Nassau County District Attorney's Office Motion to Uphold Indictment
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Transcript of Nassau County District Attorney's Office Motion to Uphold Indictment
SUPREME COURT OF THE STATE OF NEW YORKNASSAU COUNTY: CRIMINAL TERM------------------------------------------------------------------------XTHE PEOPLE OF THE STATE OF NEW YORK, :
: : AFFIRMATION
: IN OPPOSITION: TO OMNIBUS
-against- : MOTIONS:
WILLIAM FLANAGAN, JOHN HUNTER :& ALAN SHARPE, : Nassau County
: Indictment No. 338N12 Defendants. :------------------------------------------------------------------------X
STEPHEN ANTIGNANI, an attorney admitted to practice law in the State of
New York, affirms the following statements to be true under the penalty of perjury:
1. I am an Assistant District Attorney, of counsel to Kathleen M. Rice, the District
Attorney of Nassau County. I am submitting this affirmation in opposition to defendants’
motions to release Grand Jury minutes, to inspect the Grand Jury minutes and reduce or dismiss
the indictment, to sever the defendants from being tried jointly, and for Sandoval hearings. I
make the statements in this affirmation upon information and belief, based on my review of the
Grand Jury minutes, and the records and files of the Nassau County District Attorney’s Office.
2. On or around May 19, 2009, an administrator from JFK High School in Bellmore
reported a theft of electronic equipment from the school. During that spring, there had been a
number of thefts from the high school, and, with this newest theft, nearly $11,000.00 worth of
equipment had been stolen. In her initial report to a uniformed officer from the Nassau County
Police Department (“NCPD”) 7th Precinct, the school principal named a wealthy and well-
connected student as the suspect in this most recent theft. This student was also an employee of
the Nassau County Police Department Ambulance Unit and the son of Gary Parker, a NCPD
benefactor. The principal stated that she wanted the perpetrator of the crime arrested and also
signed a statement to that effect.
3. Following the principal’s initial report, the matter was referred to the 7 th Precinct
Detective Squad. The Commanding Officer of the 7th Precinct Detective Squad referred the
matter to the NCPD Internal Affairs Unit (“IAU”) because the suspect was a department
employee. Within a day, defendant Hunter, a NCPD chief who was not in the detective squad
chain of command, called the squad commander to let her know that IAU would not be
investigating the matter despite the suspect’s employment with the department. At the time,
defendant Hunter had no supervisory authority over either the squad or IAU, but he had a long-
standing friendship with the student’s father, and Hunter’s personal interest and involvement in
this type of felony investigation seemed unusual. By his words and actions, defendant Hunter
communicated to the Commanding Officer that he preferred that this well-connected teen not be
arrested for the thefts.
4. Following defendant Hunter’s phone call, the squad commander assigned an
unindicted co-conspirator – a detective who had previously dealt with the school principal – to
handle the case. To satisfy defendant Hunter, the squad commander, defendant Sharpe, and this
newly assigned detective decided that it would be helpful to have the school principal agree to
withdraw any criminal charges in writing. On or about May 21, 2009, the unindicted co-
conspirator interviewed the principal and, during the interview, the principal steadfastly
maintained that she wanted the department to proceed with its investigation against the student.
Because of the principal’s stated position, the unindicted co-conspirator decided not to broach
the subject of withdrawing the criminal complaint against the student.
5. On May 22, 2009, defendant Sharpe followed defendant Hunter’s instruction and
invited Parker into the precinct to discuss his son’s situation. During this meeting, defendant
Sharpe showed Parker stolen property that had been turned in to a different precinct by the son’s
friend several days earlier. Defendant Sharpe also gave Parker his business card and personal
cell phone number and said that Parker could use the personal cell phone number at any time.
Defendant Sharpe did not record Parker’s statement to him in any manner, even though the
statement included an admission that his son had stolen the school equipment.
6. Following his meeting with defendant Sharpe, Parker met with the school
principal. Parker raised the prospect of the principal agreeing to withdraw the criminal
complaint against Parker’s son if Parker were able to get all of the stolen property returned to
the school. The principal declined the proposal because she had never afforded that opportunity
to any other parent. After Parker left the precinct to speak to the principal, defendant Sharpe
called him several times.
7. On May 23, 2009, defendant Hunter met with Parker in a diner and discussed the
investigation. The two had been friends: Parker had taken defendant Hunter out to dinner
numerous times and defendant Hunter had gotten Parker’s son a position with the NCPD.
Defendant Hunter had also previously assisted Parker’s son in avoiding moving violations.
Following the diner meeting, defendant Hunter called the 7th Precinct and had a two-minute
conversation with defendant Sharpe.
8. Over the next week, defendant Hunter offered his assistance to Parker and
initiated e-mail communications, telling Parker that he was available to assist him. On May 30,
2009, Parker asked defendant Hunter by e-mail to get the 7th Squad to “lay low” on his son’s
case because Parker’s lawyer was trying to resolve the situation. Defendant Hunter assured
Parker that he would make sure that the unindicted co-conspirator laid low.
9. On June 12, 2009, nearly one month after the principal filed her complaint, Parker
informed defendant Hunter that the stolen property in the custody of the NCPD 7 th Squad should
be returned to the school on June 16, 2009. Parker also provided defendant Hunter with other
information necessary to return the stolen property. That same day, defendant Hunter directed
defendant Sharpe to return the stolen property.
10. On June 16, 2009, pursuant to defendant Hunter’s directive, defendant Sharpe
instructed a detective, who was not the unindicted co-conspirator, to return the property to the
school. On this same date, Parker’s wife went to the school to return other stolen property –
property that the NCPD never photographed, inventoried or documented.
11. During this visit, the detective asked the school principal to sign a withdrawal of
prosecution. The principal refused. Following her refusal, at defendant Sharpe’s direction, the
detective did not leave the stolen electronic equipment at the school, stating that he had to return
the property to the precinct because it was evidence in a criminal investigation. Defendant
Sharpe, however, made no effort to have the detective retrieve the stolen property returned to
the school by Parker’s wife. In fact, defendant Sharpe gave no direction that Parker’s wife be
interviewed at all.
12. After learning of what happened at the school, defendant Hunter continued to
offer his help to Parker and, despite knowing that the principal had stated that she did not wish
to withdraw her criminal complaint, Parker’s son was still not arrested.
13. Following the principal’s refusal to withdraw her criminal complaint, Parker
sought assistance from defendant Flanagan, a sergeant in the Asset Forfeiture Unit of the NCPD
and a close friend of then NCPD Commissioner Lawrence Mulvey. Defendant Flanagan, like
defendant Hunter, had no supervisory authority over the NCPD Detective Division. Defendant
Flanagan, who was later promoted to 2nd Deputy Commissioner of the NCPD, was also friends
with Parker: Parker had treated him to dinners and Yankee tickets.
14. After Parker and defendant Flanagan conversed at the U.S. Open Golf
Tournament, on June 23, 2009, defendant Flanagan e-mailed Parker that he had “put pieces in
motion” to have the stolen property returned to the school. Throughout the summer, while
Parker’s son remained unarrested, defendant Flanagan made numerous attempts to get the stolen
property returned to the school.1
15. Four months after the school’s report of the theft, on September 1, 2009, Flanagan
successfully directed the unindicted co-conspirator to return the stolen property to the school,2
leading Parker to assume that his son would not be arrested. During this return of property, the
principal again refused to sign a withdrawal of the criminal charges. This time, however, the
unindicted co-conspirator, following defendant Flanagan’s direction, left the property at the
school. Still, Parker’s son was not arrested.
16. On September 9, 2009, defendant Flanagan informed Parker that he had
successfully arranged for the stolen property to be returned to the school. The following day,
Parker sent defendant Flanagan gift cards of at least $200 value. Defendant Flanagan did not
return the cards.
17. In September 2010, defendant Sharpe formally closed the case against Parker’s
son by authorizing a close-out memorandum that falsely stated that the school administrator did
not want to proceed with criminal charges against Parker’s son.
1 In a statement to the press that the People intend to introduce at trial, defendant Flanagan admitted that he actually reached out to the principal about the Parker situation, then as a Second Deputy Police Commissioner. 2 To this day, all of the property stolen by Parker’s son has not been returned to the school. In his plea agreement, Parker’s son agreed to pay restitution for the electronic equipment that was never returned.
18. In April of 2011, the Long Island Press ran a newspaper article entitled
“Membership has its Privileges.” In the article, the author discussed how Parker was able to
prevent his son from being arrested for the spring of 2009 felony thefts from JFK High School
because he had donated large sums of money to a police foundation spearheaded by
Commissioner Mulvey. Following this article, the Nassau County District Attorney’s Office
began an investigation into potential unlawful privileges given to civilian donors to the police
foundation by high-ranking members of NCPD.
19. On September 8, 2011, Parker’s son was indicted on a third-degree burglary
charge and criminal possession of stolen property. On March 16, 2012, he pled guilty to third-
degree burglary and second-degree criminal possession of stolen property, both class D felonies.
20. On February 23, 2012, following a seven-month-long Grand Jury investigation
that included the presentation of 23 witnesses and 40 exhibits, defendants William Flanagan,
John Hunter and Alan Sharpe were charged in a ten-count indictment. Defendant Flanagan was
charged with Receiving Reward for Official Misconduct (P.L. § 200.25), Conspiracy in the
Sixth Degree (P.L. § 105.00), and two counts of Official Misconduct (P.L. §§ 195.00[1], [2]).
Defendant Hunter was charged with Conspiracy in the Sixth Degree (P.L. § 105.00), and two
counts of Official Misconduct (P.L. §§ 195.00[1], [2]), and defendant Sharpe was charged with
Conspiracy in the Sixth Degree (P.L. 105.00), three counts of Official Misconduct (P.L.
195.00[1], [2]), and Offering a False Instrument for Filing (P.L. § 175.30).
21. In an omnibus motion dated May 15, 2012, defendant Flanagan asked the Court to
(i) dismiss the indictment as facially insufficient; (ii) inspect the Grand Jury minutes and release
them to the defense, and dismiss all of the counts in the indictment for legal insufficiency and
impairment of the integrity of the Grand Jury proceedings; (iii) dismiss or reduce the charges in
the indictment; (iv) dismiss the indictment for impairment of the integrity of the Grand Jury;
and (v) sever his trial from that of his co-defendants.
22. In an omnibus motion dated May 14, 2012, defendant Hunter similarly asked this
Court to (i) inspect the Grand Jury minutes, release the Grand Jury minutes to the defense, and
dismiss the indictment for legal insufficiency; (ii) dismiss the indictment due to the impairment
of the integrity of the Grand Jury presentation; (iii) sever his trial from that of his co-defendants,
and (iv) order a Sandoval hearing.
23. In an omnibus motion dated May 14, 2012, defendant Sharpe asked this Court to
(i) dismiss the Official Misconduct charges against defendant, (ii) inspect the Grand Jury
minutes, release the Grand Jury minutes to the defense, and dismiss the indictment; and (3)
sever his trial from that of his co-defendants.
24. As discussed in more detail in the accompanying memorandum of law, this Court
should reject all of the defendants’ claims. Not only was the indictment based on legally
sufficient and competent evidence, but defendants have made no showing that the integrity of
the Grand Jury proceedings was impaired in any way.
WHEREFORE, and for the reasons that follow, the People respectfully request that the
Court deny the defendants’ omnibus motions in their entirety.
Dated: Mineola, New YorkJune 19, 2012
____________________________
Stephen AntignaniAssistant District AttorneyPublic Corruption Bureau(516) 571-2100
To: The Hon. Judge George PeckCounty Court – Part 21262 Old Country RoadMineola, NY 11501
Bruce Barkett, Esq.Attorney for defendant Flanagan666 Old Country Road, 7th FloorGarden City, NY 11530
William Petrillo, Esq.Attorney for defendant Hunter11 Clinton AvenueRockville Centre, NY 11570
Anthony Grandinette, Esq.Attorney for defendant Sharpe114 Old Country Road, Suite 420Mineola, NY 11501
SUPREME COURT OF THE STATE OF NEW YORKNASSAU COUNTY: CRIMINAL TERM------------------------------------------------------------------------XTHE PEOPLE OF THE STATE OF NEW YORK, :
: : MEMORANDUM OF LAW
::
-against- : :
WILLIAM FLANAGAN, JOHN HUNTER :& ALAN SHARPE, :
: Defendants. :------------------------------------------------------------------------X
This memorandum of law is submitted in response to the defendants’ omnibus motions.
POINT ONE
THE EVIDENCE BEFORE THE GRAND JURY WAS LEGALLY SUFFICIENT TO SUPPORT ALL CHARGES AGAINST DEFENDANTS (Responding to Defendant Flanagan’s Motion, Points 1-4; Defendant Hunter’s Motion, Points 1-2; and Defendant Sharpe’s Motion, Points 1-2.)
A review of the minutes in this case shows that the evidence before the Grand Jury was
more than sufficient to sustain the charge of Conspiracy in the Sixth Degree against all
defendants; Receiving Reward for Official Misconduct against defendant Flanagan; the Official
Misconduct charges against all defendants; and the Offering a False Instrument for Filing against
defendant Sharpe. The People presented competent evidence to support the indictment.
Moreover, the integrity of the Grand Jury presentation was not impaired in any manner.
Defendants’ claims to the contrary in their motions should all be rejected.
A. The People Consent to the Court Inspecting the Grand Jury Minutes, but Oppose Release of the Minutes to Defendants.
At the outset, the People consent to the Court’s inspection of the Grand Jury minutes in
camera. In fact, the People provided the Court with a complete set of the Grand Jury minutes
following the defendants’ arraignments on May 1, 2012. As demonstrated below, the inspection
will reveal that the evidence adduced before the Grand Jury is legally sufficient to establish each
element of the crimes with which the defendants are charged and that the integrity of the Grand
Jury proceeding was not impaired in any manner.
The People do oppose, however, defendants’ applications for the release of the Grand
Jury minutes, or any portion thereof, for their own use, pursuant to section 210.30 of the
Criminal Procedure Law. Consideration of whether to disclose Grand Jury minutes must occur
against the backdrop of the rule that Grand Jury proceedings are secretive not only to protect an
innocent accused from ungrounded accusations but also to protect witnesses and encourage
reluctant ones to come forward. See C.P.L. § 190.25(4) (a); People v. Fetcho, 91 N.Y.2d 765,
769 (1998); In re District Attorney of Suffolk County, 86 A.D.2d 294, 297 (2d Dept. 1982)
(citing People v. DiNapoli, 27 N.Y.2d 229, 235 [1970]). As the Court is aware, it may release
Grand Jury minutes to the defense if, after an examination of the minutes, the Court finds such
release necessary to assist the Court in making its legal sufficiency determination, provided that
the Court releases only that portion of the minutes necessary for the determination. C.P.L. §
210.30(3). Here, the defense has failed to provide the Court with a legitimate reason to release
the Grand Jury minutes. Not only have defendants failed to show the existence of any novel or
complex issue in this case that would warrant the Court’s seeking their assistance in deciding the
legal sufficiency issue, but, with the benefit of the discovery materials provided by the People
and the detailed indictment provided to them, they have made extensive arguments in their
motions regarding the legal sufficiency of the Grand Jury evidence. Thus, given that defendants
have already made their legal sufficiency arguments and have raised no novel or complex issues,
there is no need for the release of the Grand Jury minutes. See People v. Taylor, __ Misc.2d __,
2001 WL 940238 (Sup. Ct. Queens County 2002) (release of Grand Jury minutes even in a death
penalty case where court held there should be heightened scrutiny was denied because
definitions and concepts in the charges involved matters entirely common in the criminal law);
People v. Owens, 184 Misc.2d 597 (Cty. Ct. Monroe County 2000) (release of Grand Jury
minutes in death penalty case not necessary because charges were straightforward and posed no
novel concepts).
Nonetheless, defendant Flanagan contends that, in deciding whether to release the
minutes, the Court should consider alleged false testimony presented to the Grand Jury because
the Court will need “informed adversarial submissions from both sides.” (Flanagan Omnibus
Motion, p. 5, para. 18). But defendant misses the point of the statute. Section 210.30 authorizes
release of the Grand Jury minutes only when the Court deems it necessary to assist it in its
determination regarding the sufficiency of the evidence. Thus, whether or not the People have
presented false testimony (and as discussed in Point Two, infra, they have not) is irrelevant to the
Court’s determination regarding whether the evidence presented to the Grand Jury was legally
sufficient.
In short, giving due regard to the secrecy associated with Grand Jury proceedings, and
because this case presents no novel or complex issue, combined with the fact that defendants
have already made extensive legal sufficiency arguments, this Court should not release the Grand
Jury minutes to the defense to assist in its determination of whether the evidence before the
Grand Jury was legally sufficient. Further, as demonstrated below, the evidence before the
Grand Jury was indeed legally sufficient.
B. Standard of Review
The Grand Jury does not determine the innocence or guilt of the accused. People v.
Swamp, 84 N.Y.2d 725, 729 (1995). Rather, its primary function is to investigate crimes and
determine whether sufficient evidence exists to accuse the defendant of a crime. People v.
Calbud, Inc . 49 N.Y.2d 389, 394 (1980). It may indict an individual when, based on the
evidence presented, there is reasonable cause to believe that the accused has committed a crime,
which exists when reliable evidence reveals persuasive facts that convince a person of ordinary
intelligence that a crime was committed and that the accused committed it. C.P.L. §§ 190.65(1);
70.10(2); People v. Jennings, 69 N.Y.2d 103, 115 (1986).
In assessing a motion to dismiss an indictment on the basis of legal insufficiency of the
evidence before the Grand Jury, a court must view the evidence in the light most favorable to the
People, , and determine whether that evidence, if accepted as true, would establish every element
of the crime charged and the defendant’s commission of it. C.P.L. § 70.10(1); see also People v.
Jensen, 86 N.Y.2d 248, 251 (1995). In the context of a Grand Jury proceeding, legal sufficiency
means prima facie proof of the crimes charged, not proof beyond a reasonable doubt. People v.
Bello, 92 N.Y.2d 523, 526 (1998). The reviewing court’s inquiry is limited to “whether the
facts, if proven, and the inferences that logically flow from those facts supply proof of every
element of the charged crimes,” and whether “the Grand Jury could rationally have drawn the
guilty inference.” People v. Deegan, 69 N.Y.2d 976, 979 (1987). That other innocent inferences
can be drawn from the evidence is irrelevant to the legal sufficiency inquiry so long as the Grand
Jury could rationally have drawn inferences supporting guilt. People v. Deegan, 69 N.Y.2d at
979.
Moreover, assessing the legal sufficiency of the evidence does not include a weighing of
the evidence, an examination of its adequacy, or determining whether there was reasonable cause
to believe that the defendant had committed the crimes charged, for the resolution of these
questions is exclusively the province of the Grand Jury. Jensen, 86 N.Y.2d at 252; Jennings, 69
N.Y.2d at 115.
Applying the above standard to this case, the evidence was legally sufficient because
viewed in the light most favorable to the People, it permitted the Grand Jury to find reasonable
cause to believe that defendants committed the charged crimes.
C. The Evidence Was Legally Sufficient to Support the Jury’s Conclusion that the Defendants Committed the Crimes of Official Misconduct.
Within days of the school administrator from JFK High School reporting a theft of
electronic equipment by a wealthy and well-connected student, defendant Hunter, the then-Chief
of Patrol of NCPD, and Detective Sergeant Alan Sharpe, a supervising detective in the Detective
Squad within the NCPD, began a series of actions in violation of their duties as law enforcement
officers to ensure that this well-connected teenager was not arrested for his crimes. When these
early efforts failed to convince the school officials to withdraw criminal charges, Second Deputy
Commissioner William Flanagan joined the effort to ensure that this NCPD benefactor’s son did
not get arrested for his crimes.
Additionally, despite the existence of an open and active investigation and the steadfast
refusal of the school to withdraw the criminal complaint, defendants Hunter and Flanagan
directed defendant Sharpe to return all property to the school, in violation of police protocol and
regulations. Despite their violation of the duties “inherent in the nature” of their positions in
deciding that a well-connected student should not be criminally charged with felony theft and
their unauthorized exercise of an official function by directing the assigned detective to return
criminal evidence without proper inventory, all three defendants claim that the evidence
presented to the Grand Jury was insufficient to find that they committed the crimes charged in
the indictment. Specifically, defendants claim that the People failed to prove to the Grand Jury
(1) that defendants violated any duty inherent in the nature of their positions as law enforcement
officers; (2) that their actions of returning the property in an open felony investigation under the
particular circumstances of this case were not unauthorized; and (3) that defendants did not
intend to obtain a benefit for themselves or for a third party by their efforts. Defendants also
claim that the People did not present sufficient evidence to support the charge of Conspiracy in
the Sixth Degree charge. They are wrong.
1. The Grand Jury heard legally sufficient evidence that the defendants committed Official Misconduct.
To satisfy the elements of Official Misconduct, the prosecution must demonstrate by
legally sufficient evidence that a public servant has committed an act relating to his office but
constituting an unauthorized exercise of his official function, knowing that such act was
unauthorized, or that he knowingly refrained from performing a duty which was imposed on him
by law or is clearly inherent in the nature of his office with the intent to obtain a benefit for
himself or a third person. P.L. §§ 190.05 (1), (2). In this indictment, defendants were properly
charged with Official Misconduct under both theories.3
2. The Grand Jury evidence was legally sufficient to show that defendants knowingly violated a duty inherent in the nature of their office. (Referring to Counts 3, 4 & 5 of the Indictment)
3 Defendant Flanagan was charged in Count 2 of the indictment with Receiving Reward for Official Misconduct in the Second Degree. To sustain this charge, the People did not have to demonstrate that Flanagan committed Official Misconduct. Rather, the People needed to show that Flanagan received or accepted a benefit for having violated his duty as a public servant.
As a threshold matter, despite defendant Sharpe’s claim to the contrary (see Sharpe’s
Omnibus Motion, pp. 21-22), the People did not have to demonstrate that defendants violated a
mandatory duty to properly charge them with Official Misconduct. In People v. Mackell, 47
A.D.2d 209 (2d Dept. 1975), the Second Department found that Official Misconduct may occur
even where the duty violated is one that is “couched in discretion.” People v. Mackell, 47
A.D.2d at 219. And in People v. Nieves, 197 A.D.2d 542 (2d Dept. 1993), the Second
Department rejected the same argument that defendant Sharpe makes in his Omnibus motion –
that the failure to arrest an individual for a crime cannot form the basis to sustain the charge of
Official Misconduct. In Nieves, the Second Department upheld a police officer’s conviction of
Official Misconduct when he failed to arrest a drug dealer from whom the officer had purchased
drugs. Id. at 543. Thus, even if defendants’ duty to arrest Parker’s son were discretionary, that
fact does not bar their prosecution for Official Misconduct.
A duty of the Nassau County Police Department is to uphold the laws of this County in a
fair and unbiased manner.4 Although not codified in law, the Nassau County Police Department
has written protocols that are distributed to all of its members. As heard by the Grand Jury, these
protocols set forth different duties guiding all members of the Nassau County Police Department,
including the Chief of Patrol and the Second Deputy Commissioner. First, “it is the duty of the
Police Department and the Members of the Force to . . . detect and arrest offenders . . . and
enforce all laws and ordinances over which the Police Department has jurisdiction.” See NCPD
Department Policy § POL 4000. Second, “the Police Department will conduct a complete and
4 Defendants have claimed to the press that Parker’s son was not given special treatment by the NCPD and that Parker’s son was treated just like other similarly situated teenagers. In his moving papers, defendant Sharpe cites NCPD statistics that he claims corroborate this premise. Defendant Flanagan, in fact, stated that he would have afforded the same opportunity to any young person’s family who asked for his assistance. Based upon records available in the District Attorney’s Office, this same treatment was not given to other similarly situated teenagers. In 2009, the Nassau County Police Department arrested 44 sixteen and seventeen-year-olds for the crimes of third-degree burglary and/or third-degree criminal possession of stolen property. Of these 44 teenagers, 25 were either black or Hispanic.
thorough preliminary investigation at resolving a specific situation or apprehending those
responsible for the commission of offenses.” See NCPD Department Procedure § OPS 8105.
Additionally, this same policy, as the Grand Jury learned, states that if the NCPD
determines that there is probable cause to believe that a crime was committed and that the
offender is not at the scene, the offender must be located and a summary arrest must be effected.
See NCPD Procedure § OPS 8105, p.2. Defendants disregarded these protocols in their efforts
to benefit Parker.
First, Parker’s son was not arrested until October 7, 2011, for the felony crimes of third-
degree burglary and criminal possession of stolen property despite the overwhelming evidence of
his guilt.5 The Grand Jury heard from defendant’s mother, defendant’s father, and defendant’s
friend, all of whom testified that Parker’s son had stolen property from JFK High School.
Despite this fact, defendants Flanagan, Hunter and Sharpe throughout that spring acted to ensure
that Parker’s son was not arrested or prosecuted for these felonies. Second, defendant Hunter,
before being contacted by Parker, reached out to the detective squad handling the investigation
and asked to be “kept apprised of the situation.” He also told the squad commander that Parker
was a personal friend and a benefactor of the NCPD, thereby creating the impression that this
particular investigation would not be supervised through the normal chain of command. In fact,
according to the squad commander, Hunter’s phone call ensured that Parker’s son received
special treatment.
Third, after learning from co-defendant Hunter that it would be a good thing if Parker’s
son were not arrested, defendant Sharpe invited Parker to the precinct for a conversation about
his son’s case. During this discussion, Parker was shown additional recovered evidence –
5 On March 16, 2012, Parker’s son pled guilty and fully admitted his guilt. He also admitted that he never returned all of the stolen property to the school. His sentence is pending.
evidence that should have been stored in a property room. Moreover, following defendant
Hunter’s phone call, defendant Sharpe made no efforts to have his detective speak to potential
witnesses, recover additional property, or recover videos from the school that would have shown
Parker’s son at the school on the night of the burglary. Instead, defendant Sharpe and the
unindicted co-conspirator attempted to get the school administrator to change her position on
whether she wanted Parker’s son arrested. Therefore, the Grand Jury could reasonably infer that,
because of defendant Hunter’s interference, there was no investigation into Parker’s son’s
culpability and that the outcome of the investigation was predetermined.
Moreover, the Grand Jury heard that defendant Flanagan did not interfere with the
investigation until after the school administrator had already refused to sign a withdrawal of
prosecution that was placed before her for her signature. And, according to another supervising
detective, the participation of defendant Flanagan, the Second Deputy Commissioner, was out-
of-the-ordinary because Flanagan bypassed the Chief of Detectives when he involved himself
with the Parker investigation. From all of these facts, the Grand Jury reasonably found that there
was reasonable cause to believe that these defendants violated written county police policy and
procedures. See Mieles v. Safir, 272 A.D.2d 199 (1st Dept. 2000) (First Department upheld the
termination of a police officer finding that the violation of the NYPD patrol guide could have
constituted the crime of Official Misconduct, thereby extending the statute of limitations for
officer’s termination hearing).
Even without these written protocols, the Grand Jury heard ample testimony that
defendant Flanagan, defendant Hunter, and defendant Sharpe knowingly refrained from
performing a duty “clearly inherent in the nature of [their] office.” P.L. § 190.50(2). “A duty
which is clearly inherent in the nature of the office encompasses those unspecified duties that are
so essential to the accomplishment of the purposes for which the office was created that they are
clearly inherent in the nature of the office.” People v. Lynch, 176 Misc.2d 430, 433 (Rockland
County 1998); see also People v. Jackson, 35 Misc.3d 179 (Kings County 2011). Investigating
crimes and making felony arrests are certainly essential duties of the Nassau County Police
Department and inherent in the nature of a law enforcement officer. And so, as the Grand Jury
found after hearing all of the evidence, defendants violated this inherent duty when they did not
arrest Parker’s son for felony thefts and when they returned property to the school to justify this
non-arrest.
Additionally, the Grand Jury heard evidence suggesting that defendant Flanagan
understood that his conduct was wrong. First, following the article in the Long Island Press,
defendant Flanagan opened the Parker police reports and read them. Also, although numerous e-
mails between defendant Flanagan and Parker were recovered from Flanagan’s mailbox
following a search by an expert hired by the District Attorney’s Office, there were no e-mails
recovered from Flanagan’s personal mailbox as a result of an e-mail search by the NCPD,
suggesting that defendant Flanagan had deleted those e-mails. Finally, the Grand Jury learned
that defendant Flanagan, a law enforcement officer fully cognizant of the secrecy of Grand Jury
proceedings, called Parker following Parker’s testimony to the Grand Jury, asking Parker the
questions the prosecutor had asked him about defendant Flanagan’s conduct. Although these
pieces of evidence would not be sufficient, standing alone, to sustain an indictment against
defendant Flanagan, the Grand Jury could nonetheless consider them in its determination that
legally sufficient evidence existed to charge defendant Flanagan with these crimes.
Additionally, even if defendants believed that the school was willing to withdraw the
complaint against Parker’s son if all of the property were returned, Parker’s son did not return all
of the property. The school never received all of the property from Parker’s son. In fact, nearly
$4000.00 worth of electronic equipment stolen by Parker’s son that spring was never returned.
In conclusion, the Grand Jury acted appropriately when it indicted defendants on Counts
3, 4 and 5 for Official Misconduct and found that they had violated an inherent duty of their
positions as law enforcement officers.
3. The Grand Jury correctly found that defendants knowingly committed acts that constituted an unauthorized exercise of their functions as law enforcement officers (Referring to Counts 6, 7, 8 & 9 in the indictment).
There was also legally sufficient evidence from which the Grand Jury could have
determined that defendants Hunter and Flanagan directed the return of stolen property so that the
well-connected son of a police benefactor would not be arrested on felonies, an unauthorized
exercise of law enforcement functions, and that defendant Sharpe also committed acts that
constituted an unauthorized exercise of his law enforcement function when he acquiesced to his
superiors’ demands and directed his subordinates to return the stolen property. For purposes of
these counts, the Grand Jury heard testimony and read the departmental protocols that dictate the
manner in which recovered property should be invoiced and stored during a criminal
investigation. NCPD Procedure § OPS 10002. The protocol also makes clear the process that
should be followed when removing property from a precinct.
In this case, the Grand Jury properly determined that defendants engaged in an
unauthorized exercise of their duties when they returned criminal evidence to justify Parker’s
non-arrest without following their written protocol. Defendants were aware of the protocol,
having received the rules and policies and all of their updates. A representative of the NCPD
Legal Bureau testified that all members of the department receive these protocols and that all
members of the department, despite their rank, are directed to follow these rules. In this case,
these defendants did not.
As mentioned earlier, defendant Hunter had no administrative authority over defendant
Sharpe’s division. Defendant Flanagan also had no administrative authority over defendant
Sharpe’s squad. Both men bypassed NCPD protocols by directing defendant Sharpe and his unit
to return the stolen property to the school. They also knowingly committed unauthorized acts
when they took their direction as to how to proceed in this investigation from the suspect’s
father. The e-mail trail left by these defendants further demonstrated for the Grand Jury that
defendants Flanagan and Hunter abdicated their duties as law enforcement officers when they
allowed Parker to guide the NCPD handling of the matter.
Defendants may try to argue, as they have done in the press, that they thought that the
school did not want to proceed with criminal charges against Parker’s son and that by returning
the property they were merely following the school’s request. The Grand Jury reasonably
disregarded this claim. Significantly, Hunter, who because of his position with the NCPD’s
Highway Unit had previously prevented Parker’s son from receiving moving violations, inserted
himself into the investigation before Parker met him in the diner by reaching out to the Squad
Commander in the days following the complaint. Additionally, following his diner meeting with
Parker, defendant Hunter called the precinct and spoke to defendant Sharpe about the matter.
The Grand Jury also had the opportunity to review e-mail communications between
defendant Hunter and Parker. Following a request by Parker to defendant Hunter to have the
squad “lay low” in its investigation, defendant Hunter assured Parker that he would do so. As
the evidence further established, the NCPD did not arrest Parker’s son for the felony thefts.
Also, defendant Hunter made arrangements for the return of the property to the school only after
receiving his instructions from Parker. As the Grand Jury heard throughout the presentation,
every opportunity where Parker, a civilian not employed by the NCPD, gave instructions or
made requests concerning his son’s investigation, defendant Hunter carried out those instructions
or requests. Therefore, the Grand Jury had reasonable cause to believe that Hunter committed
an unauthorized act related to his position when he ordered defendant Sharpe to return the stolen
property to the school.
Similarly, defendant Flanagan, the Second Deputy Commissioner and a close confidante
of the then-police commissioner, immediately took action following his conversation with Parker
about the son’s investigation at the Bethpage U.S. Golf Open and called the detective squad,
following up with several other calls. Defendant Flanagan “put pieces in motion” to get the
property returned to the school despite the school’s insistence several days earlier that it would
not withdraw criminal charges against Parker’s son. Then, throughout the summer, defendant
Flanagan followed Parker’s instructions to get the property returned to the school.
Defendant Sharpe too was aware that the school administrator would not agree to
withdraw criminal charges against Parker’s son. Nevertheless, he ordered his detective to return
the property to the school. And, the evidence showed that defendant Sharpe went so far as to
falsify the close-out police report to justify the unlawful return of the property.
Thus, defendants’ claim that they did not violate an authorized duty should be rejected.
Viewed in the light most favorable to the People, the evidence before the Grand Jury amply
established that defendants committed unauthorized acts, and that they did so knowingly when
returning the stolen property to the school under these circumstances. Thus, this Court should
deny defendants’ motions to dismiss Counts 6, 7, 8 and 9 of the Indictment.
4. The Grand Jury evidence was legally sufficient to demonstrate that defendants violated their duties and took unlawful actions so that they could benefit Parker,
and, in one instance, defendant Sharpe took unlawful action to benefit himself.
Both defendant Hunter and defendant Flanagan had long-standing personal relationships
with Parker that continued even after the two ensured that Parker’s son would not be arrested for
felony theft. Defendants Hunter and Flanagan were frequently taken to dinner by Parker. Both
defendants attended yearly barbecues held by Parker. Merely a week before Parker’s son was
named as a suspect in the felony thefts, Parker gave defendant Flanagan free Yankee tickets.
After hearing this evidence, the Grand Jury was correct in concluding that these men disregarded
their duties as police officers in order to benefit Parker, their friend and benefactor. Although
defendant Sharpe had no prior relationship with Parker prior to the spring of 2009, at the behest
of his supervisors, Sharpe quickly developed such a relationship. Defendant Sharpe invited
Parker to the precinct, gave him advice as to how his son’s investigation could be resolved, and
showed Parker property that his son had stolen. Despite this evidence, defendants still claim that
the evidence in the Grand Jury was insufficient to show that these law enforcement officers took
the actions they did in order to benefit either themselves or a third person. The Grand Jury
correctly concluded that these defendants acted with the desire to benefit Parker.
As charged to the Grand Jury, “benefit is 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.” People v. Lucarelli, 300 A.D.2d 1013 (4th Dept. 2002); see also P.L. §10.00(17).
The Court of Appeals has further stated that the benefit to sustain a conviction for Official
Misconduct can be simply to gain an advantage or to avoid disciplinary proceedings. People v.
Feerick, 93 N.Y.2d 433, 448-449 (1999); see also People v. Jackson, 35 Misc.3d 179 (Kings
County Crim. Ct. 2011) (court held EMT should not have left her command center and therefore
intended to gain a benefit by avoiding disciplinary proceedings when she left a dying customer in
an Au Bon Pain).
In Lucarelli, following a report by two civilians suspected of drug activity that included
the name of a suspect, the desk officer who received the report called the named suspect’s
mother to tell her that her son had been named a suspect in purported drug activity and that her
son should stay away from the drug location. People v. Lucarelli, 300 A.D.2d 1013. For his
conduct, the officer was indicted for Official Misconduct. Following a dismissal of the
indictment by the trial court, the Appellate Division found that the trial court was incorrect in
dismissing the Official Misconduct count because the officer’s interference with the
investigation of the drug dealing suspect was unauthorized and his call to the suspect’s mother
was to benefit the suspect, a third person. Accordingly, despite defendants’ claims to the
contrary, the law does not require that the “principle ‘beneficiary,’ under the very terms of the
statute, must be the defendant, even if there is a third party beneficiary as well.” ( See Defendant
Flanagan’s Memorandum of Law, p. 4) As discussed above, no such requirement exists.6 In
fact, in Lucarelli, the Third Department found that the officer intended no benefit for himself, but
by his conduct intended to benefit only the suspect. See also People v. Heckt, 62 Misc.2d 287
(Erie County Ct. 1969) (court upheld police officers’ indictment for Official Misconduct for
allowing and participating in illegal card games, holding that the defendants’ conduct benefited
the card game organizers). In the absence of controlling authority from the Second Department,
this Court is bound by the Third Department’s interpretation of P.L. §10.00(17) in Lucarelli. See
Mountain View Coach Lines, Inc. v. Storms 162 A.D.2d 663, 664 (2d Dept. 1984).
6 Defendant Flanagan’s suggestion that the beneficiary under Official Misconduct cannot be solely a third party is wrong as well. While the statute does, in fact, use the word “include” in its definition of benefit, the governing case law has interpreted the statute to mean a benefit can be to either the defendant or a third-party. See, e.g., People v. Lucarelli, 300 A.D.2d at 1013 (benefit only to a third-party).
This Court must determine whether the evidence presented to the Grand Jury was
“legally sufficient” to establish that defendants both committed an unauthorized act related to
their positions as police officers and that they refrained from performing a duty inherent in the
nature of their office in order to benefit Parker. The relationship between the parties prior to the
spring of
2009 was one factor necessary to the Grand Jury’s determination of whether the acts of
defendants
Sharpe, Hunter and Flanagan were undertaken to benefit Parker.7 Prior to the spring of 2009,
Parker had begun forging relationships and “friendships” with high-ranking members of the
Nassau County Police Department, including both defendants Hunter and Flanagan. Parker
frequently held dinners at Nassau County restaurants for police department officials and paid the
bill, dinners frequently attended by both Hunter and Flanagan. Further, both defendants attended
an annual barbecue Parker held for law enforcement.
Due to this relationship, defendant Hunter secured Parker’s son employment with the
Nassau County Police Department Ambulance Unit in a position created solely for Parker’s son.
Defendant Hunter, having been the commander of the Highway Division, also told Parker that he
was instrumental in having Parker’s son avoid moving violations on numerous occasions, a fact
corroborated by the driving record of Parker’s son which showed that despite the fact that his
license plate was run by law enforcement numerous times, he never received a moving violation.
Additionally, defendant Hunter’s friendship with Parker became so strong that, during a
blackout, Hunter provided Parker with a police generator — a benefit not afforded other citizens
of the county.
7Defendant Hunter claims that evidence about his relationship to Parker was improperly admitted during the Grand Jury proceeding. This evidence was necessary to show the long-standing ties between the two parties. It also helped to prove the reason why defendant Hunter acted in the manner he did. Thus, the relationship evidence, both in e-mails and through testimony, was necessary background evidence and explained defendant Hunter’s behavior.
Additionally, both defendants Hunter and Flanagan were friendly enough with Parker that
Parker felt comfortable seeking their assistance in getting his son out of trouble for the theft of
the electronic equipment. And, as the Grand Jurors heard, defendants Hunter and Flanagan
unhesitatingly obliged. Defendant Hunter, the Grand Jury evidence established, interfered with
the investigation even before being informed of the incident by Parker himself. The
Commanding Officer in the investigating squad testified that she believed, because of her
conversation with defendant Hunter, that he wanted this low level felony to be resolved without
Parker’s son being arrested. And, another sergeant in the squad with defendant Sharpe testified
to the unusual nature of defendant Flanagan’s telephone call inquiring about the stolen property’s
status. Further, the Grand Jury heard testimony that defendant Flanagan thanked the unindicted
co-conspirator during the fall of 2009, a person with whom defendant Flanagan had no prior
relationship.
The evidence before the Grand Jury also showed that defendant Sharpe committed
misconduct to benefit Parker and himself. Although defendant Sharpe had no prior relationship
with Parker, he handled this investigation differently once he knew that defendant Hunter had an
interest in this case. Defendant Sharpe invited Parker to the precinct to discuss the matter, gave
Parker his business card with his personal cell phone number on it, showed Parker the property
that had been returned to the precinct by a friend of Parker’s son, and called Parker several times
on his personal cell phone later that same day. Sharpe’s benefit was neither abstract nor remote.
Cf. People v. Cavan, 84 Misc.2d 510 (Sup. Ct. Queens County 1975) (burglary suspect’s offer of
“can’t we fix this” to arresting officer deemed too vague to demonstrate that suspect intended to
confer a benefit on the arresting officer to sustain a bribery charge). Thus, the Grand Jury
evidence was legally sufficient to establish that defendant Sharpe acted in the manner in which
he did in order to gain an advantage with his supervisors and to benefit Parker, a friend of the
NCPD. See People v. Feerick, 93 N.Y.2d at 448-49 (defendants intended to recover a benefit
when they illegally entered and ransacked apartments in attempt to find stolen police radio, the
loss of which “could have subjected defendants to scorn, ridicule or possible discipline”).
The evidence also established that defendant Flanagan had a personal relationship with
Parker that motivated him to commit an unauthorized act related to his duty and to refrain from
performing a duty inherent in the nature of his office. Moreover, the Grand Jury also saw e-
mails indicating that only days before the theft from JFK High School, Parker offered defendant
Flanagan Yankee tickets and access to an “outdoor seating area . . . custom designed with 1,300
cushioned seats with padded backs that offer an extraordinary stadium experience.” The e-mail
offer also noted that defendant Flanagan would have “access to the Terrace Level Outdoor Suite
Lounge, a separate climate-controlled indoor environment that offers a multitude of exclusive
perks, including access to private restrooms, high-definition TVs, a variety of menu options, and
a four-sided cocktail bar that delivers an exceptional selection of beverages.”
Moreover, after the property was returned to the school at defendant Flanagan’s direction,
defendant Flanagan used his friendship with Parker to secure a Tag Heur watch at a wholesale
cost rate. And, instead of paying for the watch, Flanagan, at Parker’s behest, made a tax
deductible donation to the Nassau County Police Department Foundation.8 Thus, with all of this
information, the Grand Jury reasonably found that Flanagan’s acts were undertaken to benefit
Parker.
Despite defendants’ claims, People v. Esposito, 160 A.D.2d 378 (1st Dept. 1990), does
not undermine the Grand Jury’s conclusion that there was sufficient evidence to satisfy all of the
8 The Nassau County District Attorney has not yet determined whether defendant Flanagan claimed a tax deduction for the $1500.00 donation to the foundation, but e-mails suggest that the donation was actually payment for the watch.
elements of Official Misconduct. In that case, the court stated that the benefit under Official
Misconduct needed to be for the defendant “himself or another.” However, the court further
stated that the facts of that case, in which an MTA police chief was indicted on numerous official
misconduct charges because he used the New York State Police Information Network on various
occasions at the request of his employers, did not establish that the defendant wanted to benefit
himself, and any benefit to the employer was too ill-defined to prove criminality. Here, that is
not the case. Parker, a friend of both defendants Hunter and Flanagan, benefited from the police
officials’ misconduct, and defendants committed their acts of misconduct for the purpose of
benefiting Parker. In fact, due to the misconduct of these officers, Parker’s son was not arrested
on felonies, a direct benefit to Parker himself. Further, the Grand Jury was privy to an e-mail
exchange between defendant Hunter and Parker in which Parker thanked defendant Hunter for
being “a great person and friend” for getting the NCPD to “lay low,” and Hunter responded, “As
you taught me that is what friends are for!” Similarly, following Parker’s thank-you to defendant
Flanagan for returning the stolen property, defendant Flanagan responded in an e-mail, “[D]e
nada family.”
Additionally, as mentioned earlier, the Grand Jury heard evidence that Sharpe invited
Parker to the precinct, showed Parker the stolen property, gave Parker his business card, and
offered Parker his personal cell phone number. The Grand Jury also heard evidence that Sharpe
kept Hunter and Flanagan updated on the case, knowing that both had relationships with Parker.
Thus, although Sharpe did not have a personal relationship with Parker, the Grand Jury correctly
concluded that Sharpe committed misconduct with the intent to benefit Parker and to gain a
professional advantage for himself. Therefore, unlike in Esposito, where the benefit was ill-
defined, the benefit in this case was to a distinct individual for a distinct purpose.
Thus, despite defendants’ claims to the contrary, the People presented legally sufficient
evidence that defendants committed Official Misconduct with the intent to benefit Parker, a well-
connected benefactor of the NCPD. Therefore, defendants’ claims that there was no benefit
conferred should be rejected and their motions to dismiss the Official Misconduct counts denied.
D. The Evidence was Legally Sufficient to Support the Jury’s Conclusion that the Defendants Each Committed the Crime of Conspiracy.
Defendants Flanagan, Hunter and Sharpe conspired to commit the Crime of Official
Misconduct. The fact that the Grand Jury heard no evidence that defendants Flanagan and
Hunter communicated directly with one another does not undermine the legal sufficiency of the
conspiracy charge. The Grand Jury heard legally sufficient evidence supporting the first count in
the indictment.
1. New York’s unilateral approach to conspiracy requires no “collective intent” or “meeting of the minds” to establish a conspiracy.
New York has adopted the unilateral approach to conspiracy, which focuses on individual
liability and individual mens rea. The identity and degree of participation by other co-
conspirators is irrelevant if the individual believes that he has joined with others to perform the
acts comprising a substantive crime. Even if the individual is mistaken as to the fact of an actual
agreement with others, he is not thereby relieved of criminal liability for conspiracy.
The first appellate case in New York to confront the adoption of a unilateral approach to
conspiracy was People v. Schwimmer, 66 A.D.2d 91 (2d Dept. 1978), aff’d 47 N.Y.2d 1004
(1979). The Schwimmer court explained that prior to the revised Penal Law (1965), New York
held to the traditional bilateral approach to conspiracy under which a conspiracy was defined as
two or more persons conspiring to commit an illegal act, essential to which was the sharing by at
least two persons of the proscribed mens rea. Under this formulation, if a defendant’s sole co-
conspirator were acquitted, or was not criminally liable due to age or a simulated agreement by
an undercover agent, then the defendant was also required to be acquitted. People v.
Schwimmer, 66 AD.2d at 93. With the enactment of the revised Penal Law, however, the
Schwimmer court went on to explain, the unilateral approach to conspiracy as exemplified by the
Model Penal Code, was adopted by New York. Now, by concentrating on individual liability,
rather than group liability, the guilt of a particular actor is independent of that of his co-
conspirator(s). Such treatment is important when, for example, a defendant’s only co-
conspirator (a) is legally irresponsible or immune or incapable of committing a particular
offense, (b) has feigned agreement, usually as part of a law enforcement scheme, or (c) is
unknown, unapprehended, unindicted, unconvicted or acquitted. A unilateral definition of
conspiracy means that none of these circumstances will preclude defendant’s conviction where
the evidence is otherwise sufficient. See also P.L. § 105.30; People v. Berkowitz, 50 N.Y.2d
333, 342-43 (1980).
Significant implications of the adoption of the unilateral theory of conspiracy include that
even if a defendant is factually incorrect about having become a conspirator – that is, if he
believes subjectively that he has joined a conspiracy but his co-conspirator has feigned
agreement (see People v. Macklowitz, 135 Misc.2d 232 [N.Y. County Sup. Ct. 1987]), or is even
an undercover officer (see People v. Lanni, 95 Misc.2d 4 [Bronx County Sup. Ct. 1978]), he may
still be found guilty of conspiracy. This, of course, underscores the fact that there need be no
contractual “meeting of the minds” for guilt of a conspiracy to be established. The “act” of
agreement is simply an expression of each individual actor’s intent to commit the substantive
crime together with others. Obviously, a conspiracy need not be simultaneously formed in the
minds of each co-conspirator under this theory. A conspiracy may well exist long before it is
joined by the defendant in question, or long before it is believed to have been joined by that
defendant.
The identity and degree of participation by the other persons is wholly irrelevant. Also irrelevant are the fineties of contract law concerning when an agreement is consummated (e.g., meeting of the minds). It is the individual who is prosecuted and necessarily it is the individual who must have the prescribed mens rea. The requisite intent is to join with others to commit a substantive crime. If an individual believes he has so joined, it is sufficient to establish complicity, regardless of the actual fact of agreement. Such mistake of fact certainly does not relieve the individual of criminal liability (Penal Law 15.20) …
The focus of the unilateral approach is to prosecute each defendant for the person’s participation in the criminal conspiracy. Thus, if an individual has the requisite mens rea and does, albeit from his perspective, agree with others and commits an overt act in furtherance of performing the substantive crime, then there is no persuasive reason why that individual should escape criminal sanction.
People v. Schwimmer, 66 A.D.2d 91, 94-96. Thus, under New York’s existing unilateral
approach to conspiracy, there is no requirement of “collective intent” or a “meeting of the
minds.” People v. Negri, 132 A.D.2d 488 (1st Dept. 1987).
When one evaluates the individual intent of each of the defendants in this case, it is clear
that each defendant individually intended to commit acts comprising the substantive crime of
Official Misconduct together with other individuals whose actions were needed to complete the
crimes (including the unindicted co-conspirator). The testimony and exhibits in the Grand Jury
establish that each defendant intended and acted to secure the release of evidence of a felony
from police custody while a criminal investigation was open in an effort to avoid the arrest of an
identified target against whom probable cause existed for his arrest. These and other acts, done
with the intent to benefit Parker and/or co-defendant Sharpe, were either unauthorized or
violative of police duties, as discussed fully above on pages 5 through 14.
2. Even when no direct connection is shown between them, individuals are co- conspirators if each knew or had reason to know that others were involved in a project to commit the acts constituting a crime and that the attainment of the goal was probably dependent on the success of the entire venture.
The law of conspiracy considers individuals to be co-conspirators even when they are not
actually or personally acquainted with one another as long as each had reason to know (1) that
others were involved in a project to commit the acts comprising the object crime and (2) that the
attainment of their own goals was likely dependent on the success of the entire venture. This
rule, initially established in narcotics conspiracy cases, (see People v. Rodriguez, 274 A.D.2d
826 [3d Dept. 2000]; People v. Brooks, 268 A.D.2d 889 [3d Dept. 2000]; People v. Parker, 124
Misc.2d 772 [Cty. Ct. Oneida County 1984]), is equally applicable to non-narcotics offenses
such as the resale of stolen brokerage bonds. See People v. Negri, 132 A.D.2d at 490.
This aspect of the law of conspiracy in New York was thoroughly described by Justice
Irving Lange in People v. Macklowitz, 135 Misc.2d 232, 236-37 (Sup. Ct. N.Y. County 1987):
Numerous labels have been used in an effort to categorize different types of conspiracies. Chains, links, wheels, hubs and spokes are just a few of the terms utilized where there are several layers of actors involved with various, albeit related, roles and objectives. The most common distinction made is between wheel conspiracies and chain conspiracies. A wheel conspiracy involves an individual (or small group)—the hub, who transacts illegal dealings with the various other individuals—the spokes….
In contrast, the chain conspiracy usually involves several layers of personnel dealing with a single subject matter, as opposed to a specific person. Drug trafficking is often cited as a classic example of a chain conspiracy inasmuch as it is characterized by manufacturing links, wholesaling links and retailing links. United States v. Bruno 105 F.2d 921 (2d Cir.1939), rev'd on other grounds 308 U.S. 287.) A single conspiracy can be proven if each link knew or must have known of the other links in the chain, and if each defendant intended to join and aid the larger enterprise. Marcus,[Prosecution and Defense of Criminal Cases] (1986), Kotteakos v. United States, 328 U.S. 750 (1946), Blumenthal v. United States, 332 U.S. 539 (1947). The chain theory of conspiracy has been recognized by New York State courts in a drug distribution case (People v. Parker, 124 Misc.2d 772), and in a stolen property fencing scheme (People v. Kiszenik, 113 Misc.2d 462)….
[S]ome conspiracies may be classified as chain/spoke combinations. For example, in narcotics trafficking, the links at either end might be comprised of a number of persons “who may have no reason to know that others are performing a role similar to theirs—in other words the extreme links of a chain conspiracy may have elements of the spoke conspiracy.” United States v. Borelli, 336 F.2d 376, 383 (2d Cir.1964), cert. den. sub nom. Mogavero v. United States, 379 U.S. 960. Perhaps a more accurate way to visualize a complex conspiracy case would be to view it as a three dimensional organic chemistry molecule with each part interacting continuously with another thereby forming and adhering to the whole, for a common purpose.
In People v. Kiszenik, 113 Misc.2d 462 (N.Y. County 1982), Justice Harold Rothwax
applied the chain theory of conspiracy to a stolen property fencing conspiracy. Upon his
inspection of the Grand Jury minutes, Justice Rothwax found that
the evidence before the Grand Jury was legally sufficient to warrant the conspiracy charge against the defendant…. Conversations between the defendant and other members of the conspiracy… together with other testimony…was accordingly sufficient prima facie to connect the defendant with the ongoing conspiracy which had as its object the theft of garments, storage and ultimate sale to retailers. The fact that the defendant did not know all of the details regarding the manner in which the garments were stolen and resold or the identity of all of the participants does not amount to a failure of proof of conspiracy (Blumenthal v United States, 332 U.S. 539, 556-557). This was a classic “chain” conspiracy, in which “the conspirators at one end of the chain knew that the unlawful business would not, and could not, stop with their buyers; and those at the other end knew that it had not begun with their sellers.” (United States v Bruno, 105 F2d 921, 922, revd on other grounds 308 U.S. 287).
Another example of a chain conspiracy is the Parker case, supra, whose pertinent facts
are as follows: Parker was a wholesaler of cocaine, operating from his residence. His major
supplier was co-defendant Pardo. Co-defendants Inserra, Creaco and Baris were drug retailers
who made periodic, regular purchases of cocaine from Parker. Co-defendant Entwistle resided
with Parker and participated in his illegal activities. All defendants in the case were shown to
have had direct dealings with Parker and Entwistle, but there was no evidence to demonstrate
any connection, let alone any direct agreement, among defendants Pardo, Inserra, Creaco or
Baris. Although no direct connection was shown between retailers, they could still be found to
be members of a single conspiracy “if each knew or had reason to know that other retailers were
involved in a broad project for the importation, distribution, and retail sale of narcotics and had
reason to believe that their own benefits derived from the operation were probably dependent
upon the success of the entire venture.” People v. Parker, 124 Misc.2d 772, 774 (Cty. Ct. Onieda
County 1984).
Even though under the cases cited above, there is no requirement that co-conspirators be
acquainted with one another, in the present case many of the co-conspirators (including those
who were not indicted) were known to one another as participants in the charged scheme. See,
e.g., People v. Brooks, 268 A.D.2d at 889-90; People v. Parker, 124 Misc.2d at 774The evidence
before the Grand Jury established that the conspirators were aware during the course of the
conspiracy of the existence of specific co-conspirators as follows: (1) defendant Flanagan knew
of defendant Sharpe, defendant Hunter and the unindicted co-conspirator’s participation; (2)
defendant Hunter knew of defendant Sharpe and the unindicted co-conspirator’s participation;
(3) defendant Sharpe knew of defendant Hunter, defendant Flanagan and the unindicted co-
conspirator’s participation; and the (4) unindicted co-conspirator knew of defendant Sharpe,
defendant Hunter and defendant Flanagan’s participation. Under this theory, it is clear that a
direct connection among each and every conspirator need not be established for conspiracy to be
proven. In a chain conspiracy, as long as a defendant is connected with the co-conspirators
directly above him and below him in the chain, (regardless of whether or not they are
apprehended, indicted, or convicted), and knows or has reason to know that other links in the
chain exist, the defendant can be found to be conspiring with all the other “links,” even if he does
not know them personally. Evidence before the Grand Jury in the form of testimony and e-mails
established that each defendant had reason to know that there were additional co-conspirators,
both known and unknown, who were involved in this scheme. No one individual accomplished
the goal of the conspiracy through his own individual actions, but the goal was effectuated
through actions requested, directed and suggested to other individuals by these defendants. Thus,
even if no direct connection were established between defendants Flanagan and Hunter in the
present case, the evidence still establishes that they conspired with each other under a chain
theory of conspiracy.
3. The agreement between co-conspirators can be established inferentially by circumstances indicating that the defendants engaged in a common effort with others to achieve a common goal.
Keeping in mind, as detailed above, that the People need not establish either “collective
intent” or a “meeting of the minds” of the co-conspirators, individual intent may be demonstrated
inferentially. Here, the Grand Jury had both direct and circumstantial evidence that
unquestionably met this standard.
The common goal alleged by the People in the present case was the non-arrest of Parker’s
son whose arrest was otherwise warranted and appropriate in order to benefit Parker, a financial
benefactor of the Nassau County Police Department and several of its individual members
(Count One of Indictment 338N12). The conspiracy count of the indictment details that each
defendant, with the intent to engage in conduct constituting the crime of Official Misconduct,
agreed with one or more persons, including Parker, to return recovered stolen property that was
evidence of the crime in order to effectuate the goal of the conspiracy.
There is no legal requirement that an explicit, express agreement between co-conspirators
be established, even at trial, for conspiracy charges to properly lie. Proof of conspiracy requires
evidence that defendant entered into an agreement, either express or implied, to commit a crime.
People v. Berkowitz, 50 N.Y.2d 333, 343 (1980); People v. Parsons, 275 A.D.2d 933, 934 (4th
Dept. 2000); People v. Rodriguez, 274 A.D. 2d 826; People v. Givens, 181 A.D.2d 1031 (4th
Dept. 1992); People v. Parker, 124 Misc.2d 772. The existence of an agreement may be
established inferentially by circumstances indicating that defendant engaged in a common effort
with others to achieve a common goal. People v. Parker, 124 Misc.2d at 775-776. A course of
conduct from which an agreement may be inferred, rather than any express agreement, can be
sufficient to establish a conspiratorial agreement. Id.
The question before the Court is whether the facts before the Grand Jury are sufficient to
establish the offense charged or any lesser included offense. The test is whether the evidence,
unexplained and uncontradicted, would warrant a conviction by a trial jury. People v. Leonardo,
89 A.D.2d at 217; People v. Rallo, 46 A.D. 2d 518, 527, (4th Dept. 1975), aff’d, 39 N.Y. 2d 217
(1976). The evidence must be viewed in the light most favorable to the People. People v.
Leonardo, 89 A.D.2d 214, 217 (4th Dept. 1982); People v. Sacco, 64 A.D.2d 324 (4th Dept.
1978).
Business records alone can be sufficient to establish a prima facie case of conspiracy.
Here, emails admissible as business records of the NCPD containing communications in
furtherance of the conspiracy (between Hunter and Sharpe, Hunter and Parker, Flanagan and
Parker and Sharpe and the unindicted co-conspirator) are detailed in the discussion of overt acts
enumerated in Count One of the indictment. See People v. Pleban, 108 A.D.2d 880, 881 (2d
Dept. 1985) (prima facie case of conspiracy established based on telephone records and
documents recovered by the police containing the complainant's business and home addresses
and telephone numbers). Moreover, there was testimony from both the unindicted co-conspirator
and Parker explaining those emails.
4. The conspiracy count should not be dismissed as facially deficient or duplicitous.
In his papers, defendant Flanagan claims that the count charging him and his co-
defendants with Conspiracy in the Sixth Degree (Count One) is insufficiently pled and
duplicitous. To be charged with this crime, defendant claims that that the People were required
to show that defendants “agreed with other[s] to commit criminal conduct.” The plain language
of the charge itself proves this wrong. To satisfy the element of sixth-degree criminal
conspiracy, the People needed to demonstrate for the Grand Jury, by legally sufficient evidence,
that defendants’ conduct constituted the crime of Official Misconduct, and that defendants
intended their conduct. See P.L. §105.00. Through the testimony of over 20 witnesses and the
introduction of over 40 exhibits, the evidence overwhelmingly established for the Grand Jury
that defendants intended the conduct that led to the non-arrest of Parker’s son, despite the
overwhelming evidence of his guilt and a cooperative complainant. Therefore, the count was not
insufficiently pled and the Grand Jury evidence established that defendants’ conduct amounted to
Official Misconduct. Thus, defendant Flanagan’s claim that the first count of the indictment is
facially deficient should be denied.
Moreover, the conspiracy count is not duplicitous. Here, the Grand Jury indicted each
defendant for the substantive crimes of Official Misconduct under both subdivisions (1) and (2)
of Penal Law § 195.00. Indeed, in a similar scenario, where a defendant claimed that he was
inadequately advised of the crime of which he was accused where he was indicted on a single
count of conspiracy based on three different subdivisions of the same penal law crime, the
Appellate Division found that the indictment properly stated “but one crime, that of conspiracy,
although more than one means was specified to effectuate its purpose.” Hannon v. Ryan, 34
A.D.2d 393, 399 (4th Dept. 1970); see also People v. Falkenstein, 288 A.D.2d 922 (4th Dept.
2001) (conspiracy count not duplicitous although it alleged three separate overt acts). Thus, in
this case, there should be no concern that defendants cannot properly prepare a defense because
the indictment’s first count is duplicitous. Defendants have been properly notified that either
theory of Official Misconduct could satisfy the conspiracy charge, and will in fact need to
prepare defenses under both theories. Moreover, at trial, this Court could properly charge the
jury that conduct constituting either theory of Official Misconduct could serve as the predicate
for the conspiracy charge, so long as the trial jury unanimously affirms under which theory of
Official Misconduct – if not both – it finds defendants conspired to commit. For these reasons,
defendant Flanagan’s concerns of duplicity are without merit.
5. The two pages of e-mails dated May 22, 2009, obtained by counsel for defendant Sharpe utilizing a judicial subpoena do not negate the conspiracy in any way.
In an e-mail to Detective Coffey dated Friday, May 22, 2009, sent at 6:04 p.m., Principal
Lorraine Poppe stated that she “had to speak with the superintendent about whether we want
Zach arrested.” This was not a request that no arrest be made until further notice, as has been
widely misreported in the media. The school was closed for Memorial Day until Tuesday, May
26, 2009, and the superintendent was out of town for the weekend. This conversation between
the superintendent and the principal was to take place when school reopened on Tuesday. The
superintendent, in fact, stated in one of these e-mails that “we will wait until we return on
Tuesday…” (emphasis supplied).
The Grand Jury testimony of August 11, 2011, pages 42-44, established that a high-
ranking member of the NCPD understood from either defendant Sharpe or Coffey that these e-
mails expressed Principal Poppe’s desire to get a response from the superintendent, which was
expected the following week. These e-mails were properly understood at the time to be a brief
postponement over a holiday weekend of the arrest of Parker’s son, rather than a withdrawal of
prosecution by the school district. In fact, witnesses later testified before the Grand Jury that the
school district expressly declined to withdraw the criminal charges against Parker’s son. And,
Principal Poppe testified that she told Parker that she would not agree to withdraw the criminal
charges. Moreover, despite further encouragement from members of the NCPD, Principal Poppe
still refused to withdraw charges.
E. The Evidence Was Legally Sufficient to Support the Grand Jury’s Conclusion that Defendant FLANAGAN Committed the Crime of Receiving Reward for Official Misconduct in the Second Degree.
To sustain the charge of Receiving Reward for Official Misconduct in the Second
Degree, the People needed to present legally sufficient evidence that showed that defendant
Flanagan “solicit[ed], accept[ed], or agree[d] to accept any benefit from another person for
having violated his duty as a public servant.” See P.L. § 200.25. Defendant Flanagan
nonetheless states that in order for Count Two of this indictment to have been “sufficiently plead,
it must allege facts which, if proven, would constitute Official Misconduct” (Flanagan
Memorandum of Law, pp. 14-15). This is incorrect.
The charge of Receiving Reward for Official Misconduct does not require that a public
servant violate his duty with the intent to obtain a benefit, as required in an Official Misconduct
charge. See C.J.I. P.L. § 200.25 (Receiving Reward for Official Misconduct in the Second
Degree). Here, defendant Flanagan’s reliance on People v. Feerick, 93 N.Y.2d 433 (1999), is
irrelevant because Feerick does not concern the charge of Receiving Reward for Official
Misconduct in the Second Degree, as that case concerned a prosecution for Official Misconduct.
Moreover, the evidence before the Grand Jury was legally sufficient to indict for
Receiving Reward for Official Misconduct. As discussed, the Grand Jury heard sufficient
evidence that defendant Flanagan violated his duty as a public servant. E-mails introduced to the
Grand Jury established that Parker sent Flanagan gift cards only one day after Flanagan notified
him that the stolen property had been returned to the school. And Parker testified that these gift
cards were never returned, but were, instead, accepted by defendant Flanagan. Thus, there was
legally sufficient evidence to show that defendant Flanagan committed the crime of Receiving
Reward for Official Misconduct in the Second Degree.
F. The Evidence was Legally Sufficient to Support the Jury’s Conclusion that Defendant SHARPE Committed the Crime of Offering a False Instrument for Filing in the Second Degree.
Although defendant Sharpe does not specifically move to dismiss Count Ten (Offering a
False Instrument for Filing in the Second Degree), it is clear that this count is both facially
sufficient as pled and sufficiently supported by evidence before the Grand Jury. The unindicted
co-conspirator testified that an NCPD memo was altered to falsely state that Principal Poppe did
not wish to proceed with criminal charges against Parker’s son. The unindicted co-conspirator
further testified that defendant Sharpe authorized the report knowing that the principal had
refused to withdraw the criminal charges against Parker’s son. Further, an audit report of the
closeout memo that was introduced before the Grand Jury established that defendant Sharpe was
the last person to make written changes to the document. Thus, all of this evidence collectively
demonstrates that the Grand Jury properly indicted defendant Sharpe on the charge of Offering a
False Instrument in the Second Degree.
POINT TWO
THE NEWLY DISCOVERED POPPE E-MAILS ARE NOT EXCULPATORY AND THE PEOPLE’S FAILURE TO OBTAIN THEM AND PRESENT THEM TO THE GRAND JURY DID NOT PREJUDICE DEFENDANTS IN ANY WAY. IN ANY EVENT, THE SUBSTANCE OF THE E-MAILS WAS, IN FACT, PRESENTED TO THE GRAND JURY
(Responding to Defendant Flanagan’s Motion, Point 1; Defendant Hunter’s Motion, Point 2).
In this case, the People presented 23 witnesses and 40 exhibits to the Grand Jury. The
Grand Jury heard, among other things, defendant Sharpe’s statement that he did not believe that
the school necessarily wished to proceed with a prosecution against Parker’s son. Nevertheless,
the Grand Jury properly concluded that the evidence provided reasonable cause to believe that
defendants committed the crimes charged. Defendants now claim that newly discovered e-mails
from Principal Poppe warrant dismissal of the indictment because the e-mails are exculpatory
and adversely affect Principal Poppe’s credibility. For the reasons stated below, this claim
should be rejected.
As a threshold matter, the People did not receive Principal Poppe’s e-mails until April 10,
2012. Contrary to Flanagan’s allegation that the e-mails may have been in the People’s
possession prior to the indictment, the attached affidavit of Christopher Powers, attorney for the
school district, shows otherwise. See Exhibit A, Powers affadivit. As described by Powers,
despite a subpoena requesting all school documents related to the theft of property in the spring
of 2009 by Parker’s son, the People did not receive these e-mails as part of the school’s
production of documents. Instead, the People were provided with Principal Poppe e-mails only
after Judge Kase signed a subpoena on behalf of defendant Sharpe and additional e-mails were
received. See Exhibit A, Powers affidavit.
To merit the "exceptional remedy" of dismissal of an indictment, a defendant must show
that the Grand Jury proceeding was defective. See C.P.L. § 210.35(5); People v. Darby, 75
N.Y.2d 449, 455 (1990); People v. Landtiser, 222 A.D.2d 525, 526-27 (2d Dept. 1995). A Grand
Jury proceeding is defective when it fails to conform to the requirements of Article 190 of the
Criminal Procedure Law to such a degree that the integrity of the Grand Jury is impaired
resulting in prejudice to the defendant. C.P.L. §§ 210.20(1) (c), 210.35(5). This standard "is
very precise and very high" and "does not turn on mere flaw, error or skewing." People v.
Darby, 75 N.Y.2d at 455; People v. Winningham, 209 A.D.2d 461, 462 (2d Dept. 1994). The
focus on the inquiry is on the effect of the alleged error on the Grand Jury's investigation and the
resultant possibility of prejudice to the defendant, rather than on the alleged error itself. People
v. Gonzalez, 175 A.D.2d 810, 811 (2d Dept. 1991).
Indeed, the Court must view the evidence in the light most favorable to the People; that
is, the Court must accept the People's evidence as true, and then determine whether that evidence
was sufficient to support the elements of the crimes charged. See Jensen, 86 N.Y.2d at 252;
People v. Galatro, 84 N.Y.2d at 163; Swamp, 84 N.Y.2d at 84; People v. Mikuszewki, 73 N.Y.2d
407, 411 (1989). Thus, the Court must defer all questions as to the weight of the evidence
because that is exclusively the province of the petit jury. See People v. Galatro, 84 N.Y.2d at
164 (on motion to dismiss, court is precluded from weighing proof or examining its adequacy);
People v. Finley, 104 A.D.2d 450, 451 (2d Dept. 1984) (questions of witness credibility are for
the trier of fact and may not be determined on a motion to dismiss the indictment).
Significantly, the newly discovered e-mails are neither exculpatory nor can they provide
significant impeachment material against Principal Poppe. In the e-mail to Coffey, Principal
Poppe stated that she needed to speak to the [s]uperintendent about whether Parker’s son would
be arrested if Parker’s son returned all of the property. She also let Coffey know that Parker’s
son had confessed to Parker and his wife that he had stolen the property from the school, and that
defendant Sharpe had spoken to Principal Poppe about the criminal investigation. Consistent
with her Grand Jury testimony, Principal Poppe did not indicate to Coffey in this e-mail that she
would be willing to withdraw criminal charges against Parker’s son.
“The People generally enjoy wide discretion in presenting their case to the Grand Jury
and are not obligated to search for evidence favorable to the defense or to present all evidence in
their possession that is favorable to the accused even though such information undeniably would
allow the Grand Jury to make a more informed determination. In the ordinary case, it is the
defendant who, through the exercise of his own right to testify and have others called to testify
on his behalf before the Grand Jury brings exculpatory evidence to the attention of the Grand
Jury.” People v. Lancaster, 69 N.Y.2d 20, 25-26 (1986) (internal citations omitted); accord
People v. Mitchell, 82 N.Y.2d 509, 515 (1993). Indeed, a Grand Jury need not even be charged
on a particular defense unless it has the “’potential for eliminating a needless or unfounded
prosecution.’” Lancaster, 69 N.Y.2d at 27 (quoting People v. Valles, 62 N.Y.2d 36, 38 (1984)).
These principles were applied by the Second Department in People v. Ramjit, 203
A.D.2d 488 (2d Dept. 1994). There, reversing the lower court’s order dismissing indictments
against three co-defendants, the court concluded that the prosecutor had exercised sound
discretion in declining to call before the Grand Jury witnesses who, according to one of the
defendants, would have established that he did not commit the crime. People v. Ramjit, 203
A.D.2d at 489. The court emphasized that “the evidence bore principally upon the victim’s
credibility and, as such, was more appropriately reserved for presentation to the petit jury than to
the Grand Jury.” Id.
Analogous to Ramjit, the People were not required to obtain or present the Grand Jury
with the May 22, 2009, emails of JFK High School Principal Poppe that were recently obtained
by defendants. Like the evidence at issue in Ramjit, the emails would, at most, have impeached
Principal Poppe’s credibility before the Grand Jury and were, thus, more appropriately reserved
for the presentation to the petit jury. Moreover, they did not even come into the People’s
possession until April 10, 2012. As discussed, despite receiving a so-ordered subpoena for all
records related to the theft of electronic property from JFK High School in May, 2009, the school
attorney failed to located and turn over these e-mails. Following a second subpoena issued on
behalf of defendant Sharpe in March, 2012, the school attorney conducted a more exhaustive
search, found the e-mails, and disclosed them to the People and defendants. Finally, the e-mails
did not have the potential for eliminating a needless or unfounded prosecution and, thus, their
absence did not prejudice defendants.
Although the Grand Jury did not see the e-mails, it did, in fact, hear testimony regarding
their substance. The Commanding Officer of the Detective Squad investigating the crime
testified that no arrest was made over the first weekend of the investigation because Principal
Poppe wanted an opportunity to speak to her school administrator before the police department
moved forward with an arrest.
Moreover, Sharpe said in a video statement heard by the Grand Jury, and in an e-mail
dated June 1, 2009, that the school had never made clear that it wanted to proceed with criminal
charges against Parker’s son. Sharpe wrote in the e-mail that the school administrator was
deciding whether to proceed with criminal charges. Finally, in many of the e-mails introduced
before the Grand Jury, Parker stated that his attorney was still trying to negotiate a non-criminal
disposition of his son’s matter. Despite this evidence, the Grand Jury still concluded that
defendants had committed the crimes charged. Thus, in light of all of the evidence presented to
the Grand Jury, defendants cannot sustain their burden of showing that they suffered the
possibility of prejudice from the absence of the e-mails attached to their moving papers. See
C.P.L. § 210.35(5).
Moreover, the e-mails were not exculpatory and it was highly unlikely that, had the
Grand Jury seen them, it would have declined to indict. See People v. Perry, 187 A.D.2d 678,
679 (2d Dept. 1992). The Grand Jury was presented with ample evidence that the school would
not agree to withdraw criminal charges against Parker’s son. The officer who originally spoke to
Principal Poppe testified that Principal Poppe signed a 32(b) complaint stating that she wanted
Parker’s son arrested for the thefts. The detective, who had been assigned the case because of
his relationship with the administrator, testified that during his first interview with Principal
Poppe, she was adamant that Parker’s son be arrested. The detective, dispatched to return the
stolen property following defendant Hunter’s directive to defendant Sharpe, testified that
Principal Poppe refused to sign any withdrawal of prosecution in exchange for the return of
property. Principal Poppe and her colleague also testified that on the day that the property was
actually returned to the school, at defendant Flanagan’s direction, the unindicted co-conspirator
attempted to have her sign a withdrawal of prosecution form and that she again refused. Finally,
an attorney hired by the Parker family testified that no school administrator ever expressed a
willingness to dismiss the criminal complaint if all of the stolen property were returned. Based
upon all of this evidence, the Grand Jury correctly concluded that the school wanted to proceed
with criminal charges against Parker’s son and Principal Poppe’s e-mails would not have
affected this conclusion.
In any event, the e-mails themselves are not inconsistent with Principal Poppe’s Grand
Jury testimony. She testified consistently with the e-mail, stating that she never told anyone in
law enforcement that she was willing to withdraw the criminal charges. She further testified that
the superintendent was aware that Principal Poppe reported the theft to the police and that the
superintendent’s critical decision related to the administrative proceedings against Parker’s son
not the criminal investigation. Her testimony, when read in its totality, is not inconsistent with
these e-mails in which she wrote that, following a telephone call from defendant Sharpe, she
wanted to await the superintendent’s return from New Orleans before the police arrested Parker’s
son. To the extent that the e-mails bear on Principal Poppe’s credibility, this Court should not
pass on her credibility in deciding this motion. Instead, in its review of the minutes, this Court
must accept Principal Poppe’s testimony as true. See People v. Finley, 104 A.D.2d 450 (2d
Dept. 1984).
Finally, defendants’ claims that these e-mails support their defense that they reasonably
believed the school wanted to drop the charges is utterly belied by the Grand Jury record.
Poppe’s e-mail to Coffey was sent on May 22, 2009, after 6:00 pm.9 The Grand Jury testimony
of a high-ranking NCPD officer showed that defendant Hunter had already inserted himself into
the investigation before Poppe’s e-mail was ever written when he told the Squad Commander
that her squad would retain the investigation. Also, before this e-mail was sent, defendant
Sharpe, at defendant Hunter’s direction, had already met with Parker at the precinct. Finally,
before Coffey even had a chance to read the e-mail, defendant Hunter had already met with
Parker at a diner to discuss the thefts, and made a two-minute phone call to the precinct
following the diner meeting.
Moreover, defendant Hunter’s claim that this e-mails show that he could have reasonably
believed that the school administrators did not want Parker’s son arrested will also be negated at
trial by evidence obtained post-indictment. Following Principal Poppe’s e-mail to Coffey,
9 The work records of Coffey, not introduced to the Grand Jury, show that Coffey left work on May 22 nd at 5:17 pm and did not return to work until May 27th. See Coffey’s work records, attached hereto as Exhibit B.
defendant Hunter reached out to Principal Poppe’s relative, a member of the NCPD who had
recently been under defendant Hunter’s command. During this telephone conversation,
corroborated by the telephone records of defendant Hunter and the relative, defendant Hunter, in
an eleven-minute conversation, asked this young officer to reach out to the principal to determine
her course of action and to let her know that Parker’s son was a “good kid” who wanted to go to
college, suggesting that defendant Hunter wanted the officer to convince Principal Poppe to drop
the criminal charges. Despite defendant Hunter’s inappropriate request, Principal Poppe’s
relative properly refused to speak to Principal Poppe about this case.
Flanagan also claims prejudice from the absence of Principal Poppe’s e-mail from the
Grand Jury presentation. An analysis of the Grand Jury minutes, however, demonstrates that this
claim is also without merit. The Grand Jury heard testimony that Flanagan did not even become
involved with the Parker investigation until after June 16th, the day Principal Poppe
unequivocally stated that she would not sign a withdrawal of prosecution, and that fact was
known by defendants Hunter and Sharpe, the unindicted co-conspirator, and Parker. On that
date, Principal Poppe made clear that she expected a prosecution of Parker’s son. Further, the
Grand Jury heard that defendant Flanagan knew of defendant Hunter’s failed attempt to return
the stolen property to the school before his involvement. Defendant Flanagan’s claim that
Principal Poppe’s e-mails may have altered the Grand Jury’s decision to indict him is therefore
speculative and highly improbable. Moreover, there is no indication that Flanagan even knew
about the singular e-mail between Principal Poppe and Coffey. The evidence in the Grand Jury
established that Coffey and defendant Flanagan never had any discussion about the case.
Defendant Flanagan’s many e-mails that were recovered after a full forensic examination of the
department’s back-up tapes fail to show that Flanagan had any knowledge of or interest in the
principal’s state of mind.
Defendant Sharpe also cannot claim prejudice in the Grand Jury presentation because of
the People’s failure to present these newly discovered e-mails. Defendant Sharpe was twice told
that Principal Poppe would not withdraw the criminal charges against Parker’s son, by both the
unindicted co-conspirator and a second Squad detective. He also knew that Principal Poppe had
stated, in the original police complaint, that she wanted Parker’s son arrested, and defendant
Sharpe’s involvement in the investigation precipitated Principal Poppe’s e-mail to Coffey.
Moreover, the Grand Jury learned that defendant Sharpe took no steps to have this matter
investigated in any meaningful way. Defendant Sharpe did not have his detective speak to any
witnesses, including the friend of Parker’s son who returned some of the stolen property, the
school official who saw Parker’s son in the school on the night of the theft, or Parker’s wife who
had received stolen property from her son. Defendant Sharpe allowed Parker’s wife to return
stolen property without having it photographed or documented. He also made no effort to
retrieve video surveillance evidence showing Parker’s son at the scene of the crime on the date
that the property disappeared, and defendant Sharpe made no effort to locate the stolen property
that had not been returned by Parker’s son. From all this evidence, the Grand Jury correctly
concluded that defendant Sharpe and the NCPD never had any intention of fully investigating the
thefts or arresting Parker’s son. Accordingly, the introduction of these e-mails would have had
no impact on the Grand Jury’s findings because the information in them had no impact on
defendants’ states of mind.
POINT THREE
COUNT FIVE IS NEITHER MULTIPLICITOUS NOR DUPLICITOUS (responding to Defendant Flanagan’s Motion Point 3, [B] and [C]).______________
Defendant Flanagan contends that Count Five (P.L. 195.00(1)) is multiplicitous to Count
Eight (P.L. § 195.00[2]) on the theory that “there is no fact to be proven under Count Five that is
not also required to be proven under Count Eight” (Flanagan Memoradum of Law, III. B).
Defendant is incorrect.
An indictment is multiplicitous when two or more counts charge the same crime. People
v. Demetsenare, 243 A.D.2d 777, 779 (3d Dept. 1997). Put another way, counts are not
multiplicitous “if each count requires proof of an additional fact that the other does not.” People
v. Jackson, 264 A.D.2d 857 (2d Dept. 1999). It follows that, even when two or more counts
involve overlapping factual bases, if they charge different provisions of the Penal Law, they are
not multiplicitous. People v. Kindlon, 217 A.D.2d 793, 795 (3d Dept. 1995).
Here, defendant Flanagan is charged under two different subdivisions of Official
Misconduct. Subdivision one is often referred to as the malfeasance section whereas subdivision
two is the nonfeasance section. Only subdivision two requires the People to establish a duty
which the defendant refrained from performing; subdivision one is the knowing commission of
an unauthorized act with no reference to any identified duty. Count Five charges a violation of
P.L. § 195.00(2), which requires proof that there existed a duty imposed upon defendant by law
or which was clearly inherent in the nature of his office. By contrast, P.L. § 195.00(1), charged
in Count Eight, does not have a duty element. Clearly, Count Five requires proof of additional
facts establishing a duty that Count Eight does not. This required proof of an additional fact
establishes that these two counts are not multiplicitous. See William C. Donnino, Practice
Commentary, McKinney’s Consolidated Laws of New York Annonated, Penal Law §195.00
(2010 ed.) (explaining that subdivision one of § 195.00 is concerned with malfeasance and
subdivision two is concerned with nonfeasance and that “[w]hat is common to both
subdivisions” is only that the subject of the offense is a public servant and that the culpable
mental state is an intent to obtain or deprive another of a benefit).
Defendant Flanagan’s insistence that factually there would be no way for the People to
prove one of these counts without proving the other is incorrect. It is quite conceivable in the
abstract that a trier of fact could find that while there was an unauthorized interference in the
investigation, there was a failure to prove beyond a reasonable doubt that there existed the
requisite duty imposed upon defendant Flanagan by law or clearly inherent in the nature of his
office.
Defendant Flanagan also argues that Count Five is duplicitous. Count Five properly
alleges a violation of subdivision two of the Official Misconduct statute. This charge cannot
reasonably or meaningfully be considered duplicitous where the count only alleges one offense.
C.P.L. § 200.30(1); see also People v. Wells, 7 N.Y.3d 51, 56 (2006). Under this indicted count,
the duty element is sufficiently detailed in the factual element of that particular count – namely,
that the defendants, under the circumstances in this investigation had a duty to properly
investigate and to arrest Parker’s son where probable cause for a felony arrest existed.
Defendant Flanagan wrongly asserts that he is “charged with both distinct offenses in the same
count,” disregarding that different elements must be established under the two subdivisions of
Official Misconduct and, instead, focusing solely on the partial factual overlap in the proof that
establishes both Counts Five and Eight of the indictment.
Moreover, despite his complaint otherwise, there is no absence of notice to defendant
Flanagan of the conduct for which he stands accused. Plainly, defendant Flanagan is not being
deprived of the opportunity to defend himself as a result of an alleged duplicitous count, and has
been made fully aware of the conduct from which the criminal indictment arises. See People v.
Beauchamp, 74 N.Y.2d 639, 641 (1989) (court dismissed counts as duplicitous in sex offense
prosecution where an indictment charged the defendant with “single act offenses” under a
“continuous crime” theory, thereby failing to give the defendant proper notice of the charges).
Nor does any possible double jeopardy problem arise from the manner in which this count was
pled. Defendant Flanagan could not be prosecuted at a later time for any technically separate
acts in connection with the non-arrest of Parker’s son because C.P.L. § 40.40 bars separate
prosecution of jointly prosecutable offenses. Furthermore, the Grand Jury charge clearly
distinguished subdivision one from subdivision two of the Official Misconduct statute.
POINT FOUR
DEFENDANTS’ MOTIONS TO SEVER ARE PREMATURE, AND, IN ANY EVENT, THIS COURT SHOULD CONSIDER A SINGLE TRIAL WITH TWO JURIES.______________________________________________
Defendants move to sever their trials from those of their co-defendants. All three
defendants argue that severance is required because a joint trial would lead to violations of
Bruton v. United States, 391 U.S. 123 (1968), and that each defendant has defenses that are
irreconcilable from that of their co-defendants. Defendants’ arguments for severance are, for the
most part, premature and their motions should be denied at this time.
First, defendants’ allegations that their defenses are "irreconcilable" are insufficient to
serve as a basis for severance. Defendants, in fact, all share the same defense: namely, that their
conduct in the Parker investigation did not violate any duty inherent in the nature of their duties
as law enforcement officers nor did they commit any unauthorized act relating to their positions
as law enforcement officers knowing that the act was unauthorized by the manner in which they
handled the criminal investigation of Parker’s son. Instead, it appears that their defenses are
actually completely compatible. Defendants all claim that they acted within their discretion by
failing to have Parker’s son arrested for the theft of stolen property and that they did not commit
these acts to benefit themselves or Parker. Thus, because defendants fail to provide this Court
with a reasoned, articulable basis upon which to grant the motion to sever, on this ground,
severance must fail.
Second, defendants Flanagan and Hunter contend that defendant Sharpe’s
videotaped statement, if entered into evidence by the People, would impermissibly implicate
them without affording them an opportunity to cross-examine Sharpe. People v. Bruton, 391
U.S. 123. This ground for severance, however, is premature. At this stage, the People have not
yet made any trial decisions about whether the statement will even be introduced into evidence.
Thus, the People request that this Court not decide the issuance of severance at this time for this
reason at this time.
In sum, there is no ground for severance. As the Court of Appeals has
recognized, the "preference for joint trials is clear," and "if proof against co-defendants is
supplied by the same evidence only the most cogent of reasons warrant a severance." People v.
Ricardo B., 73 N.Y.2d 228, 232-33 (1989), citing People v. Bornholdt, 33 N.Y.2d 75, 87 (1973).
Here, the case against all defendants involves a singular conspiracy that led to the indicted
charges. Moreover, the evidence presented will be the same at each of the defendants’ trials,
with all of the same witnesses having to be called at each trial, including experts in computer
forensics. Thus, whereas defendants have failed to set forth any "cogent reason" for severance at
this time, their motions to sever should now be denied.
If, however, at some juncture in this litigation the Court rules that severance is
appropriate, the People respectfully suggest that any concerns raised by defendants could be fully
addressed by conducting a single trial with two juries. People v. Irizarry, 83 N.Y.2d 557 (1994);
People v. Ricardo B., supra. The potential Bruton issue could be easily resolved with the use of
two juries. Such "partial" severance would serve to further the notion of judicial economy,
minimize the use of resources, minimize impositions on the witnesses, and most importantly,
defendants’ Bruton concerns would be alleviated.
POINT FIVE
DEFENDANTS’ SANDOVAL APPLICATIONS ARE PREMATURE (Responding to Defendants’ Motion, Point VI).
The People respectfully urge that this Court deny defendant's current applications for
Sandoval information. The applications, pursuant to People v. Sandoval, 34 N.Y.2d 371 (1974),
for the preclusion of evidence pertaining to defendants’ bad acts and criminal convictions are
premature and should be more properly made before the trial judge prior as the defendants’ prior
bad acts and convictions bear directly upon their credibility as a witnesses and would be of
assistance to the trial jury in determining their credibility. C.P.L. § 240.43; see People v.
Sandoval, 34 N.Y.2d 371.
The People are aware of the statutorily imposed obligation to notify defendants,
upon their request, of all specific instances of "prior uncharged criminal, vicious, or immoral
conduct" of which the People have knowledge and which they intend to use at trial for
impeachment purposes. See C.P.L. § 240.43. In fact, the People have begun to provide such
information to defendants in its response to defendants’ Demand for Discovery. Moreover, any
additional notifications will be made, pursuant to § 240.43 of the Criminal Procedure Law,
immediately prior to the commencement of jury selection.
Accordingly, defendants’ Sandoval applications should be denied in its entirety at
this time.
CONCLUSION
For the aforementioned reasons, this Court should deny defendants’ omnibus
motions.
Respectfully submitted,
KATHLEEN M. RICEDistrict Attorney Nassau County
STEPHEN ANTIGNANIBERNADETTE FORD
Assistant District Attorneys of Counsel