this crime is committed, inter alia, by a person who, "acting on behalf of a candidate or political committee, knowingly and willfully ... solicit[s] any person to make [expenditures in connection with the nomination for election or election of any candidate] for the purpose of evading the contribution limitations of [the Election Law]."

Given the evidence that the defendant solicited in-kind contributions from the Association in each year that exceeded the $3100 limitation on contributions the Association could make under the Election Law, that he solicited those contributions in a surreptitious manner and hid the contributions that resulted from those solicitations from the treasurer of the Committee, there was legally sufficient evidence before the grand jury to establish that the defendant committed these violations of Election Law § 14-126(4), and that he did so knowingly and willfully and for the purpose of evading the applicable contribution limitation.

THE PROPRIETY OF THE GRAND JURY PROCEEDINGS

The defendant moves to dismiss the indictment based on a variety of claims he makes concerning the integrity of the grand jury proceedings. All of the defendant's objections to the method and manner of the grand jury proceedings, and to the instructions given to the grand jury, are without merit. Specifically, the minutes of the proceedings reveal that a quorum of grand jurors was present when testimony was taken and at the time the Assistant District Attorney instructed the grand jury on the law, and that it was instructed that only those grand jurors who had heard all of the evidence could participate in voting on the matter. The legal instructions given to the grand jury were not defective within the meaning of CPL § 210.35.[FN13] The indictment was returned by the grand [*12]jury after its term had been lawfully extended by court order.

DEFECTIVE ALLEGATIONS IN THE INDICTMENT

The defendant also claims that each count of the indictment itself is defective because its factual allegations are legally insufficient. For the reasons discussed below, the factual allegations in counts eight and nine are legally insufficient, but the factual allegations in all the remaining counts of the indictment meet the statutory requirements set forth above.

Each count of an indictment must contain "[a] plain and concise factual statement ... which, without allegations of an evidentiary nature, ... asserts facts supporting every element of the offense charged and the defendant's ... commission thereof with sufficient precision to clearly apprise the defendant ... of the conduct which is the subject of the accusation." CPL § 200.50(7)(a). Each count must also contain "[a] statement ... that the offense charged therein was committed on, or on or about, a designated date, or during a designated period of time." CPL § 200.50(6). The purposes for these requirements are to provide the defendant "with fair notice of the charges against him, and of the manner, time and place of the conduct underlying the accusations, so as to enable him to answer to the charges and to prepare an adequate defense;" People v Keindl, 68 NY2d 410, 417 (1986); "to provide some means of ensuring that the crime for which the defendant is brought to trial is in fact one for which he was indicted by the Grand Jury, rather than some alternative seized upon by the prosecution in light of subsequently discovered evidence ...." People v. Iannone, 45 NY2d 589, 594 (1978); and "to enable the defendant, once convicted, to raise the constitutional bar of double jeopardy against subsequent prosecutions for the same offense." People v. Keindl, 68 NY2d at 416.

Count one charges him with the commission of Offering a False Instrument for Filing, and alleges that the defendant, on or about and between July 1, 2000, and January 23, 2001, knowing that the January 2001 Report contained a false statement and false information, presented it to the Board of Elections "with intent to defraud the state and any ... public authority ... of the State," and "with the knowledge and belief that it would be filed with, registered and recorded in and otherwise become a part of the records of" the Board. Similarly, count two charges the defendant with the same crime and alleges that the defendant on or about and between August 20, 2002, and January 27, 2003, acting with that intent, knowledge and belief, presented the January 2003 Report to the Board of Elections. The defendant argues that each of these counts is defective because it alleges that the crime charged was committed over too broad a time span, and because neither of these counts specifies the false entry, statement or information.

Count three charges the defendant with the crime of Falsifying Business Records in the First [*13]Degree, and it alleges that, on or about and between July 1, 2000, and January 23, 2001, with the intent to defraud and to commit another crime, and "to aid and conceal the commission thereof, [he] prevented the making of a true entry and caused the omission thereof in the business records" of the Committee. Similarly, count five charges the defendant with the crime of Falsifying Business Records in the First Degree, and it alleges that, on or about and between August 20, 2002, and January 27, 2003, with the intent to defraud and to commit another crime, and "to aid and conceal the commission thereof, [he] prevented the making of a true entry and caused the omission thereof in the business records" of the Committee. The defendant argues that each of these counts is defective because it alleges that the crime charged was committed over too broad a time span, and because neither of these counts specifies the person or entity the defendant allegedly intended to defraud, or what the false entry (actually, given the form of the crime charged, the omitted entry) in the business records was.

For the reasons more comprehensively set forth in People v. Norman, supra, 2002 WL 2624644, where virtually identical challenges were made to similar counts, the defendant's challenge to the sufficiency of these four counts is rejected. Subdivision 6 of CPL 200.50 "neither requires the exact date and time, nor does it restrict the length of the designated period of time which may be so stated." People v. Keindl, 68 NY2d at 417 (1986); citing People v Morris, 61 NY2d 290, 294 (1984). "When time is not an essential element of an offense, the indictment, as supplemented by a bill of particulars, may allege the time in approximate terms." People v Watt, 81 NY2d 772, 774 (1998); People v. O'Connor, 240 AD2d 764-765 (2d Dept. 1997). See also People v. Morris, 61 NY2d at 295; People v. Iannone, 45 NY2d 589 (1978). The three purposes for requiring that a count specify when an offense was committed are each satisfied by the time periods specified in these counts.

According to the evidence before the grand jury, the time frame alleged in the first and third counts "on or about and between July 1, 2000, and January 23, 2001" begins approximately when the defendant first asked the executive director of the Association to pay some of his campaign expenses that year, and it ends when the January 2001 Report was filed. Similarly, according to the evidence before the grand jury, the time frame alleged in the second and fifth counts "on or about and between August 20, 2002, and January 27, 2003" begins approximately when the defendant asked the executive director of the Association to pay some of his campaign expenses that year, and it ends when the January 2003 Report was filed. Admittedly, the third and fifth counts might have limited the time period in which the defendant allegedly falsified the records of Committee to the fourteen day period in which he had to report the contributions after he allegedly received them, or they, along with the first and second counts, might have limited the time period in which he allegedly falsified the Committee's records and offered false instruments for filing to "on or about January 23, 2001," and "on or about January 27, 2003," respectively, when the reports were sent to the Board of Elections. However, these counts were apparently drafted on a different theory that throughout the longer time period specified, the defendant had the continuing opportunity to, but never did, report the in-kind contributions to the treasurer so that she could include them in the January Reports. Whichever approach may be more logical, the People's gives notice to the defendant adequate to the purposes for which notice is required.

The defendant's complaints that counts one and two fail to specify the false information or statements included in the January Reports, and that counts three and five fail to allege who or what [*14]entity the defendant allegedly intended to defraud and the content of the omissions he allegedly caused in the business records of the Committee, are also without merit. The Court of Appeals has consistently held that allegations in an indictment that track the language of the statute defining the offense charged are legally sufficient. People v. Levin, 57 NY2d 1008 (1982); People v. Iannone, supra, see also People v. Duffy, 231 AD2d 586 (2d Dept. 1996). Because all four counts track the language of the statutes defining the crimes they charge, each is legally sufficient. Moreover, the discovery the defendant has received and the People's responses in the Bill of Particulars have provided him with the information he complains is lacking in these counts, and with sufficient information to prepare and present a defense. People v. Morris, supra; People v. Iannone, supra. [FN14]

The defendant contends that the seventh and eighth counts of the indictment, which charge him with "the crime[s]" of violation of Election Law §§12-122 and 14-102, respectively, are defective in a variety of respects. Although all but one of his complaints about these counts is without merit, for the reasons set forth more expansively in People v. Norman, supra, 2002 WL 2624644, his claim that they are defective because they fail to allege that he committed these violations "knowingly and willfully" is correct, and the absence of these allegations requires that these counts be dismissed.

Subdivision two of Election Law § 14-126 makes violation of the two provisions specifically referred to in these counts criminal only when committed "knowingly and willfully," a mens rea not required by the Election Law provisions referenced in the counts, and the counts themselves neither allege that he acted with this mens rea, nor make reference to Election Law § 14-126 by name or number. For the defendant to discover that the basis for charging him with a crime is Election Law § 14-126 and, more importantly, to learn from reading Election Law § 14-126(2) that he is charged with engaging in the conduct "knowingly and willfully" he must look elsewhere. These counts, however, give him no indication of where to look, whether in the Election Law, the Penal Law, or elsewhere.

Finally, it is not appropriate to accept the argument the People make in their Affirmation in Opposition to the defendant's omnibus motion, based on dictum in People v. Cohen, 52 NY2d 584 (1981), that these counts are not defective because it can be inferred from an analysis of the indictment as a whole that the defendant is charged with violating the Election Law sections specified in counts 7 and 8 knowingly and willfully. The defendant has made a motion to dismiss the counts before trial, specifically challenging the sufficiency of the factual allegations in these counts. The People have not moved to amend the indictment, a motion which could not, in any case succeed, since an indictment may not be amended to cure the "[l]egal insufficiency of the factual allegations." CPL § 200.70(2)(b). These counts make no reference by name, number or otherwise to the statute which would inform the defendant of the missing allegation, a reference which might [*15]arguably permit the granting of a motion to amend despite the limitation in CPL § 200.70(2)(b). Finally, no court has ever applied the dictum in Cohen to a count which includes no such reference.[FN15]

The defendant also challenges the sufficiency of the allegations in the ninth and tenth counts, which charge the defendant with violation of Election Law § 126(4), and allege, respectively, that "on or about and between July 1, 2000, and September 9, 2000," and "on or about and between August 20, 2002, and September 19, 2002," the defendant "did knowingly and willfully solicit any person to make expenditures in connection with the nomination for election or election of any candidate for the purpose of evading the contributions limitations of this article, as defined by Article 14 of the Election [Law]." The defendant claims that these counts are defective because they do not identify the campaign contribution solicited, allege the statutory limitations applicable each year, identify the candidate or the office the candidate was seeking, allege and incorporate by reference the specific Election Law section violated, and incorporate by reference the contribution limitations addressed in Election Law § 14-114(1)(b).

These claims are without merit. The counts need not identify the specific contributions solicited, the contribution limitations applicable in each year, or the candidate or the office the candidate was seeking; it is enough that the allegations in these counts track the language of Election Law § 126(4). People v. Levin, supra; People v. Iannone, supra, People v. Duffy, supra. Moreover, as with the other remaining counts of the indictment, the discovery the defendant has received and the People's responses in the Bill of Particulars have provided him with the information he complains is lacking in these counts, and with sufficient information to prepare and present a defense. People v. Morris, supra; People v. Iannone, supra.[FN16] The defendant's complaint that these counts do not "allege and incorporate by reference the specific Election Law section violated" is simply inaccurate. Each count not only includes allegations tracking the relevant language of Election Law § 126(4), but also makes specific reference to that provision by section and subsection number. The defendant's final complaint, that the counts do not "incorporate by reference the contribution limitations addressed in Election Law § 14-114(1)(b)," is similarly unavailing, since explicit incorporation of that provision's language or section number in unnecessary. In People v. Motley, 69 NY2d 870 (1987), two defendants each pled guilty to attempted Promoting Prison Contraband [*16]in the First Degree in satisfaction of an indictment that charged them with the completed crime. Upholding the defendants' convictions, the Court of Appeals, citing People v. Cohen, 52 NY2d at 586, held that although "the statute defining the crime charged ... d[id] not define dangerous contraband," the reference in the indictment to the statute defining the crime charged constituted allegations of not only "the elements of the crime," but also "their statutory definitions." People v. Motley, 69 NY2d at 872. Similarly, the provisions concerning contribution limitations set forth in Election Law § 14-114(1)(b) are implicitly incorporated by the reference in each count to Election Law § 14-126(4), and more specifically by the allegations that those limitations are defined in Article 14.[FN17]

CONSTITUTIONALITY OF ELECTION LAW § 14-126(4)

In his Reply and Supplemental Affirmation, the defendant claims that Election Law § 14-126(4) is unconstitutional, both on its face and as applied in this case. Specifically, he asserts that the statute is void for vagueness because it fails to give notice of the precise limitations that apply to an individual contributor, and that Election Law § 14-114, whose provisions concerning limitations on contributions by an individual are incorporated by reference in § 14-126(4), unconstitutionally delegates to the Board of Elections the authority to set those limitations.

Statutes are presumed to be constitutional, and one who challenges a statute's constitutionality bears a heavy burden. City of NY v. State of NY, 76 NY2d 479, 485 (1990). The burden is particularly heavy when the court in which such a challenge is made is a trial court. "'A statute should not ordinarily be set aside as unconstitutional by a court of original jurisdiction unless such conclusion is inescapable. Courts of first instance should not exercise transcendent power of declaring an act of the Legislature unconstitutional except in rare cases involving life and liberty, and where the invalidity of the act is apparent on its face' (see McKinney's Cons Laws of NY, Book 1, Statutes, §150, pp 312-313, and the cases cited thereat)." Comiskey v. Arlen, 55 AD2d 304, 307 (2d Dept. 1976), aff'd 43 NY2d 696 (1977). No such demonstration has been made here.

Election Law § 14-114 establishes one formula for determining the maximum contribution an individual can make to a candidate,[FN18] sets forth a second formula by which the Board of Elections [*17]is to adjust that amount to reflect changes in the cost of living index every four years,[FN19] and requires the Board of Elections, "not later than the first day of February in each such year, [to] issue a regulation publishing the amount of such contribution limit," which, as adjusted, "shall be the contribution limit in effect for any election held before the next such adjustment." Election Law § 14-114(1)(c). Pursuant to Election Law § 14-114(1)(c), and in accordance with its formulas, the Board of Elections promulgated a regulation which announced that the limit on the contributions an individual could make to a candidate for the State Assembly, either in a primary election or a general election, was $3100. Rules and Regulations of the Board of Elections, § 6214.0.

Given the precision of the formulas in Election Law § 14-114(1)(c), and the announcement of a specific monetary limit in the Rules and Regulations of the Board of Elections, there is no vagueness in the language of Election Law § 14-126(4), which makes it a felony to solicit a person to make expenditures in connection with the election of any candidate that exceed the contribution limitations. See People v. Coe, 131 Misc 2d 807, 811 (Sup. Ct. NY Co. 1986), aff'd without opinion, 126 AD2d 436 (1st Dept. 1987), aff'd 71 NY2d 852 (1988) ("The legislature, by Public Health Law 12-b, made it explicit that any wilful Public Health Law violation was a crime. The rules promulgated under the Public Health Law are, again, quite explicit. Any further explication via agency regulations only goes to describe the prohibited acts in even greater detail. The statute under which defendant was indicted then, is not at all vague and certainly provided defendant reasonable notice of what acts she legally could or could not perform"). See also People v. Einhorn, 75 Misc 2d 183 (Sup. Ct. NY Co. 1973) (legislative authorization of Commissioner of Health to add or subtract from the list of controlled drugs did not render crime of Criminally Selling a Dangerous Drug unconstitutionally vague). This is particularly so because § 14-114(1)(c) makes a solicitation in violation of those limitations criminal only when the solicitation is "knowing and willful" and made "for the purpose of evading" those limitations. Silvian v. Shang, 70 AD2d 704, 705 (3d Dept. 1979) ("The statutes in question require a showing of intentional violation before the commission of a crime is established. Under these statutes, the plaintiffs are protected by every right afforded to any person charged with a crime in New York since a violation plus intention must be shown").

Moreover, the Legislature did not unconstitutionally delegate to the Board of Elections the duty to calculate the contribution limitations. See People v. Allied Health Care Products, Inc., 174 AD2d 246, 250 (3d Dept. 1992), rev'd on other grounds, 81 NY2d 27 (1993) ("[d]efining a crime in terms of a willful violation of a duly promulgated regulation is clearly permissible under [*18]decisional law"); Silvian v. Shang, supra (by providing that any person who intentionally violates the regulations of the Department of Social Services is guilty of a misdemeanor, the Legislature did not delegate its power to define crimes); People v. Malmud, 4 AD2d 86, 91 (2d Dept. 1957) (when Legislature made violation of rule of Triborough Bridge and Tunnel Authority a misdemeanor, "[i]t [was] that statute, enacted by the Legislature, and not a rule adopted by the Authority, which define[d] the substantive criminal offense ..."); see also People v. Coe, supra; People v. Hernandez, 85 Misc 2d 26 (App. Term 1975); compare People v. Ryan, 267 NY 133 (1935) (Legislature impermissibly delegated power to define criminal offenses by providing that violation of rule of state board shall be misdemeanor "if such rule so provides").

Of course, when an administrative body promulgates a regulation, it must have the authority to do so, and it must be given "reasonable safeguards and standards" by which to exercise that authority. Matter of Levine v. Whalen, 39 NY2d 510, 515 (1976). In People v. Malmud, 4 AD2d at 92, the Second Department upheld the defendant's conviction for violating a regulation of the Authority, and found that the power to promulgate that regulation was solidly based on "the power granted to the Authority by clear implication to adopt rules regulating traffic on it projects, ... subject to the condition, just as clearly implied, that it may adopt only such rules as upon reasonable grounds it may deem necessary and proper to provide for the safety and convenience of those who use them, and the protection of its facilities from unwarranted damage." See also People v. Einaugler, 208 AD2d 946, 948 (2d Dept. 1994); People v. Coe, supra; People v. Hernandez, supra. Here the Legislature prescribed precisely and directly, rather than generally and by implication, how the contribution limits were to be calculated, and thus, ipso facto, did not impermissibly delegate its function to the Board of Elections. See People v. Einhorn, supra (legislative authorization of Commissioner of Health to add or subtract from the list of controlled drugs for purposes of crime of Criminally Selling a Dangerous Drug was not illegal delegation of legislative power because the authority was delegated within strict guidelines and standards).

For these reasons, Election Law § 14-114 is not unconstitutional, and the defendant's motion to dismiss the ninth and tenth counts on this ground is denied.

DISMISSAL IN THE INTEREST OF JUSTICE

As he did in connection with Indictment No. 5617/03, see People v. Norman, ___ Misc 2d ___ (Sup. Ct. Kings Co. 2004), 2004 WL 1964916, and in connection with Indictment No. 6435/03, see People v. Norman, 2002 WL 2624644 (Sup. Ct. Kings Co. 2004), the defendant also moves for dismissal of this indictment in the interest of justice pursuant to CPL §§210.20(1)(i) and 210.40. In support of his motion, he alleges, inter alia, that he is being prosecuted for "non-willful" violations of the Election Law; that, although the Committee did not report the contributions, the third party who made them did; that the prosecution is "beyond the clear dictates" of the Election Law and "novel;" that the crimes alleged were victimless and harmed no one; that the defendant is charged with "guilt by association;" that the defendant's history and character are stellar; that the Board of Elections has brought no complaint and or enforcement action of its own; and that the defendant is a victim of selective and overly zealous prosecution.

After reviewing the facts of the case, and evaluating them in light of the criteria set forth in CPL § 210.40(1)(a)-(j), both "individually and collectively," People v. Clayton, 41 AD2d 204, 208 (2d Dept. 1973), this Court finds no compelling "factor or circumstance" requiring dismissal of the [*19]indictment in the interests of justice. CPL § 210.40(1); see People v. Guzman, 168 AD2d 154, 156 (2d Dept. 1991); see also People v. Belge, 41 NY2d 60, 62-63 (1976)(Fuchsberg, J., concurring). Accordingly, the defendant's motion to dismiss the indictment in the interests of justice is denied.

The indictment alleges that the defendant committed the crimes with which he is charged knowingly, intentionally and willfully. These crimes are not victimless, since the Committee, which is charged with reporting contributions to the defendant's campaigns, and the Board of Elections, which is charged with monitoring compliance with the Election Law, are victims of the defendant's conduct, if the charges are proven. Whether a victim of a crime has made a complaint is of no great relevance when the defendant has concealed his conduct from the people or organizations who might have lodged one. In any event, the true gravity of these offenses and the harm they allegedly produced lie not in the injury to a particular victim, but in the impairment of public trust in the election process. Accordingly, the nature of the crimes charged militate against, rather than in favor of, dismissal. CPL § 210.40(1)(a),(b).

By voting this indictment, the grand jury necessarily rejected the defendant's claim that his conduct was not willful, a rejection supported by the sufficiency of the evidence before the grand jury. Similarly the defendant's claim that he is charged with "guilt by association" is contradicted by the grand jury evidence, which indicates that he himself caused the Association to make the in-kind contributions that are the subject of the indictment and that he himself concealed from the treasurer of the Committee and the Board of Elections. His claims to the contrary are matters appropriately presented to a jury at trial. CPL § 210.40(1)(c).

As in connection with the decisions on the motions the defendant made to dismiss Indictment Nos. 5617/03 and 6435/03, neither the defendant's accomplishments nor his contributions to his constituents and to society justify dismissal of charges that he abused the trust placed in him by the public, CPL § 210.40(1)(d), particularly where this is only one of four indictments charging the defendant with such abuse.

While prosecutions for these crimes may be infrequent, the theory of this prosecution cannot fairly be called novel or overly zealous, since it falls four-square within the language of the statutes defining the crimes with which the defendant is charged. Thus, this factor does not compel dismissal on the ground of unfairness to the defendant. CPL § 210.40(1)(e). As with the other two indictments previously considered, the prosecution of a public official for intentionally and willfully violating the Election Laws and concealing those violations from the Board of Elections, can serve an important purpose, CPL § 210.40(1)(f), and dismissal of the indictment under these circumstances would seriously undermine "the confidence of the public in the criminal justice system," CPL § 210.40(1)(g), particularly because the defendant remains in his official position and such conduct could be repeated. CPL § 210.40(1)(h). Finally, the defendant has failed to present "any other relevant fact indicating that a judgment of conviction would serve no useful purpose." CPL § 210.40(1)(j).

DISCOVERY AND BILL OF PARTICULARS

The defendant moves for an order directing the People to respond to his Demands for a Bill of Particulars and for Discovery. The People have adequately responded to the defendant's Demand [*20]for a Bill of Particulars in their answer.[FN20] The prosecution's response to the defendant's Demand for Discovery is also adequate, except that the People are to set forth in full detail its agreement with the treasurer of the Committee, as disclosed in the grand jury during her testimony, and in any writing, should one exist, and any agreement with any other witnesses they intend to call at trial.

If the defendant believes that there is some other discovery to which he is entitled under CPL § 240.20 and which the People have failed to provide, he may renew this motion at a later date.

Prior to trial, the People are to inform the defendant and the trial court what, if any, uncharged criminal, vicious or immoral conduct they will seek to introduce into evidence for a determination of its admissibility. A Sandoval and/or Ventimiglia hearing will be conducted immediately prior to trial.

The People are reminded of their continuing obligation to disclose to the defendant any exculpatory evidence in their possession pursuant to Brady v. Maryland, 373 U.S. 83

(1963), and its progeny, and that they are obligated to provide it to the defendant, if it exists, in a timely manner.

This constitutes the order and decision of the Court.

Dated: December 15, 2004 ______________________ MARTIN MARCUS J.S.C. Footnotes

Footnote 1: In the presentation of this case, William McCann, Special Deputy Counsel for the New York State Board of Elections, gave expert testimony concerning the New York State Election Law and the rules and regulations regarding elections. For purposes of determining whether Mr. McCann's testimony was properly received and limited, and whether the grand jury was properly instructed concerning his testimony, it is unnecessary to provide defense counsel with the relevant minutes. In this presentation, as in the presentation that resulted in the return of Indictment No. 6435/03, Mr. McCann was explicitly qualified as an expert before the grand jury, and the grand jury was properly instructed concerning its consideration of expert testimony. See People v. Norman, 5 Misc 3d 1016(A), 2004 NY Slip Op 51392(U) (Sup. Ct. Kings Co. 2004), compare People v. Norman, 6 Misc 3d 317 (Sup. Ct. Kings Co. 2004). Moreover, as in both presentations, Mr. McCann was unquestionably qualified to offer the opinions elicited from him, the opinions he offered concerned matters beyond the grand jury's ken and that would aid the grand jury in making its determinations, and the testimony he gave was properly limited.

Footnote 2: In the presentation of the evidence leading to Indictment No. 6435/03, the "co-assistant" was identified as the "secretary" or "co-treasurer."

Footnote 3: See Election Law § 14-100(9)(3), which defines the term "contribution" to include "any payment, by any person other than a candidate or a political committee authorized by the candidate, made in connection with the nomination for election or election of any candidate ...."

Footnote 4: For the Assembly election in 2000, the election cycle ran from the day after the election in 1998 to the day of the election in 2000. For the Assembly election in 2002, the election cycle ran from the day after the election in 2000 to the day of the election in 2002.

Footnote 5: M.T. Packaging filled a second order for 15,000 bags, also to the Thurgood Democratic Club, care of Clarence Norman. The invoice for this shipment, totaling $1,350, was paid for by a check drawn on the account of the Committee.

Footnote 6: The prosecutor directed the jury to disregard the witness's original explanation for not sending the check that his office manager had learned in a seminar about a change in the Election Law that limited contributions to one candidate in a single year to $5000 and informed the grand jury that it would hear "a definition from another person regarding the status of the law."

Footnote 7: At one point in his Reply and Supplemental Affirmation, the defendant asserts that the limitation on an individual's contributions to his 2000 primary campaign was in excess of $4,800 and that in 2002 the limitation was "even higher." At another point, he specifies that it was "up to $4,855.55 for each election cycle." In advancing these figures, it appears that the defendant is relying on the fact that in one of the two primary elections, he was also running for the State Committee, to which he says a separate limitation of more than $1700 applied, beyond the limitation applicable to his primary campaign for the Assembly. Although the affirmation reports that the defendant ran for the State Committee in 2002, the People asserted at oral argument that the defendant ran for the State Committee in 2000. Whichever it was, it is unclear why the limitation applicable to an individual's contributions to his campaigns in both years would have exceeded $4800, since the additional $1700 would apply only in the year in which he ran in the primary election both for the Assembly and the State Committee. In any case, the grand jury received no evidence concerning the defendant's candidacy for State Committee in either 2000 or 2002, no evidence of the permissible contributions concerning that candidacy, and, more significantly, no evidence that the in-kind contributions the Association allegedly made, or that the defendant allegedly solicited, were for any campaign other than for the defendant's re-election to the Assembly. Even more decisively, the in-kind contributions the Association allegedly made in 2000, and the in-kind contributions the defendant allegedly solicited from the Association in 2002, exceeded not only the $3100 limitation established in the grand jury, but even the $4855.55 figure cited by the defendant.

Footnote 8: Given the evidence before the grand jury concerning the conduct of the executive director of the Association, a question of fact arises whether, "according to the evidence adduced ..., [he] may reasonably be considered to have participated in: (a) [t]he offense[s] charged; or (b) [a]n offense based upon the same or some of the same facts or conduct which constitute the offense[s] charged." CPL § 60.22(2). Thus, if the executive director testifies at trial, it may be necessary to instruct the jury to determine whether he is an accomplice within the meaning of CPL § 60.22(2), and if so, whether the People have adequately corroborated his testimony. However, grand jury evidence is not legally sufficient to sustain a count charging a defendant with an offense only "when corroboration that would be required, as a matter of law, to sustain a conviction for such offense is absent ...." CPL § 190.65(a). (Emphasis added.) Because the evidence before the grand jury does not establish that the executive director is an accomplice as a matter of law, corroboration of his testimony there was not necessary. In any case, the documentary evidence and the testimony of non-accomplice witnesses before the grand jury are clearly sufficient to corroborate his testimony by "tending to connect the defendant with the commission of [the offenses charged]." CPL § 60.22(1).

Footnote 9: Penal Law §175.10 provides that "[a] person is guilty of falsifying business records in the first degree when he commits the crime of falsifying business records in the second degree, and when his intent to defraud includes an intent to commit another crime or to aid in the commission thereof." A person commits the crime of Falsifying Business Records in the Second Degree when, "with intent to defraud, he ... (4) [p]revents the making of a true entry or causes the omission thereof in the business records of an enterprise." Penal Law §175.05.

Footnote 10: See People v. Papatonis, 243 AD2d 898, 900 (3d Dept. 1997) ("What is complained of here are false answers to questions contained in an employment application submitted to Advance Security which, presumably, Advance Security has kept on file"). Although Election Law §14-122(1) requires the treasurer of a campaign committee to make "detailed account[s]" of any contributions received by any "officer, member or agent" of the committee which "shall be a part of the accounts and files of such treasurer ...," no testimony was elicited before the grand jury that the treasurer kept any such records other than the reports she filed with the Board of Elections, and no such records other than those reports were offered in evidence.

Footnote 11: The defendant does not challenge that either the Committee or the Board of Elections was an "[e]nterprise" within the meaning of Penal Law § 175.00(1), which defines that term, in pertinent part, as "any entity of one or more persons, corporate or otherwise, public or private, engaged in ... political or governmental activity." Each, in any case, is clearly an "enterprise."

Footnote 12: See Penal Law §5.05(2). It is also irrelevant that Election Law § 14-102(1) applies only to conduct of "[t]he treasurer of [a] political committee." See Penal Law § 20.05(3); People v. Brody, 298 NY 352 (1949); People v. Irving, 107 AD2d 944 (3d Dept. 1985).

Footnote 13: As previously indicated, because the executive director of the Association was not an accomplice as a matter of law within the meaning of CPL § 60.22(2), his testimony before the grand jury need not have been corroborated. See footnote 8, supra. For this reason, the grand jury need not have been instructed to consider whether, as a question of fact, he was an accomplice within the meaning of § 60.22(2), and, if the grand jury so found, whether his testimony was corroborated as required by CPL § 60.22(1). Even had such instructions been required, given the substantial corroborating evidence before the grand jury, the failure to give them would not have impaired the integrity of the grand jury proceeding. People v. Foster, 130 AD2d 903, 904 (3d Dept.1987); People v. Rex, 83 AD2d 753, 754 (4th Dept. 1981); see also People v. Vincente, 183 AD2d 940 (3d Dept. 1992); People v. Bomberry, 112 AD2d 118 (4th Dept. 1985).

Footnote 14: That these counts sufficiently apprise the defendant of the conduct with which he is charged is best illustrated by Exhibit D of the defendant's omnibus motion, in which the defendant includes a copy of each and every check by which the Association allegedly made payments on invoices prepared by Branford Communications and M.T. Packaging for work done in connection with the defendant's primary campaigns in 2000 and 2002, that is, the in-kind contributions which the Association allegedly made (or, in one instance, contemplated but did not make) to the Committee, which are the subject matter of all the charges in the indictment.

Footnote 15: Although these counts are dismissed, evidence of their violation is nonetheless relevant in determining whether the crimes charged in the remaining counts were committed. Since Election Law §14-122 requires, inter alia, an agent of a political committee to give a "detailed accounting" of any contribution the agent receives, it is relevant to the allegation in count five that the defendant "prevented the making of a true entry and caused the omission thereof" in the Committee's records. Since Election Law § 14-102 requires the treasurer of a political committee to file with the Board of Elections statements of, inter alia, all contributions its agents receive, it is relevant in establishing the allegation in count two that the defendant caused a written instrument, the January 2003 Report, to be filed with the Board of Elections, knowing it contained a false statement or information. And both are relevant to the allegation in count ten that the defendant "knowingly and willfully" solicited a person to make campaign-related expenditures for the purpose of evading the contribution limitations of Article 14.

Footnote 16: See footnote 14, supra.

Footnote 17: The defendant also claims that counts nine and ten are defective because "there is no reason to believe that the Grand Jury found that the defendant acted 'willfully.'" Whether the evidence before the grand jury is sufficient to support a particular count in an indictment has nothing to do with the sufficiency of the factual allegations made in that count. In any case, for the reasons previously set forth, the evidence underlying each count is legally sufficient to establish that the defendant acted willfully.

Footnote 18: With respect to candidates for elections that are not state-wide, Election Law §14-114(1)(b) provides, in relevant part, that "no contributor may make a contribution to any candidate or political committee and no candidate or political committee may accept any contribution from any contributor, which is in the aggregate amount greater than: ... in the case of any election for a public office, the product of the total number of enrolled voters in the district in the candidate's party excluding voters in inactive status, multiplied by $ .05, however ... in the case of an election or nomination for a member of the assembly [such amount shall be not less than] twenty-five hundred dollars as increased or decreased by the cost of living adjustment described in paragraph c of this subdivision; but in no event shall any such maximum exceed fifty thousand dollars or be less than one thousand dollars ...."

Footnote 19: Specifically, Election Law § 14-114(1)(c) provides that, "[a]t the beginning of each fourth calendar year, commencing in nineteen hundred ninety-five, the state board shall determine the percentage of the difference between the most recent available monthly consumer price index for all urban consumers published by the United States bureau of labor statistics and such consumer price index published for the same month four years previously. The amount of each contribution limit fixed in this subdivision shall be adjusted by the amount of such percentage difference to the closest one hundred dollars by the state board ...."

Footnote 20: The defendant does not demand that the People specify in the Bill of Particulars what statements or information were allegedly false in the January Reports, and what true entries the defendant allegedly prevented or caused to be omitted from the business records of the Committee. Neither does he demand the People specify in the Bill of Particulars what contributions he allegedly received and failed to report to the Committee treasurer, and what expenditures he allegedly solicited in violation of the Election Law. However, as previously indicated, it is obvious from the defendant's motions papers, and in particular from Exhibit D to the defendant's omnibus motion, that he well understands what specific in-kind contributions he is charged with soliciting, receiving and not disclosing to the treasurer of the Committee and in each of the January Reports, what person allegedly made those contributions, on behalf of what entity he allegedly did so, and what expenditures the defendant allegedly solicited and to whom he allegedly made the solicitation.