People v. Feerick, 1999 N.Y. Int. 0091 (June 8, 1999).

OFFICIAL MISCONDUCT - POLICE OFFICERS

CRIMINAL PROCEDURE - ROSARIO MATERIAL - REOPENING OF KASTIGAR HEARINGS

CRIMINAL PROCEDURE - WITNESSES - IMMUNITY FROM PROSECUTION


ISSUES & DISPOSITIONS

Issues

1. Whether the "official misconduct" statute, Penal Law § 195.00[1], applies only to venal misconduct.

2. Whether determining the "unlawfulness" of a police officer's official misconduct is an appropriate charge to a jury.

3. Whether a "stop and frisk" by a police officer is permissible only in public places.

4. Whether prosecution's failure to turn over relevant Rosario material requires a de novo Kastigar hearing.

5. Whether CPL 190.40 confers immunity from prosecution for charges arising out of incidents that have been fabricated by the person giving testimony.

Dispositions

1. No. The statute applies to any misconduct where the official knew that his acts were an "unauthorized exercise of his official functions" so as to obtain a benefit; it does not matter whether the benefit involved some gain other than graft or financial advantage.

2. Yes. Provided that the judge clearly links the charge of unlawfulness to the "unauthorized exercise of an official function" element of Penal Law § 195.00[1], and carefully draws the instructions as to the crime charged, the charge does not pose a significant risk of misleading a jury.

3. No. A police officer justifiably present in a private dwelling may frisk an occupant under the reasonable belief that his or her safety is in jeopardy.

4. No. Although a Rosario violation is ground for a new hearing, that hearing need only be a reopening of the old hearing to the extent necessary to explore the contents of the Rosario materials and issue (if necessary) a new Kastigar ruling.

5. No. Fabricated transactions do not confer immunity under CPL 190.40.

SUMMARY

New York City police officers forcibly entered the apartments of persons they suspected were in possession of a police radio. The officers drew their weapons on the suspects, destroyed their property, and made numerous threats. Officers confiscated 591 vials of crack cocaine from one suspect, Stokes, and promised not to prosecute him for the drugs if he would give them the radio. Although Stokes did not give the officers what they wanted, an unidentified person turned the radio over to the police department later that day. Meanwhile, one of the officers vouchered Stokes' vials of crack, falsely indicating in the paperwork that they had been recovered in an alley where Stokes had dropped them as he tried to elude police.

Following an Internal Affairs Division (IAD) investigation of the incident, the officers were indicted and convicted of several criminal offenses, including official misconduct and falsification of business records. One officer was also convicted of perjury for false testimony he had given to a grand jury in a pre-indictment hearing regarding Stokes' arrest. Defendants moved to vacate these convictions on the ground that the prosecution had used immunized testimony at trial. Supreme Court denied the motion, and defendants appealed both their convictions and the denial of the motion to the Appellate Division.

On appeal, defendants advanced yet another argument--that their convictions had rested upon evidence from pre-indictment IAD worksheets which had not been disclosed at a pre-trial Kastigar hearing. The Appellate Division directed the hearing court to reopen the hearing and determine whether there were Rosario violations. The hearing court discovered six undisclosed documents which should have been turned over to the defense, but concluded that the convictions had not been based on this evidence. Defendants then brought the whole matter- -their direct appeal and their appeal from the denial of the motion to vacate--back before the Appellate Division, which affirmed the convictions, one justice dissenting in part.

The Court of Appeals heard six arguments on appeal of this matter: (1) that defendants' convictions for official misconduct rested on insufficient evidence; (2) that the trial court had erred in two of its instructions to the jury--one relating to the "unlawfulness" under the official misconduct statute, the other relating to a mistaken instruction that police may stop and frisk a suspect only in a public place; (3) that the Rosario violations should have entitled defendants to a de novo Kastigar hearing; (4) that there were additional Rosario materials, beyond the six documents found at the Kastigar rehearing, which the prosecution should have turned over; (5) that, accordingly, the hearing court made the wrong Kastigar determination; and (6) that the officer convicted of perjury should have been immunized under CPL 190.40 against convictions arising from transactions regarding which he had testified.

The Court concluded "[1] that the evidence was sufficient to support the official misconduct . . . convictions; [2] that the jury charges were adequate under the circumstances; [3] that reopening the Kastigar hearing rather than granting a new one was proper; [4] that defendants' trial claims of Rosario and Kastigar violations are unpreserved [because not raised at trial]; [5] that evidence in the record supported the Kastigar determinations, which, being mixed questions of law and fact, [were] not further reviewable; and finally, [6] that [the officer convicted of perjury] was not entitled to immunity from prosecution based on his Grand Jury testimony."