This case involves the demolition of the former Village of Monticello Courthouse located on Route 42/Pleasant Street, in Monticello, Sullivan County, New York, which occurred during the late summer of 2013. The building, which was in a dilapidated condition and contained asbestos, was demolished by a private contractor on October 2, 2013, without having had any asbestos abatement as required by law.^[FN1] When the dust settled all that remained was a heap of debris, and a heap of trouble for the Mayor Gordon Jenkins and the Village's Building Inspector and Code Enforcement Officer, James Snowden. The New York State Department of Environmental Conservation, local and state police departments, and the District Attorney's Office converged on the scene and levied a plethora of DEC tickets on the contractor resulting in the present indictment of this Mayor and Building Inspector of the Village of Monticello. It should be noted that the demolition site was intended to be the location for a new public building [*2]and courthouse in the village.

After an extensive police investigation, the People presented the case to the Sullivan County Grand Jury, and under sealed indictment ^[FN2] No. 156S-2014, charged Defendant Snowden ^[FN3] with one count of Bribe Receiving in the Third Degree (PL §200.10), one count of Criminal Mischief in the Second Degree (PL §145.10), two counts of Conspiracy in the Fifth Degree (PL §105.05(1)), three counts of Official Misconduct (PL §195.00(1), (2)), one count of Endangering Public Health, Safety or Environment (ECL §71-2711(3)), and one count of Criminal Nuisance in the Second Degree (PL §240.45(1)).

Defendant Snowden submitted an Omnibus motion, dated January 21, 2015. The People submitted an Affirmation in Opposition dated April 29, 2015. Defendant Snowden submitted a Reply, dated May 6, 2015. The issues raised in the Omnibus motion, other than the ones addressed herein, are addressed in a separate Decision and Order dated September 18, 2015.

The People allege that Co-defendant Gordon Jenkins, the elected Mayor of Monticello at the time, and Defendant James Snowden, the Monticello Code Enforcement Office and Building Inspector agreed with James Kearney, a contractor, to have the former courthouse demolished for $5,000.00 without asbestos abatement. The People allege that the demolition required asbestos abatement prior to demolition; and had the job been done in accordance with applicable law and regulation, the demolition would have cost between $30,000.00 to $40,000.00. The People further allege that the unlawful demolition released asbestos fibers into the air and that Defendant Snowden and Co-defendant Jenkins, allowed the building debris, still contaminated with asbestos, to be hauled by the contractor to a dump site in Sullivan County unsuitable for hazardous waste dumping.

The defendant Snowden argues ^[FN4] that as the Civil Service employee Building Inspector for the Village of Monticello, he did not receive, and the People failed to establish by competent evidence and articulate, the "benefit" received by him from the demolition of the Village building, and therefore, the People did not establish an essential element of the crime of Bribe Receiving in the Third Degree (Penal Law §200.10; hereinafter referred to as "Bribery") before the Grand Jury. Defendant Snowden argues that the indictment, must be dismissed as the charge cannot proceed to Trial on an unspecified "benefit". The defendant also argues that based upon [*3]an inadequate Bill of Particulars and the People's failure to specify the "benefit" in question, the People cannot prove their case of Bribery at trial and therefore, the indictment must be dismissed.

The historical perspective and the common perception of Bribery is important to understand the legal issues presented to this Court. Black's Law Dictionary 4th Edition definition of Bribery states, "The offering, giving, receiving, or soliciting of any thing of value to influence action as official or in discharge of legal or public duty...the corrupt tendering or receiving of a price for official action...the receiving or offering any undue reward by or to any person or a public officer to influence his behavior in office...the taking or giving a reward for public office...anything of value...reward or favor... " The discounted rate of the demolition may be seen as enuring to the benefit of the taxpayers in the Village of Monticello, and the demolition contractor who received work. Nonetheless criminal activity is a matter of statutory design and not public perception. The current indictment is charged under New York Penal Law §200.10, Bribe Receiving in the Third Degree, reads in pertinent part as: "soliciting, accepting, or agreeing to accept any benefit in exchange for a vote, opinion, judgment, action, decision, or exercise of discretion in ones capacity as a public servant " (emphasis added.) The issue before this Court, and for legal sufficiency of the Grand Jury proceeding, is to what extent must "the benefit" to the defendant be actual, or may it be speculative, and to what extent must the benefit be articulated or specified in the indictment or Bill of Particulars prior to trial. For those answers we must turn to Statute and Judicial precedent.

The People argue as alleged in the Indictment that the "benefit" that enured to the defendant Snowden, in his official capacity as a Village of Monticello civil servant employee, and as co-defendant to the indicted Mayor (Jenkins), along with a known private contractor ^[FN5] was to demolish the Village of Monticello Courthouse building for a "deeply and unreasonably discounted price" in exchange for future work with the contractor on behalf of the village. The People argue that the "benefit" need not be tangible or monetary to constitute a bribe, see People v. Hochberg, 62 AD2d 239, (3d Dept 1978). Hochberg held that a third party's agreement not to run in a primary election sufficiently served as a direct benefit to the defendant to constitute a "thing of personal advantage." Id., at 247. Similarly soliciting future work for the Village from the Contractor at discounted rates constiutes a "personal advantage" for the benefit of an elected mayor, and was, therefore, part of the conspiracy with the Building Inspector and the "benefit" received.

Although the defendant Snowden is not an elected official, but, a civil servant employee, he is nonetheless a public servant working for elected officials, namely the Mayor and Village Trustees in his capacity as the Building Department Inspector and is indicted for acting together and in concert with the co-defendant Jenkins (Mayor). In People v. Bracy, 41 NY2d 296 (1977) the Court of Appeals held that a political benefit exists when a defendant "(misuses) department resources and personnel for his own political benefit" even when such benefit is speculative. Thus a political benefit need not be an actual "Benefit" or one that is received. Also, in People v. Connolly, 63 AD3d 1703 (4th Dept 2009) the court held that directing police investigations of [*4]opponents and critics for political purposes and misusing department resources and personnel to that investigation constitutes official misconduct. Here the defendants misused the authority and power to further an "illegal" demolition and as argued by the People to curry favor for the Mayor with his future constituents.^[FN6]

The defendant argues in his omnibus motion, that the element of intent to "benefit" has not been sufficiently alleged by the Indictment and Bill of Particulars. However, it "is well settled that a defendant's intent may be inferred from his actions." See People v. Bracey, 41 NY2d 296, 301 (1977). Intent can be inferred from the act itself or from the defendant's conduct and the surrounding circumstances. In People v. Smith, 79 NY2d 309 (1992) the Court of Appeals in addressing the issue of intent has written, "Often there is no direct evidence of a defendant's mental state and the jury must infer the mens rea circumstantially from the surrounding facts." See also People v. Persaud, 25 AD3d 626 (2d Dept 2006) where intent may be inferred from the act itself as well as from the defendant's conduct and the surrounding circumstances, (leave denied 6 NY3d 837 (2006). In People v. Britton, 49 AD3d 893 (2d Dept 2008) the Second Department held that the element of intent may be inferred from the commission of the act itself, as well as from the defendant's conduct and the surrounding circumstances. (See also People v. Jackson, 35 Misc 3d 179, 186 (NY City Crim CT 2011). In the instant case there is no direct evidence of the defendant's mental state, but the jury may infer the mens rea to receive a "Benefit" from all the facts and surrounding circumstances.

"The benefit accruing to the public official need not be tangible or monetary to constitute a bribe." People v. Hochberg, 62 AD2d 239, 246-247 (3d Dept 1978) (citations omitted). Retrieving an object where its loss could have subjected defendants to scorn, ridicule or possible discipline can be viewed as an advantage or gain. Moreover, the statutory definition of "Benefit" includes any desired gain or advantage to third parties. People v. Feerick, 93 NY2d 433, 448-449 (NY 1999). Thus the "Benefit" need not be monetary or personal to the defendants, Snowden or Jenkins.

The allegations that defendant Snowden derived a benefit from his illegal acts, including, but not limited to, political benefit to his friend and mayor of the Village of Monticello, defendant Jenkins is a sufficient allegation, which satisfies the "intent to benefit' element of Bribe Receiving since he is indicted as acting together and in concert with the co-defendant with the Mayor.

"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 (Penal Law §10.00[17]). This "includes more than financial gain and can encompass political or other types of advantage" (People v. Feerick, 93 NY2d 433, 447 (1999)). On the record in Feerick, before the Appellate Division, First Department, the Court of Appeals noted that it can be reasonably inferred that petitioner intended to obtain a benefit for his fellow officer and friend within the meaning of the statute when he accessed confidential information in an IAB computer system and confirmed for the officer the scope of the allegations of the complainant in the disciplinary investigation against him. In People v. Barnes, 117 AD3d 1203, 1206-1207 [3d Dept. 2014], while reversing the Criminal Misconduct conviction on other grounds not applicable in this case, the 3rd Department found that [c]onsidering defendant's statement to the pharmacist, the jury could infer that defendant intended to obtain a benefit — getting Jewett's prescriptions filled more quickly — by flashing her badge and identifying herself as a police officer. In People v. Lucarelli, 300 Ad2d 1013 [4th Dept 2002] the court reinstated an official misconduct finding that there was a legally sufficient evidence of a benefit to a police officer where that police officer was informed of the name of a suspected drug dealer and transmitted the information to the suspect's mother, with the intent to benefit the suspect and not himself. In the Matter of Conde v Kelly, 118 AD3d 534, 535 [1st Dept 2014], the Appellate Division 1st Department held that a prospective benefit, whether or not the benefit is actually achieved, constitutes a benefit for the purpose of these charges. Thus the defendant Snowden, who did not receive any gain or advantage, is vicariously liable for the acts and "Benefits" for the third party, i.e. co-defendant Mayor Jenkins.

Defendant Snowden, by his papers, concedes that the definition of "benefit" includes 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. (See defendant's Motion at paragraph 31.) [*6]Thus, Defendant's reliance on People v. Ioppolo, 45 AD2d 745 (2d Dept 1974), is of no significance with respect to the instant Indictment. Indeed, the Appellate Division, Second Department, set forth no facts in its decision, rendering the dismissal of the Ioppolo indictment with no precedential value for this Court, except to show that one particular indictment charging one particular defendant with one of the several offenses with which defendant Snowden is now before the Court was dismissed for insufficient evidence.

It is further submitted that the holding of the Suffolk County Court in People v. Adams, 86 Misc 2d 634 (Suffolk Co Ct 1976), as cited by the Defense, is wholly inapplicable to the case now before this Court. The Adams defendant, an elected legislator, was accused of having derived a personal benefit, in that a representative of a company prepared a report for the legislator to submit to a committee investigating the possibility of a future racetrack within the county. The Suffolk County Court held that while the "abstract concept of a political advantage' may suffice in a bribe receiving prosecution," because "[n]ot for many years has the public really believed that officials write their own speeches or reports," no benefit, for the purpose of the crimes charge existed. Id. At 638. The Adams holding, having been based upon facts so wildly different from those now at issue, cannot be considered to have any precedential or persuasive value, except insofar as that court reiterated the legal permissibility of bribe receiving indictments based upon political benefit. In the instant case, the gravamen of the "benefit' is not based solely on political speeches, but the concrete benefit of receiving work done at a discounted price for the village and the anticipation of receiving future discounted work in the village. This "benefit" being predicated upon a totally illegal lack of asbestos abatement in the Courthouse demolition work.

The defendant's reliance upon People v. Hyde, 156 AD 618 (1st Dept 1913), is misplaced. The Appellate Division, First Department, found error where "no question was put to the jury as to whether or not (the Hyde defendant) had received any such personal advantage where the People alleged personal benefit from a loan made to a third person." Hyde, id., 156 AD at 623. In the instant case the fact that Snowden received no personal "benefit" is of no moment because his co-defendant Mayor may be the beneficiary of the "Benefit", of his lack of administrative actions that allowed the illegal act to happen, i.e., the "deeply discounted" illegal asbestos demolition of a dilapidated building.

The Criminal Jury Instruction (hereinafter, "CJI") for Bribe Receiving in the Third Degree in its pertinent part reads as follows:

"...a public servant is guilty of Bribe receiving in the third degree when that public servant solicits, accepts or agrees to accept any benefit from another person upon an agreement or understanding that such public servant's vote, opinion, judgment, action, decision or exercise of discretion as a public servant will thereby be influenced." (emphasis added)

The term, "Benefit," in the CJI, 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." The term, "public servant," in the CJI, means "any public officer or employee of the state or any political subdivision thereof...." The term, "agreement," in the CJI means "a mutual agreement [*7]between a public servant and a person from whom he or she solicits, accepts or agrees to accept any benefit that such public servant's vote, opinion, judgment, action, decision or exercise of discretion as a public servant will thereby be influenced." The term, "understanding," means "at least a unilateral perception or belief by a public servant." The CJI also specifies that it is no defense to Bribe Receiving in the Third Degree that the public servant did not have power or authority to perform the act or omission for which the alleged bribe, gratuity or reward was given. In the instant case by omission of a stop work order or other legal device, the defendant Snowden, as Building Inspector, did not abate or stop the unabated asbestos demolition, that the co-defendant mayor authorized the Contractor ^[FN8] to perform.

There is no case law in New York that requires an actual benefit be received, nor contemplated under Bribe Receiving in the Third Degree, Penal Law §200.10. The intent and the benefit relevant under this statute is analogous to the intent to commit a the crime required in Article 140 of the Penal Law regarding the crime of Burglary. It is Hornbook Law, and clear precedent that under Article 140 the People need not establish, specify or prove what crime the defendant intended to commit when he entered or remained unlawfully in a building. It is sufficient for burglary to be established when the defendant enters or remains unlawfully with the "intent to commit a crime therein."

Pursuant to Criminal Jury Instructions in Article 140 the specification and proof of the intended "crime" is not a necessary element of Burglary. The CJI for Burglary in the Third Degree states: "...a person is guilty of Burglary in the Third Degree when that person knowingly enters [or remains] unlawfully in a building with the intent to commit a crime therein." The term, "intent," in the CJI means conscious objective or purpose." The actual crime or intent to commit a specific crime need not be specified. (See People v. Bergman, 70 AD3d 1494 [4th Dept.2010] and People v. Dodson, 96 AD2d 1116 [3rd Dept. 1983])

In seeking dismissal of the indictment the defendant is required to demonstrate a "clear showing that the evidence presented before the Grand Jury, if unexplained, and uncontracted, would not warrant a conviction by a trial jury." See People v. Scott, 131 AD2d 893, 894 (1987). The Defendant must overcome the presumption of validity that attaches to Grand Jury Indictments See People v Green, 80 AD2d 995 (1981); People v. Easton, 45 AD2d 863 (1974); People v. Jackson, 32 AD2d 590 (1968).

Although the defendant Snowden has offered and submitted explanations and contradictions of the People's evidence and the People's theory of Bribery, it is not sufficient to overcome the presumption of Grand Jury sufficiency, nor the People's "clear showing that the evidence presenting for the Grand Jury, if unexplained and un-contradicted would not warrant a conviction by a jury trial." (People v. Scott, id. 894.)

This Court is deeply constrained under the controlling case law not to inject its own assessment of the weight of the People's evidence no matter how dubious it may be. See People v. Deegan, 69 NY2d 979 (1978); People v. Jennings, 69 NY2d 103, 115 (1987); People v. Cole, 97 AD2d 886 (1983). The sole function of the trial court at this pre-trial stage is merely to determine that there is "competent evidence, which, if accepted as true would establish every element of the offense charged and defendant's commission thereof." CPL §70.10 (1); People v. Jackson, 117 AD2d 822 (1986); People v. Giordanella, 117 AD2d 617 (1986). Even competing inferences that could be possibly be drawn from the evidence is irrelevant, "so long as the Grand Jury could rationally have drawn the guilty inference." See People v. Deegan, supra; People v. Scott, supra; People v. Ballou, 121 AD2d 861 (1986). Applying these principles of law and that precedent, this Court must conclude that the indictment in this case is legally sufficient and is supported by credible evidence that conforms with the requirements of law and sets forth sufficient facts to apprise the defendant of the nature of the crimes of which he is accused as acting together and in concert with the co-defendant.

This Court need not decide, at this time, whether the People presented sufficient evidence before the Grand Jury or in the Bill of Particulars that the defendant received a benefit under Penal Law §200.10 (Bribery) to convict the Defendant beyond a reasonable doubt. This Court cannot unfairly usurp the power of the Grand Jury and in reviewing the sufficiency of the evidence the Court must be ever cognizant of the principle that the task of weighing of the evidence rest solely with the Grand Jury. See People v. Cole (supra); People v. Deegan (supra); People v. Piening, 99AD2d 583 (1984); People v. Fitzgerald, 45 NY2d 574 (1978).

The defendant's claim with respect to sufficiency of the Bill of Particulars is also denied. The defendant's claim that the People's response did not specifically allege what benefit, political or otherwise, the Defendant Snowden received is rejected by this Court.

The appellate courts of this state have upheld the provision of additional specificity of Bill of Particulars, even during the course of a trial. See People v. Griffin, 9 AD3d 841, 843 (4th Dept 2004) ("A court may grant a motion to amend the bill of particulars [a]t any time during trial' upon finding that there is no undue prejudice' to the defendant and that the prosecution has acted in good faith (CPL 200.95 (8); (see People v. Lewis, 277 AD2d 1010, 1011 (2000), iv denied 96 NY2d 736 (2001). Although the amendment effectively changed the theory of the prosecution, we conclude that defendant was aware of the prosecution's actual theory from the inception of the case, and thus the amendment did not result in undue prejudice to defendant (see People v. Wilson, 252 AD2d 960, 961 (1998), Iv denied 92 NY2d 931 (1998); see also People v. Medina, 233 AD2d 927 (19960 IV DENIED 89 ny2D 926 [1996]).").

The Indictment at Bar specifically alleged that defendants Jenkins and Snowden "did knowingly, intentionally and unlawfully accept or agree to accept a benefit from a person engaged by the aforesaid defendants to effect the unauthorized demolition of the former village of Monticello Justice Court located on Pleasant Street in the Village of Monticello ".The Bill of Particulars, furnished to defendants within fifteen days of arraignment, further specified that defendants "contracted with persons not authorized to abate asbestos to demolish the former Village of Monticello Justice Court building, intentionally damaging the aforesaid building, [*8]securing an unreasonably discounted fee of $5,000 for the unauthorized demolition by agreeing to funnel future work to the aforesaid persons, thereby securing, inter alia, the aforesaid discounted fee and political benefit." Defendant Snowden and Jenkins have been aware of the People's theory of this case from its inception and cannot now claim any undue prejudice or surprise prior to Trial. (See Griffin, supra, 9 AD3d 841).

In People v. Galenski, 184 AD2d 1006 [4th Dept 1992], iv denied 80 NY2d 929 [1992] it was held that because the proof at trial will conform to "the theory set forth in the indictment as amplified in the People's bill of particulars," defendant's contention in this regard is without merit and must be rejected.

The Defendant's motion to dismiss the Indictment is denied.

Since this Indictment is scheduled for Jury Selection in the near future, and based upon counsels' arguments for dismissal of the Indictment, and this Court's decision denying dismissal, this Court will require both defense and prosecution to submit their request for charges on Bribery to the Court, in writing, with a supporting memorandum of law prior to jury selection scheduled for on December 3, 2015.

This shall constitute the Decision and Order of this Court.