People v Bonilla (Mark)
Annotate this CaseDecided on September 18, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : MARANO, P.J., IANNACCI and CONNOLLY, JJ.
2013-2198 N CR
The People of the State of New York, Respondent,
against
Mark A. Bonilla, Appellant.
Appeal from a judgment of the District Court of Nassau County, First District (Sharon M.J. Gianelli, J.), rendered October 7, 2013. The judgment convicted defendant, after a nonjury trial, of official misconduct.
ORDERED that the judgment of conviction is affirmed.
Defendant, Mark A. Bonilla, was the Clerk of the Town of Hempstead, Nassau County. He was charged, in a superseding information, with two counts of official misconduct (Penal Law § 195.00 [1]), one count of coercion in the second degree (Penal Law § 135.60 [8]), and one count of attempted petit larceny (Penal Law §§ 110.00, 155.25).
The testimony at a nonjury trial indicated that, on August 16, 2012, a female employee who worked in defendant's executive office filed a sexual harassment claim against defendant with the Town Attorney's office. Among other things, the claim was based on allegations by the female employee that defendant had inappropriately touched her when she had accompanied him to events organized by the Town Clerk's office.
The testimony established that defendant had spoken with a male employee of his executive office, who had been involved in an "on and off" relationship with the female employee. Defendant told the male employee that the female employee was a bad person, and that the male employee should have "something on her" to protect himself. The male employee replied that he had photographs of the female employee, which the evidence indicates were of a compromising nature. Defendant asked for the photographs. Since the male employee did not wish to provide defendant with the photographs, the male employee devised a plan intended to dissuade defendant from pursuing the photographs any further. The male employee would provide defendant with a compact disc that would lead him to believe that the disc contained the photographs of the female employee. However, the disc provided to defendant actually contained a password-protected photograph of a Jeep vehicle instead of the photographs of the female employee.
At a meeting in defendant's office on September 12, 2012, defendant told the male employee that he still wanted the photographs. He stated that if the male employee did not provide the photographs, he would transfer him out of his executive office. Defendant also told the male employee, who was considered a part-time employee, that if he provided the photographs, he "would try to get" the male employee a full-time position. The male employee believed at the time that defendant could fire him. Only later did the male employee learn that defendant could only transfer him out of his executive office to another position within the Town Clerk's office, and that he would earn the same salary. Evidence was adduced at the trial that a [*2]position in defendant's executive office carried prestige and that a part-time employee could only be promoted to full time if he or she was on a specific list.
Several days later, defendant met with the male employee, telling him "that he didn't understand how close" the male employee and female employee were. Defendant "apologized for asking for the photos," and stated that the male employee did not have to give the photographs to him, but if he wanted to, defendant would "still take them."
Following the trial, defendant was found guilty of one count of official misconduct, and not guilty of the three other counts.
On appeal, defendant argues that the superseding information was facially defective with respect to the charge of official misconduct for which he was convicted. Defendant further claims that the District Court erred in permitting evidence of uncharged crimes and prior bad acts regarding defendant's alleged sexual misconduct toward the female employee who had filed the complaint against him, and toward two other female employees. Defendant also contends that the evidence was legally insufficient to support his conviction of official misconduct, and that the verdict of guilt was against the weight of the evidence. Defendant's main argument is that the crime of official misconduct was not completed, because defendant changed his mind about obtaining the photographs from the male employee, and, in fact, he never did acquire them.
To be facially sufficient, an information must contain factual allegations of an evidentiary character supporting or tending to support the offense, and demonstrate reasonable cause to believe that defendant committed the offense charged. Furthermore, the information, together with any supporting depositions, must contain nonhearsay factual allegations "that establish, if true, every element of the offense charged" (People v Alejandro, 70 NY2d 133, 137 [1987]; see CPL 100.15 [3]; 100.40 [1] [b], [c]; People v Suber, 19 NY3d 247, 250-251 [2012]; People v Kalin, 12 NY3d 225, 228-229 [2009]; People v Dumas, 68 NY2d 729, 731 [1986]; People v Qureshi, 45 Misc 3d 126[A], 2014 NY Slip Op 51453[U] [App Term, 9th & 10th Jud Dists 2014]; People v Smart, 43 Misc 3d 131[A], 2014 NY Slip Op 50613[U] [App Term, 2d, 11th & 13th Jud Dists 2014]).
Contrary to defendant's contention, the information contained sufficient factual allegations to support the charge of official misconduct. Penal Law § 195.00 (1) provides that "[a] public servant is guilty of official misconduct when, with intent to obtain a benefit . . . [h]e commits an act relating to his office but constituting an unauthorized exercise of his official functions, knowing that such act is unauthorized."
The official misconduct statute contains two mens rea elements: that a public servant knew that his or her acts were "an unauthorized exercise of . . . official functions," and that the public servant so acted with the "intent to obtain a benefit or deprive another person of a benefit" (see People v Feerick, 93 NY2d 433, 446 [1999], quoting Penal Law § 195.00 [1]). "Verbal expressions constitute acts just as do physical movements" (People v Perlman, 121 AD2d 765, 766 [1986]). Furthermore, a "benefit" is not limited to a financial advantage; it "can encompass political or other types of advantage" (People v Feerick, 93 NY2d at 447). The Penal Law defines a benefit as "any gain or advantage to the beneficiary and includes any gain or advantage to a third person pursuant to the desire or consent of the beneficiary" (Penal Law § 10.00 [17]).
Here, the factual part of the information, with respect to the count of official misconduct upon which defendant was convicted, alleges that, on September 12, 2012, defendant met with the male employee in his office regarding the employee's failure to comply with defendant's request to provide him with the photographs of the female employee who had filed the sexual harassment charge against him. Defendant told the male employee that if his request was not complied with, "he would question [his] loyalty" and transfer the male employee "out of the Town Clerk's Office." Additionally, defendant told the male employee that, if he complied with defendant's request, he would promote the male employee "to full time employment." Thus, the information sufficiently alleged that defendant, with a venal purpose, committed acts that were not authorized, and which defendant knew were not authorized.
The supporting depositions sufficiently alleged that defendant intended to obtain a "benefit." The supporting depositions alleged that defendant told an employee that the female [*3]employee who filed the complaint "could ruin his career because of false accusations." Defendant "was also worried about [the female employee] filing a claim against the Town of Hempstead." The male employee's supporting deposition alleged that defendant told him that the female employee who filed the complaint was not a good person, that she could not be trusted, and that he should make sure that he had "stuff on her just in case." Thus, there were sufficient allegations that defendant had the intent to obtain a benefit—-an advantage regarding the female employee's sexual harassment claim—-by, after learning that the male employee had compromising photographs of the female employee, requesting the photographs, which would benefit the defense of the sexual harassment claim.
Defendant's contention that the District Court erred in admitting evidence of uncharged acts of sexual misconduct allegedly committed by defendant is without merit. The evidence was admissible to develop the necessary background information on the nature of the relationship between defendant and his employees, and to place the charged conduct in context (see People v Dorm, 12 NY3d 16, 19 [2009]; People v Leeson, 12 NY3d 823, 826-827 [2009]; People v Shofkom, 63 AD3d 1286, 1287-1288 [2009]). Moreover, the testimony of two female employees, other than the female employee who charged defendant with sexual harassment, did not consist of alleged sexual misconduct. In any event, this case was tried before the court without a jury. A judge is capable of separating irrelevant and prejudicial evidence from probative evidence (see People v Moreno, 70 NY2d 403, 406 [1987]; People v Small, 79 AD3d 1807, 1808 [2010]; People v Wise, 46 AD3d 1397, 1399 [2007]; People v Cobb, 294 AD2d 199, 200 [2002])
Defendant's legal sufficiency claim with regard to whether he completed the crime of official misconduct because he changed his mind about obtaining the photographs is unpreserved for appellate review. Defendant's motion to dismiss at the close of the evidence did not address that claim (see CPL 470.05 [2]; People v Hawkins, 11 NY3d 484, 491-493 [2008]). In any event, viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620, 621 [1983]), we find that it was legally sufficient to establish defendant's guilt, beyond a reasonable doubt, of official misconduct. Contrary to defendant's contention, his mere threat to remove the male employee from his position, which carried prestige, if he failed to provide defendant with the photographs, or to attempt to make his position full time as a reward if he provided the photographs, constituted the completed crime of official misconduct (Penal Law § 195.00 [1]; see People v Connolly, 63 AD3d 1703, 1703-1704 [2009]). Furthermore, defendant's guilt was established by the evidence that a part-time employee could only be promoted to full time if he or she were on a specific list.
Consequently, defendant's conviction of official misconduct was supported by legally sufficient evidence.
In exercising our factual review power (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342, 348-349 [2007]), we accord great deference to the opportunity of the finder of fact to view the witnesses, hear their testimony, observe their demeanor, and assess their credibility (see People v Romero, 7 NY3d 633, 645 [2006]; People v Mateo, 2 NY3d 383, 410 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]; People v Zephyrin, 52 AD3d 543 [2008]). We must weigh "the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony" (People v Bleakley, 69 NY2d at 495 [internal quotation marks and citation omitted]), and determine whether an acquittal would not have been unreasonable based upon the evidence and whether the finder of fact failed to accord the evidence the weight it should have been accorded (id.; see People v Danielson, 9 NY3d at 348). In this case, an acquittal would not have been unreasonable. However, after weighing the relative probative force of the conflicting testimony and the relative strength of the conflicting inferences that may be drawn therefrom, we find that defendant's acts in connection with his request for photographs of the female employee who had accused him of sexual harassment were unauthorized, that defendant knew his acts were unauthorized, and that he intended to obtain an advantage in the defense of the sexual harassment claim. Consequently, the verdict of guilt was not against the weight of the evidence.
Accordingly, the judgment of conviction is affirmed.
[*4]Marano, P.J., Iannacci and Connolly, JJ., concur.
Decision Date: September 18, 2015
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