Under Indictment 2012/13, defendant has been indicted and charged with one count of official misconduct (P.L. § 195.00), a class A misdemeanor.^[FN1]Defendant has moved to have this Court inspect the Grand Jury minutes and to dismiss the indictment claiming that the People failed to present legally sufficient evidence establishing the charged crime. For the following reasons, defendant's motion is granted and the indictment is dismissed.

The evidence presented to the Grand Jury established in relevant part that on March 11, 2013, at 1:00 a.m., defendant, a New York City police officer, was on-duty and arrested Erica Noonan for driving while intoxicated. While placing Ms. Noonan in the backseat of his police vehicle, it is alleged that defendant put his hand on Ms. Noonan's breast. Ms. Noonan told defendant not to touch her like that. Defendant then transported Ms. Noonan to the 45th precinct for further alcohol testing and for arrest processing. At the precinct, defendant made a comment to Ms. Noonan regarding her body type, and gave Ms. Noonan his telephone number and told her that if she needed anything she should give him a call. While at the precinct, unbeknownst to Ms. Noonan and without her consent, defendant made a video recording of Ms. Noonan. The video depicts Ms. Noonan standing with her hands handcuffed behind her body. She is fully clothed, wearing a sweater and outer garment, and black, skin-tight, pants that covered her buttocks and legs. For approximately ten seconds during this one minute and fourteen seconds long video, the camera zooms in on Ms. Noonan's lower torso and buttocks. Ms. Noonan was arraigned on March 11, 2013, and she was released on her own recognizance.

Three days later, on March 14, 2013, Ms. Noonan texted defendant, and thereafter, [*2]between March 14, 2013 and March 24, 2013, Ms. Noonan and defendant had regular communication via text message and cell phone. During the course of these communications, on behalf of Ms. Noonan, defendant offered to speak to both the ADA handling Ms. Noonan's DWI case and to her employer, the New York City Department of Education. In addition, during these communications, defendant offered to check computerized records to see if Ms. Noonan's driver's license had been suspended; offered to give Ms. Noonan a PBA card; and sent Ms. Noonan photographs of himself. On March 24, 2013, defendant and Ms. Noonan went out on a date. They met at a restaurant, had dinner and drinks, and proceeded afterwards to a bar, where they each had numerous shots of tequila and mixed drinks. Ms. Noonan became so intoxicated that she was only able to recall leaving the bar, getting into defendant's car, going over a bridge, getting out of defendant's car, and waking up in defendant's bed with her eye swollen shut. During a conversation the following day between defendant and Ms. Noonan, which Ms. Noonan had recorded on her cell phone, defendant claimed that Ms. Noonan sustained the injury to her eye when Ms. Noonan had fallen and he denied having had any sexual contact with her.^[FN2] During two interviews with Detective Derick Cuebas of the Internal Affairs Bureau (IAB), defendant reiterated that Ms. Noonan sustained the injury to her eye when she had fallen. On June 18, 2013, during the course of defendant's second interview with Detective Cuebas, defendant displayed his cell phone and played for Cuebas the video he had taken of Ms. Noonan, which he had stored on his cell phone.^[FN3] Defendant told Cuebas that he had taken the video of Noonan because "she had a hot body" and that "he was attached (sic) to her."

Initially, the Court notes that although defendant committed a number of acts that can be characterized as misconduct, defendant stands indicted and charged with only one count of official misconduct. As to this count, in a letter dated August 5, 2013, the People served upon defense counsel a bill of particulars, which makes clear that the act underlying the sole charge of official misconduct was defendant's surreptitious recording of Ms. Noonan during the processing of her arrest. Likewise, in their response to defendant's motion to inspect and dismiss, the People contend that the evidence regarding defendant's videotaping of Ms. Noonan during the processing of her arrest suffices to establish all of the elements of the crime of official misconduct. The People's bill and response establish the prosecutorial focus of this case was the videotaping of Ms. Noonan, notwithstanding that other, arguably improper acts were presented to the Grand Jury and could have been enumerated as the basis of the single count of official misconduct.^[FN4] [*3]

The People thus argue in response to defendant's motion to dismiss the indictment that defendant's act of videotaping Ms. Noonan on the occasion of her arrest established the crime of official misconduct. This argument is unavailing. Defendant's videotaping of Ms. Noonan was certainly inappropriate, but it does not rise to the level of official misconduct. The official misconduct statute is designed to "encompass flagrant and intentional abuse of authority by those empowered to enforce the law." People v. Feerick, 93 AD2d 433, 445 (1999). In order to ensure that this purpose is carried out, the Legislature included in the official misconduct statute two mens rea requirements — 1) that a public servant intended to obtain a benefit; and 2) that a public servant knew his or her acts were an unauthorized exercise of his official function. Id. at 446. Here, neither mens rea requirement was satisfied.

As to the first, defendant's actions both before and after he recorded Ms. Noonan on his cell phone established that his intention was to further his personal relationship with, and the prospect of sexual relations with, Ms. Noonan. However, the surreptitious videotaping of Ms. Noonan did not advance this objective. The Court does not choose to characterize an act designed to provide a private satisfaction, undisclosed to the object of desire, to constitute a benefit. Cf. People v. Moreno, 100 AD3d 435, 436 (1st Dept. 2012)(intent to obtain a benefit element satisfied where evidence established that each police officer defendant intended "at least to socialize with the complainant with a view toward sexual intercourse" when they repeatedly entered her apartment).

The second mens rea requirement, also, was not satisfied because the evidence failed to establish that defendant knew that the act of videotaping Ms. Noonan was an [*4]

unauthorized exercise of a police function.^[FN5] In their response, the People do not point to any specific rule or regulation in the Patrol Guide, or elsewhere, which prohibits defendant's act of making a personal recording of Ms. Noonan. In addition, the circumstances surrounding defendant's disclosure of the video to Detective Cuebas suggest that defendant did not know that making a personal video while on-duty was wrong. During the course of being interviewed by Cuebas, a detective from IAB, it was defendant who first disclosed the existence of the video, which had been stored on his personal cell phone. And, it was defendant who volunteered to play the video for Cuebas, and also to allow Cuebas to make a copy of the video. Although defendant's remark to Cuebas while they were watching the video regarding his motivation for making the video was crude, it provides further evidence that defendant did not believe that he had done anything wrong in making this video of Ms. Noonan.

The Court thus finds that the evidence, even when viewed in the light most favorable to the People, does not establish prima facie proof of all of the elements of the crime charged. This determination, however, is not intended to condone defendant's actions, which the Court finds were not only insulting, demeaning and disrespectful to Ms. Noonan, but also wholly unworthy of a New York City police officer. While the act of videotaping Ms. Noonan was not criminal, defendant's actions represent serious errors of judgment that are more appropriately addressed in a disciplinary forum. See People v. Feerick, supra, 93 NY2d at 448.

Accordingly, defendant's motion is granted and the indictment is dismissed. See CPL § 210.20(1)(b).

This is the decision, order and opinion of the Court.

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Dated:Steven Barrett, AJSC

Bronx, New York