The defendant, Oscar Sandino, is charged with one count of Official Misconduct (Penal Law ["PL"] § 195.00(1)).^[FN1]

The defendant moves to dismiss the accusatory instrument on double jeopardy grounds pursuant to CPL §§ 40.20 and 40.30 and the New York State Constitution Article I, Section 6.

The People oppose the motion.

The accusatory instrument alleges that on September 13, 2009, the defendant, in his capacity as a New York City Detective, escorted the complaining witness, Sheila White, to the Kings County Criminal Court located at 120 Schermerhorn Street, Kings County, New York, for arraignment. Ms. White was uncuffed. While en route to arraignment, the defendant allegedly took Ms. White to a secluded room within the building and made remarks of a sexual nature, including a request that Ms. White lift her shirt. The accusatory instrument further alleges that during this time, the defendant repeatedly rubbed his hand over his penis to the point of sexual gratification.

Subsequently, the defendant was charged by the U.S. District Court for the Eastern District of New York with three counts of Deprivation of Civil Rights Title 18, United States Code, Sections 242 and 3551. On October 8, 2010, the defendant pled guilty to two counts of Deprivation of Civil Rights under 18 U.S.C. § 242. One of the counts to which the defendant pled guilty pertained to the afore-described incident that allegedly occurred on September 13, 2009, with Sheila White.

On December 16, 2010, the defendant moved to dismiss the instant criminal court misdemeanor complaint on the basis that the prosecution is barred by double jeopardy.

The defendant contends that one of the counts to which he pled guilty in federal court involved the same exact incident and facts as the charges before this court involving Sheila White. The defendant argues that the elements within the federal statute, Deprivation of Civil Rights, are analogous to the elements of the state statute, Official Misconduct. That is, both statutes require that the offender be acting in an official capacity (i.e., under color of law) and to act outside his authority. He further argues that the third elements are also the same, in that the offender must intentionally act to deprive another person of a benefit; here, the defendant deprived Ms. White of a benefit — her civil right to be free from the defendant's "abuse of power in asking her to partially disrobe while in custody, for no legitimate purpose."

The People contend that the prosecution of the defendant in federal court and the prosecution by the State of New York are not barred by double jeopardy as the prosecutions are not the same in law because they are based on separate and distinct statutes.

At issue is whether the prosecution of the defendant by the state of New York for the misdemeanor offense of Official Misconduct, PL § 195.00(1), is barred by double jeopardy pursuant to CPL §§ 40.20 and 40.30.

CPL §§ 40.20(1), 40.20(2)(a) and 40.20(2)(b) provide:

1. A person may not be twice prosecuted for the same offense.

2. A person may not be separately prosecuted for two offenses based upon the same act or criminal transaction unless:

(a) The offenses as defined have substantially different elements and the acts establishing one offense are in the main clearly distinguishable from those establishing the other; or

(b) Each of the offenses as defined contains an element which is not an element of the other, and the statutory provisions defining such offenses are designed to prevent very different kinds of harm or evil.

CPL § 40.30(1)(a) provides:

1. Except as otherwise provided in this section, a person "is prosecuted" for an offense, within the meaning of section 40.20, when he is charged therewith by an accusatory instrument filed in a court of this state or of any jurisdiction within the United States, and when the action []:

(a) Terminates in a conviction upon a plea of guilty.

The defendant contends that the federal statute, Deprivation of Civil Rights (18 U.S.C. § 242) and the New York State statute, Official Misconduct (PL § 195.00(1)), have essentially the same elements, and thus, the exceptions under CPL §§ 40.20(2)(a) and (b) do not apply.

Deprivation of Civil Rights, 18 U.S.C. § 242 provides: [*3]

Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such person being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined under this title or imprisoned not more than one year, or both

Official Misconduct, PL § 195.00(1), provides:

A public servant is guilty of official misconduct when, with intent to obtain a benefit or deprive another person of a benefit:

1. He commits an act relating to his office but constituting an unauthorized exercise of his official functions, knowing that such act is unauthorized.

The defendant argues that the first two elements of Official Misconduct are analogous to the first element of Deprivation of Civil Rights in that each requires the offender to be acting in an official capacity ("under color of law) and to act outside of his authority.

PL § 195.00 replaced more than 30 prior crimes, which dealt with specific malfeasance or nonfeasance in the accomplishment of official duties. See People v. Feerick, 93 NY2d 433, 445 (1999), citing Proposed New York Penal Law, Staff Notes of New York State Commission on Revision of Penal Law and Criminal Code [Richard J. Bartlett, Chair], § 200.00 [now § 195.00], at 370-371 (1965). PL § 195.00 was designed to replace the former statute, PL § 854, which dealt with oppression under color of law. People v. Feerick, supra. In fact, PL § 854 is entitled, "Oppression committed under color of official right."

However, although the first two elements of Official Misconduct are arguably analogous to the "color of law" element in 18 U.S.C. § 242, the same can not be said for the third element of Official Misconduct. Is the PL § 195.00(1) element, "depriv[ing] another person of a benefit," equivalent to the 18 U.S.C. § 242 statutory element, "willfully subjects any person . . . to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States?"

Legislative history and the plain language of the statute show that PL §195.00 was "designed to include gain other than graft or financial advantage." See People v. Feerick, supra at 446; see also, e.g., People v. Abranko, 157 Misc 2d 972 (Crim. Ct., Kings County 1993) (emergency medical technician, accused of sexual touching, was properly charged with official misconduct). "The New York Legislature thus intended its statute to replace those statutes prohibiting all manner of abusive acts by public officials, not just those dealing with graft." See People v. Feerick, supra at 446.

PL §10.00(17) states that " benefit' means 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." Reading PL § 195.00(1) and § 10.00(17) together, it must be alleged that the defendant intended to obtain any gain or advantage or deprive another person of a gain or advantage.

The "benefit" to the defendant should be "more than merely tangential and [have] a nexus

Here, the accusatory instrument alleges that the defendant obtained the benefit of sexual gratification. Defendant argues that the benefit element in PL §195.00 and Ms. White's civil right to be free from the defendant's "abuse of power" are one and the same. This argument is not persuasive. One's civil rights can not be construed as a "gain or advantage" under PL § 10.00(17). Moreover, the deprivation of Ms. White's civil rights is "merely tangential" and has no personal nexus to the defendant, whereas obtaining sexual gratification is a benefit that is relevant and personal to the defendant.

Accordingly, contrary to defendant's argument, the element, "benefit," in PL § 195.00(1) is not analogous to the 18 U.S.C. § 242 statutory element requiring that the defendant intended to deprive the victim of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States. Thus, under CPL § 40.20, the People's prosecution of the defendant for the offense of Official Misconduct, PL § 195.00(1), is not barred by double jeopardy.

Defendant's motion to dismiss the accusatory instrument as barred by double jeopardy protections pursuant to CPL §§ 40.20 and 40.30 and the New York State Constitution Article I, Section 6, is denied.

This opinion constitutes the decision and order of the court.

Dated:March 15, 2011

Brooklyn, New York

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Jacqueline D. Williams, J.C.C.