This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 13
The People &c.,
            Respondent,
        v.
William Flanagan,
            Appellant.




          Donna Aldea, for appellant.
          Yael V. Levy, for respondent.




DiFIORE, Chief Judge:
          Defendant was convicted, upon a jury verdict, of
conspiracy in the sixth degree (Penal Law § 105.00) and two
counts of official misconduct (Penal Law § 195.00 [1], [2]).    On
appeal, defendant primarily challenges his convictions on the

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bases of the legal sufficiency of the evidence and the fairness
of the trial.   We conclude that these claims lack merit and
affirm the order of the Appellate Division in all respects.
                                I.
          On May 19, 2009, shortly before Memorial Day weekend,
school authorities reported the larceny of over $3,000 of
electronic equipment from a high school (the High School) to the
Nassau County Police Department (NCPD).    That same day, an NCPD
patrol officer from the Seventh Precinct responded to the High
School's complaint and interviewed the principal.   This was one
of a string of equipment thefts at the High School that had
occurred throughout the 2008-2009 school year, all of which had
been reported to the NCPD.   As to this most recent theft, the
principal told the officer that the school's surveillance video
had captured a student, Z.P., on the High School premises on May
18 after school hours and without permission, and that witnesses
had seen Z.P. trying to gain entry to the auditorium where the
stolen equipment had been locked inside.
          The officer recorded the details of the principal's
complaint in a supporting deposition using form PDCN32B.    The
supporting deposition, which was sworn to by the principal and
signed by both the principal and the officer, plainly stated that
the victim wanted the perpetrator to be arrested.   On the back of
the supporting deposition, the officer wrote down NCPD case
report numbers associated with the prior thefts the High School


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had already reported.   In accordance with NCPD protocol, the
officer called in her case report so that the information could
be entered into the NCPD computer system and then turned in the
supporting deposition at the Seventh Precinct.   As the suspect
was not present at the scene, the patrol officer could not make
an arrest and the felony investigation, upon review, was assigned
to the detectives in the Seventh Precinct detective squad (the
Squad) for the purpose of conducting further "investigation and
[to] move towards making an arrest."
          In the meantime, the assistant principal informed both
Z.P. and his father, Gary Parker, that Z.P. was being suspended
for five days for stealing the equipment and that the school had
reported the larceny to the police.    Gary Parker was a long-time
benefactor of the NCPD who regularly entertained high-ranking
members of the department.   Due to Parker's connections, Z.P. had
obtained an internship with the NCPD that spring and, thus, was a
department employee at the time the crime was reported.
          A detective, who was "catching cases" on May 19 when
the Squad received the police report of the larceny through the
department's computer system, then created a case jacket,
assigned a detective division number to the case, and assigned
himself the case.   That same day, however, a lieutenant, who was
the commanding officer of the Squad, learned that Z.P. was an
NCPD employee and that his father was closely connected with the
"upper echelon" in the department, meaning "chiefs and the


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commissioners."    The lieutenant placed a call to Internal
Affairs, which directly reported to the Police Commissioner and
handled all cases involving department employees, to refer the
case.   Hours later, she received a call from Deputy Chief of
Patrol John Hunter, who did not work in Internal Affairs but
nonetheless outranked her, informing her that the case would stay
with the Squad.    Her response was "Yes, sir."   Concerned about
the attention this case already appeared to be receiving, the
lieutenant reassigned the case to Detective Bruce Coffey who had
an established relationship with school authorities and who the
lieutenant believed was better at crossing his t's and dotting
his i's.
            At the behest of the detective sergeant who usually
supervised Coffey, the lieutenant allowed Detective Sergeant Alan
Sharpe to serve as Coffey's supervisor on this case.     Sharpe, who
was second in command at the Squad, then instructed Coffey to
meet with the principal.    Sharpe replaced the lieutenant and
became the Squad's commanding officer days later on May 27.
Sharpe explained to Coffey that "higher-ups" at the NCPD had been
calling about the case and these "higher-ups" did not want an
arrest.    Sharpe directed Coffey to obtain a statement of
withdrawal from the victim, which would serve to drop the
complaint and close the case.    Coffey followed the order of his
supervisor.    On May 21, Coffey went to the High School where he
met with the principal and spoke with two other school employees


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who were witnesses to the crime.    The principal was "adamant"
about having Z.P. arrested and Coffey, conflicted as to his
supervisor's directives to dispose of the case and the victim's
wishes to proceed with it, did not present the principal with the
withdrawal form.   Afterwards, Coffey communicated the principal's
position to Sharpe and told Sharpe he was unable to obtain the
withdrawal.1
            In advance of the upcoming Memorial Day weekend, Gary
Parker also met with the principal.      Parker informed her that
Z.P. had confessed to the theft, but implored her to speak to the
school district Superintendent about not having Z.P. arrested.
The principal emailed Detective Coffey asking the police to place
the investigation on hold until she was able to confer with the
Superintendent.    Parker also called a friend of Z.P.'s, who had
received stolen property from his son, and directed him to
deliver this property to the police.      The friend, along with
another individual who had received some of the stolen property
from Z.P., brought the property to the Fifth Precinct and told
the police that it was stolen.    The police obtained statements
from these witnesses.   Sharpe sent the detective originally
assigned to the case to retrieve this property from the Fifth
Precinct.   The detective did so and placed it in the Squad's


     1
       The withdrawal form is on NCPD letterhead and states in
part, "the Detectives have advised me that they are prepared to
proceed with this case. However, I no longer wish to prosecute
. . . ."

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storage locker without logging it in the Squad's evidence log,
contrary to normal protocol.    Parker also sought the assistance
of his friend, Deputy Chief of Patrol Hunter.   On that Saturday,
Hunter asked a police officer, who had nothing to do with the
larceny investigation, but was the principal's nephew, to speak
with his aunt about the case.   The officer, after deliberation,
informed Hunter that he would not call his aunt.
          On the Tuesday after Memorial Day, the principal, the
Superintendent, and the attorney for the school district made the
decision that, in view of the fact that in excess of $11,000 of
equipment had been stolen from the school, the High School would
press charges and have Z.P. arrested.   Coffey, aware of the
victim's desire to proceed with the case, nonetheless complied
with the order of his supervisor, Detective Sergeant Sharpe, and
declined to investigate the matter any further or effectuate an
arrest.   To this end, Coffey never preserved, obtained, or viewed
the surveillance video in the High School's possession.    He also
never invoiced, vouchered, or photographed the stolen property in
the Squad's possession, as was required by department protocol,
and left this evidence of a crime in the Squad's locker instead
of securing the evidence in the NCPD Property Bureau.2    Although


     2
       Leaving the evidence unvouchered in the Squad's locker
effectively bypassed various police protocols that required
notice to the interested parties, including the department. A
signed "Property Bureau Invoice" (PDCN106) form was required to
be filed to voucher any property, not just evidence of a crime,
in the Property Bureau. Moreover, once the physical items were

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Coffey conducted interviews with two school employees on May 21,
he did not prepare any written statements of these witnesses or
even take notes during the interviews.     Coffey's omissions and
refusal to act were done with the aim of preventing Z.P.'s
arrest.    Coffey understood this to be the goal of his supervisor,
Sharpe, who made it abundantly clear to Coffey that there would
be no arrest in this case and that Coffey was to obtain a
withdrawal of prosecution.
           On June 16, Sharpe and Hunter made arrangements for the
principal and another school employee to meet with a detective
who was not involved in Z.P.'s case in order to obtain the stolen
property in the Squad's possession.     This detective, a 15-year
veteran, after speaking with Sharpe, presented the principal with
the evidence he found unvouchered in the Squad's locker and asked
her to sign two documents.   The first was a document
acknowledging receipt of the property.     The second was a
withdrawal of prosecution form.   Upon reviewing the documents,
the principal told the detective that she would not sign the
withdrawal and that she did not have authority to drop the
charges.   Upon learning that the High School did not want to drop
the case, the detective told the principal that he would need to
bring the property back to the precinct and she would have to
follow up with the detective assigned to the case.     Then, the


in the custody of the Property Bureau, a "Property Disposition
Card" (PDCN83) and a "Notice to Claimant Card" (PDCN110) "must
accompany ALL property which is to be destroyed or returned."

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detective stepped out of the room to call Sharpe, who had
directed him to obtain signatures on both forms, and informed
Sharpe that the High School had refused to abandon their
complaint.    Sharpe ordered the detective to bring the property
back to the precinct.    The detective complied.
            Two days later, Gary Parker encountered defendant
William Flanagan at the U.S. Open.      Parker and defendant knew
each other well and had socialized on many occasions in the past.
At this time, defendant was the detective sergeant in charge of
Asset Forfeiture.    On or about July 14, however, defendant was
appointed by the Police Commissioner to Second Deputy
Commissioner for Special Projects, one of the highest ranks in
the NCPD.    Parker explained the situation with his son and
enlisted defendant's help in achieving a favorable resolution,
which Parker admitted was no prosecution or arrest of his son.
Defendant told Parker that he would look into the matter and see
what he could do.
            A few days later, Parker followed up with defendant by
email.   Parker asked if defendant needed any further information
from him, to which defendant responded "I have all I need" and
noted that he had "already put a couple of pieces in motion."
Phone records revealed that defendant then immediately called the
Seventh Precinct and had a ten minute phone conversation with
someone there.    The following Monday, defendant received an email
from Sharpe stating that Sharpe was still waiting for a call back


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from the High School regarding the return of property the two of
them had discussed the previous week.    Defendant responded,
"[t]hanks, talk to you soon."
            Over the course of the summer, Coffey was pressured by
Sharpe to return the stolen property and obtain a withdrawal of
prosecution from the High School.    Failed attempts to arrange the
return of the stolen property were reflected in a series of
emails.   Parker emailed defendant throughout the summer seeking
updates and expressing concern with how the case would be
resolved.   Defendant responded to one such email with "I have no
doubt about the resolution."    Additionally, the principal
expressed frustration with how the department was handling the
case.   In one email she remarked, "I assume that [Z.P.] has not
been arrested, since it is clear that the police want to bury
this case."
            At the end of the summer, Coffey made arrangements to
meet with the principal and another school employee on September
1 to return the stolen property.    At this meeting, the principal
was again presented with the property and the same two documents
brought by another detective to the June 16 meeting, the property
receipt and withdrawal of prosecution form.    Both the principal
and the other employee signed the receipt, but the principal
expressed outrage at being presented with the withdrawal and told
Coffey that the High School was not dropping the charges.     Coffey
left the evidence with the principal and returned to the precinct


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with the unsigned withdrawal.
            About one week later, Coffey received an email from
Sharpe which read, "I NOTICED THE LAPTOPS AND PROJECTOR GONE FROM
PROPERTY LOCKER.    WERE THEY RETURNED TO THE SCHOOL DISTRICT DUE
TO THEM ELECTING NPA?"3    Coffey later informed Sharpe that the
property had been returned, but that the principal had refused to
sign the withdrawal.    Despite Sharpe's directive to Coffey to
keep trying to get the principal to sign the withdrawal, Coffey
did not comply and had no further interaction with anyone at the
High School after the September 1 return.
            Around this same time, Parker emailed defendant to
inquire about whether the property had been returned.     Defendant
indicated that it had.    Parker responded with "THANK YOU!!!!!!"
to which defendant replied, "[d]e nada family."     Within days of
this exchange, Parker's wife sent defendant gift cards.     In
response to Parker's email inquiry about defendant's receipt of
the gift cards, defendant said they were "[o]ver the top."
            Later in the fall, both defendant and Coffey were at a
police retirement party.    While Coffey was sitting at a table
with other members of the Squad, defendant approached Coffey,
shook his hand, and said, "[t]hank you."     Coffey responded,
"[t]hank you.    You're welcome."   Defendant did not shake hands
with anyone else at the table and Coffey understood that
defendant had thanked him for his involvement with Z.P.'s case.

     3
         Coffey testified that "NPA" stood for "no police action."

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           One year later, in September 2010, Coffey was preparing
to retire.   Aside from his initial meeting at the High School on
May 21, 2009, Coffey had purposefully done no investigation on
this case, had not followed-up on any leads, and had not arrested
Z.P.   Nonetheless, Coffey had left the case marked open in the
department's computer system.    Prior to his departure from the
department, Coffey prepared a false report to close out the case.
Specifically, Coffey falsely represented that the principal did
not want to move forward with the case and was no longer in need
of police assistance.   Sharpe, as Coffey's case supervisor, had
to review and sign off on this statement.     Sharpe instructed
Coffey to indicate that the principal "[did] not want to see
[Z.P.] arrested."   Coffey complied with this directive, though he
knew that this statement was false.      On September 19, 2010, the
case was officially closed.
                                 II.
           In March 2011, a newspaper published an article about
the thefts at the High School, which resulted in the Nassau
County District Attorney launching an investigation into the
handling of Z.P.'s case.   Within days of the article, Gary Parker
sent an email to defendant explaining that he was going to
distance himself from the NCPD for a time and stating that he
hoped defendant would "understand" and "support" his decision to
do so.   Defendant conveyed his support and replied, "[l]uv you
dude.:) Remember what I told you, 'you're family'.     We take care


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of our own."   Parker responded, "[t]hanks. A little separation
. . . ."
           As relevant to this appeal, after a seven-and-a-half-
month grand jury proceeding, defendant was indicted, along with
Deputy Chief of Patrol Hunter and Detective Sergeant Sharpe, for
conspiracy in the sixth degree and two counts of official
misconduct.4   As to the crime of conspiracy, the indictment
alleged that on or about and between May 19, 2009 and September
19, 20105 these individuals
           "with the intent to engage in conduct that
           constituted the crime of Official Misconduct,
           agreed with one or more persons, including
           the father of a target of a felony
           investigation . . . to return recovered
           stolen property to a cooperative complainant
           in an open felony investigation in an effort
           to justify and ensure the non-arrest of the
           target whose arrest would have otherwise been
           warranted, in order to benefit the target's
           father, a financial and personal benefactor
           of members of the Nassau County Police
           Department."
As to official misconduct, the indictment alleged that, on or
about and between June 18, 2009 and September 10, 2009,6



     4
       Defendant was also indicted for receiving reward for
official misconduct in the second degree. He was acquitted of
this charge at trial.
     5
        These dates correspond with the day the High School
reported the theft to the NCPD and the day Coffey and Sharpe
filed the false report to close out the case.
     6
       These dates correspond with the day defendant first spoke
with Gary Parker about Z.P.'s case at the U.S. Open and the day
Parker's wife mailed two gift cards to defendant.

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defendant committed official misconduct under a theory of
malfeasance by ordering subordinates to return stolen property
that had been recovered by the NCPD in an open criminal
investigation in an effort to justify the non-arrest of Z.P.,
whose arrest would have otherwise been warranted.    The indictment
further alleged that on or about and between June 18, 2009 and
September 11, 20097 defendant committed official misconduct under
a theory of nonfeasance by ensuring that Z.P. would not be
arrested despite the fact that there was probable cause to arrest
him and a willing complainant, in violation of defendant's
inherent duties as an officer as well as of NCPD policy.
          Prior to trial, defendant, pursuant to CPL 210.35 (5),
moved to dismiss the indictment on the ground that the integrity
of the grand jury proceedings had been impaired.    The trial court
denied this motion, concluding that the exceptional remedy of
dismissal was not warranted.   Defendant then proceeded to trial.
Defendant's indicted coconspirators, Hunter and Sharpe, who
pleaded guilty, did not testify at defendant's trial.    The
unindicted coconspirators -- Coffey, who had entered into a
cooperation agreement with the District Attorney, and Gary Parker
-- both testified.   Defendant did not testify.   Defendant was
convicted of the conspiracy count as well as both official
misconduct counts.


     7
       On September 11, defendant confirmed his receipt of the
two gift cards.

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          Prior to sentencing, defendant moved to set aside the
verdict on the grounds that the People had not presented legally
sufficient evidence and that defendant was denied his right to a
fair trial.    The trial court denied this motion, concluding that,
viewing the evidence in the light most favorable to the People,
legally sufficient evidence was presented and that the record as
a whole did not establish that defendant was denied a fair trial.
Defendant was sentenced to a sixty-day prison term for conspiracy
to be served concurrently with a five-month term for the two
official misconduct convictions (three months of which could be
satisfied with community service).      He was also required to pay a
$1,000 fine.    The execution of judgment was stayed pending the
resolution of defendant's appeal.
          On appeal, the Appellate Division affirmed defendant's
convictions (132 AD3d 693 [2d Dept 2015]).     The Appellate
Division held that the evidence was legally sufficient to support
the convictions.    The court further held that defendant's denial
of a fair trial claims were either unpreserved, abandoned, or
lacked merit.    Moreover, the Appellate Division concluded that
any error in this regard was harmless.     Defendant's claim that
the grand jury process was defective was found to be without
merit.
          A Judge of this Court granted defendant leave to appeal
(26 NY3d 1039 [2015]).    We now affirm.




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                               III.
          "The standard for reviewing the legal sufficiency of
evidence in a criminal case is whether after viewing the evidence
in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the
crime beyond a reasonable doubt" (People v Contes, 60 NY2d 620,
621 [1983] [internal quotation marks and citation omitted]).
Here, when viewed in this light, the evidence is sufficient to
establish the elements of the crimes of official misconduct under
both theories as well as of conspiracy in the sixth degree.
          Official misconduct is codified in Penal Law § 195.00.
Subsection one of the statute pertains to official misconduct by
way of malfeasance and subsection two pertains to nonfeasance.
In enacting the statute, the legislature "replaced more than 30
prior crimes, all of which dealt with specific malfeasance and
nonfeasance in the accomplishment of official duties" (People v
Feerick, 93 NY2d 433, 445 [1999]).
          Penal Law § 195.00 contains two mens rea elements,
requiring both an intent to obtain a benefit or deprive another
of a benefit8 and knowingly acting or refraining from acting (see
Feerick, 93 NY2d at 446).   The double mens rea prevents the
criminalization of official actions, or lack thereof, due to


     8
       A "benefit" is defined as "any gain or advantage to the
beneficiary and includes any gain or advantage to a third person
pursuant to the desire or consent of the beneficiary" (Penal Law
§ 10.00 [17]).

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"mere errors of judgment" (id. at 448).    This exacting standard
is in keeping with the legislature's goal of criminalizing
"flagrant and intentional abuse of authority by those empowered
to enforce the law," rather than "good faith but honest errors in
fulfilling one's official duties" (id. at 445).    Importantly, the
two mens rea requirements were "not [meant] to limit in any
substantive way the types of conduct that would be culpable" (see
id. at 448).   Moreover,
          "[p]roof that a public servant intended to
          receive a benefit along with proof that he or
          she also knew the acts were 'unauthorized'
          negates the possibility that the misconduct
          was the product of inadvertence,
          incompetence, blunder, neglect or dereliction
          of duty, or any other act, no matter how
          egregious, that might more properly be
          considered in a disciplinary rather than a
          criminal forum"
(id. [referencing commentary of the commission that drafted the
current official misconduct statute][additional emphasis added]).
               A.   Official Misconduct for Malfeasance
          In order to be guilty of official misconduct for
malfeasance a defendant (1) must commit an act that constitutes
an unauthorized exercise of his or her official functions, (2)
knowing that the act is unauthorized, (3) with the intent to
obtain a benefit or deprive another of a benefit (Penal Law §
195.00 [1]).   Here, defendant -- eschewing the intrinsic purpose
of his own department's protocols and Penal Law § 450.10 --
argues that he did not commit an act that was an unauthorized
exercise of his official functions because the police have the

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unfettered authority to return stolen property in their
possession to its rightful owner.    The People counter that the
return of the stolen property in this case was an unauthorized
exercise of defendant's official functions because it violated
departmental protocol and state law (Penal Law § 450.10)
governing the return of evidence in a pending criminal
investigation or matter and was done for the singular corrupt
purpose of averting Z.P.'s arrest.
           We disagree with defendant's assertion that he cannot
be guilty of malfeasance because the return of stolen property to
its owner is an act that is inherently authorized.    However, we
also disagree with the People's assertion that the act of
returning the stolen property to the High School was unauthorized
on the sole basis that it was prompted by a corrupt motive or
purpose.   Instead, we clarify that the same act may be authorized
in some cases, but unauthorized in others, based on a
consideration of all the surrounding circumstances.    Evidence of
these circumstances may include, among other things, the manner
in which the act was undertaken, the governing guidelines, rules,
and protocols, as well as the actor's motive.
           For example, in People v Feerick (93 NY2d 433 [1999]),
police officers sought to recover a missing police radio --
something they indeed had the authority to do.    However, because
the officers recovered the radio by entering and searching an
apartment and detaining the occupants, all without the occupants'


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consent and without a warrant that the officers had been directed
to obtain, we concluded that their actions constituted an
unauthorized exercise of their official functions (id. at 448).
We held that "defendants -- although purportedly acting under the
authority of the Police Department and while on duty -- were not
pursuing the radio in furtherance of prescribed law enforcement
duties, but rather in violation of orders and for their own
benefit" (id. at 449).
          Here, the evidence is sufficient to establish that
defendant, along with his accomplices, used his position of power
to orchestrate the return of unvouchered evidence to the school
authorities with the goal of terminating the open felony
investigation of his friend Gary Parker's son and preventing the
son's imminent arrest.   Defendant became involved in the return
effort at Parker's behest a mere two days after a veteran
detective, who was not part of the conspiracy, refused to leave
the unvouchered evidence with the victim after the principal made
clear she was not withdrawing the criminal allegations in this
open felony investigation.   Defendant communicated with both
Parker and the Squad's then-commanding officer, Sharpe, and
Sharpe continued to issue directives to Coffey.   Coffey testified
that he knew that as part of his official duties he was supposed
to investigate the felony larceny, knew he had ample basis to
arrest Z.P., and knew he was responsible for vouchering the
stolen property as well as securing the surveillance video of the


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crime.   Coffey admittedly evaded these duties because his
supervising officer, who was acting in furtherance of the
conspiracy, made clear that there would be no arrest or
prosecution in this case.
          Coffey's understanding of NCPD procedures with respect
to handling evidence in an open felony investigation was
corroborated by the testimony of two other detectives on the
Squad as well as by that of the lieutenant who preceded Sharpe in
the command of the Squad.   Both detectives explained that
whenever the police obtain property a PDCN106 (also known as a
voucher) must be filled out and the property along with the
voucher must be delivered to the custody of the Property Bureau.
One of the detectives also testified that notice of the return of
property, which constitutes evidence in an open case, must be
given to the District Attorney.   Further, he testified that a
DD89 ("District Attorney's release form for property") must be
filled out and signed by the District Attorney before this
property is returned. To this point, the lieutenant testified
that there is an "onus on the police to preserve evidence so that
if we go forward in a case it's available to be reviewed in that
case."   Moreover, she testified that before returning property in
an open case there are set procedures, which include taking
photographs of the property9 and reaching out to the District

     9
       Although the record contains two Polaroid photographs,
Coffey, who was the investigating detective and responsible for
the evidence, testified that he did not take these photographs

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Attorney, that must be followed.
          Preservation of evidence, which is the very goal of
Penal Law § 450.10, is undertaken to maintain the evidence's
integrity for the prosecution of the case while affording due
process to the defendant by providing his attorney with the
opportunity to review the evidence before its return to the
victim.   In this case, the District Attorney was kept in the dark
about the existence of the felony investigation.   Additionally,
Z.P.'s attorney, who was involved in negotiations with the High
School, was never contacted by the police.   Defendant's
accomplices did not comply with the notice and other requirements
of the statute or department protocols.   Thus, the trial
testimony is sufficient to establish that the return of the
evidence of the crime -- under these specific circumstances,
where the applicable statute and department protocols were not
followed -- was not an authorized exercise of official functions,
that defendant knew that the official actions taken were
unauthorized, and that these actions were undertaken with the
intent to obtain a benefit.
          Defendant's argument to the contrary ignores the fact
that, by the design of defendant and his accomplices, the return



and did not know their source. Indeed, Coffey found the
photographs in the box containing the unvouchered evidence that
was stored in the Squad's locker. It does not appear that these
photographs were taken in accordance with NCPD policy on
vouchering evidence.

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of evidence to the victim in this open felony case was done to
avoid the procedural triggers designed to alert other members of
law enforcement with official interests in the safekeeping of
evidence to the unauthorized acts of the coconspirators.    As in
Feerick, it is defendant's knowing participation in a
"purportedly" authorized official action, which was actually done
in blatant violation of department protocols and state law,
coupled with the intent to thwart arrest and prosecution of a
suspect, all to the benefit of the suspect's father, that
permitted the jury to rationally conclude there was legally
sufficient evidence to convict defendant of official misconduct
under a theory of malfeasance.
             B.   Official Misconduct for Nonfeasance
          Turning to official misconduct for nonfeasance, to be
guilty of this crime a defendant (1) must knowingly refrain from
performing a duty imposed by law or clearly inherent in the
nature of his or her office (2) with the intent to obtain a
benefit or deprive another of a benefit (Penal Law § 195.00 [2]).
Defendant argues that this Court should adopt a bright-line rule
that nonfeasance cannot lie where a public servant has failed to
perform a discretionary -- as opposed to a mandatory -- duty.
Conversely, the People argue that defendant, along with his
police accomplices, had a mandatory duty inherent in the nature
of their office to follow the normal path of investigation of a
sworn complaint of a felony from a cooperative victim and make an


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arrest when there was ample probable cause to believe Z.P.
committed the larceny.
          Many of the duties imposed on the vast category of
public servants covered by the statute are imbued with some
degree of discretion.    There is nothing in the plain language of
the statute that suggests the word "duty" is only meant to
encompass mandatory duties in which there is absolutely no room
for the exercise of discretion.   Indeed, Black's Law Dictionary
has separate entries for "duty" and "discretionary duty,"
intimating that a discretionary duty is but one type of duty
(compare Black's Law Dictionary [10th ed 2014], duty with id.,
discretionary duty).    Instead, the plain language of the statute
demonstrates that it is not the mandatory or discretionary nature
of the failure to act that satisfies the duty element of
nonfeasance, but rather the causal connection of the failure to a
"flagrant and intentional abuse of authority by those empowered
to enforce the law" that does (Feerick, 93 NY2d at 445).
Therefore, "[w]e reject this narrow interpretation of the statute
and, in accordance with the statutory mandate with respect to
interpretation . . . [we] hold that the crime of official
misconduct may occur even where the public official's duty is
couched with discretion" (People v Mackell, 47 AD2d 209, 217 [2d
Dept 1975], affd 40 NY2d 59 [1976]).
          Certainly, a public servant's knowing refusal to
perform a mandatory action coupled with an intent to obtain a


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benefit constitutes nonfeasance.   However, when a public servant,
with the intent to obtain a benefit, knowingly refuses to perform
a discretionary duty, the performance of which is so obviously
fundamental to accomplishing the goals of the public servant's
office, that refusal cannot legitimately be understood to be an
exercise of discretion; rather, it constitutes an abuse of
discretion, which equates to nonfeasance.    In such a situation,
the public servant has, in essence, abdicated his or her sworn
duty.
          Defendant's contention -- that because police officers
have a measure of discretion in performing their sworn duties to
arrest and investigate, as a matter of law he cannot be said to
have knowingly refrained from performing these duties --
completely undermines a statute intended to criminalize public
corruption.   We readily acknowledge that the scope of a police
officer's duties at the arrest and investigation stages involves
the exercise of reasonable discretion.    Here, however, Coffey
admitted he did not exercise his discretion in failing to
investigate the case and arrest Z.P.   Instead, he complied with
the unsavory directives of his accomplice supervisors, following
the orders of those of a higher rank in his department, and
knowingly failed to perform his duties.    Coffey knew that a
felony had been committed at the High School by a suspect
identified by the victim, but he did not take written statements
from known witnesses, view or obtain a copy of the surveillance


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video that showed the suspect entering and leaving the building,
voucher the evidence, or follow up on the investigation, despite
having a cooperative complainant.    In a conspiracy, the actions
of a coconspirator, like Coffey, are attributable to the other
conspirators (see People v Caban, 5 NY3d 143, 148 [2005]; People
v Salko, 47 NY2d 230, 237 [1979]).      Similarly, because defendant
was charged as both a principal and an accomplice, he is
criminally liable for the conduct of any other person if he acted
with the mental culpability required for committing the
underlying offense and solicited, requested, commanded,
importuned or intentionally aided that person to engage in
conduct constituting the offense (see Penal Law § 20.00).     The
officers here had no valid reason not to move forward with the
investigation, and defendant, as an accomplice with a shared
intent, can be held criminally responsible for the purposeful
inertia of his accomplices.
          Pivotally, the evidence was sufficient to establish
that the termination of Z.P.'s case -- which before defendant's
accomplices got involved had been moving along in the normal
investigative process toward arrest and prosecution -- could not
be attributed to any legitimate reason, such as an uncooperative
victim, a lack of evidence, or the District Attorney's decision
not to prosecute the case.    Contrary to defendant's claim, this
was not a failure of an officer to perform a discretionary duty,
but a disavowal of a sworn duty by a public official, as


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defendant and his accomplices sought to avoid the inexorable
result that performance of such duty would have produced.    Thus,
the evidence was sufficient to prove that defendant committed the
crime of official misconduct by nonfeasance when he directed his
accomplice officers to refrain from performing their fundamental
duty to investigate a crime, a duty inherent in the nature of
their office.
          We also reject defendant's contention that the officers
here did not "refrain[] from performing [] dut[ies]" as this
phrase is understood in Penal Law § 195.00 (2) because the
adoption of such a holding would upset the balance in the
criminal justice system that exists between the duty of the
police officer and that of the District Attorney (NY Const, art
XIII, § 13; County Law § 700; see generally Matter of Johnson v
Pataki, 91 NY2d 214 [1997]).   The constitutional and statutory
authority to arrest has reasonable and necessary parameters and
does not bestow unfettered discretion on the police to purposely
stop the investigation of a legitimate felony complaint in an
attempt to prevent the prosecution of a known suspect in order to
obtain a benefit for the suspect's father.
          Thus, in sum, we hold that on this record the jury
could have rationally concluded that the elements of official
misconduct by nonfeasance were established by proof that
defendant, acting alone and with others, in his supervisory
capacity, caused the abdication of the inherent duty to


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investigate a felony complaint in order to prevent the arrest and
prosecution of Z.P., where there was overwhelming evidence of the
crime, all to the benefit of the suspect's father.
               C.   Conspiracy in the Sixth Degree
          Defendant's next contention -- that there was legally
insufficient evidence to support his conspiracy conviction -- is
similarly unavailing.   To be guilty of conspiracy in the sixth
degree, a defendant (1) must "with intent that conduct
constituting a crime be performed" (2) "agree[] with one or more
persons to engage in or cause the performance of such conduct"
(Penal Law § 105.00 [emphasis added]).
          "The crime of conspiracy is an offense
          separate from the crime that is the object of
          the conspiracy. Once an illicit agreement is
          shown, the overt act of any conspirator may
          be attributed to other conspirators to
          establish the offense of conspiracy and that
          act may be the object crime. But the overt
          act itself is not the crime in a conspiracy
          prosecution; it is merely an element of the
          crime that has as its basis the agreement.
          It is not offensive to permit a conviction of
          conspiracy to stand on the overt act
          committed by another, for the act merely
          provides corroboration of the existence of
          the agreement and indicates that the
          agreement has reached a point where it poses
          a sufficient threat to society to impose
          sanctions"
(People v McGee, 49 NY2d 48, 57-58 [1979] [internal citations
omitted]).
          As we have already concluded that the evidence, when
viewed in the light most favorable to the People, was sufficient
to prove the crime of official misconduct beyond a reasonable

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                              - 27 -                         No. 13

doubt, the first element of conspiracy has been satisfied.    We
further conclude that the second element of conspiracy has been
satisfied as there was sufficient evidence of the coconspirators'
agreement to commit the crime of official misconduct in this
case.   The existence of a conspiracy was supported by the trial
testimony of the coconspirators, by defendant's admissions in his
emails with Sharpe and Parker, and by abundant circumstantial
evidence, which, when viewed in the light most favorable to the
People, support the jury's finding.    As we have long observed,
"[i]n prosecutions for the crime of conspiracy the People's case
must usually rest upon circumstantial evidence.    Defendants, with
the education, training and experience of the defendants in this
case, do not conduct criminal conspiracies by making written
records of their acts" (People v Seely, 253 NY 330, 339 [1930]).
                                IV.
           Lastly, defendant claims that he was denied his right
to a fair trial because the trial court improperly admitted into
evidence, pursuant to the coconspirator exception to the hearsay
rule, coconspirator hearsay statements made in furtherance of the
conspiracy but prior to defendant joining the conspiracy and
after defendant's active participation in the conspiracy ceased.
This is an issue of first impression in our Court.    We now hold
that when a conspirator subsequently joins an ongoing conspiracy,
any previous statements made by his or her coconspirators in
furtherance of the conspiracy are admissible against the


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conspirator pursuant to the coconspirator exception to the
hearsay rule.   This holding is in line with precedent of the
Supreme Court of the United States, as well as with the vast
majority of federal circuit courts, which have held, pursuant to
the Federal Rules of Evidence, that "previous statements made by
co-conspirators are admissible against a defendant who
subsequently joins the conspiracy" (United States v Brown, 943
F2d 1246, 1255 [10th Cir 1991] [observing that First, Second,
Third, Fourth, Fifth, Seventh, Eighth, Ninth, and Eleventh
Circuits have all adopted this "prevailing view"]; see United
States v United States Gypsum Co., 333 U.S. 364, 393 [1948]
[holding the same prior to the adoption of the Federal Rules of
Evidence]).   We agree with the rationale for this rule expressed
by the Second Circuit in United States v Badalamenti (794 F2d 821
[2d Cir 1986]): "a new recruit can be thought to have joined [the
conspiracy] with an implied adoption of what had gone on before
to enhance the enterprise of which he is taking advantage" (id.
at 828 [internal quotation marks omitted]).   Here, that is
certainly the case where defendant, a high ranking officer in the
NCPD, joined the conspiracy after a discussion with coconspirator
Parker in which Parker informed defendant of what had transpired
and enlisted his help to prevent the criminal case from
proceeding against Z.P.
          We further conclude, in line with federal case law,
that statements made after a conspirator's alleged active


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involvement in the conspiracy has ceased, but the conspiracy
continues, are admissible unless this conspirator has
unequivocally communicated his or her withdrawal from the
conspiracy to the coconspirators (see United States v Brown, 332
F3d 363, 373-374 [6th Cir 2003] ["The defendant carries the
burden of proving withdrawal, and must show that he took
affirmative action to defeat or disavow the purpose of the
conspiracy.     Without such action, liability continues for all
actions in furtherance of the conspiracy by other conspirators"
[internal quotation marks and citation omitted]]; see also United
States v Moore, 651 F3d 30, 90 [DC Cir 2011] [concluding the
defendant bears burden of proving withdrawal in line with
holdings of the Second, Fifth, Sixth, Tenth, and Eleventh
Circuits]).     Here, defendant makes no argument that such a
communication was made.     Therefore, we conclude that the trial
court made no error in admitting any of the coconspirator
statements.
             We hold that defendant's remaining contentions lack
merit.
             Accordingly, the order of the Appellate Division should
be affirmed.
*   *    *     *   *   *   *   *     *      *   *   *   *   *   *   *   *
Order affirmed. Opinion by Chief Judge DiFiore. Judges Rivera,
Abdus-Salaam, Stein, Fahey and Garcia concur. Judge Wilson took
no part.

Decided February 9, 2017

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