8/7/2019 1982 Carl Kruger Case

http://slidepdf.com/reader/full/1982-carl-kruger-case 1/4

The People of the State of New York, Appellant, v. Carl Kruger and David Rynecki, Respondents

[NO NUMBER IN ORIGINAL]

Supreme Court of New York, Appellate Division, Second Department

July 6, 1982

PRIOR HISTORY: [***1] Appeal from so much of an order of the Supreme Court (William H. Booth, J.),entered February 1, 1982 in Kings County, as dismissed those counts of an indictment chargingdefendants with attempted grand larceny in the first degree and attempted bribe receiving in the seconddegree.

DISPOSITION: Order of the Supreme Court, Kings County, dated February 1, 1982, reversed insofar asappealed from, on the law, motion to dismiss denied as to Counts 1 and 3, the said counts are reinstatedand the matter is remitted to Criminal Term for further proceedings consistent herewith.

CASE SUMMARY 

PROCEDURAL POSTURE: The state appealed an order of the Supreme Court,Kings County (New York), which dismissed those counts of an indictment

charging defendants with attempted grand larceny in the first degree

and attempted bribe receiving in the second degree. Defendants were

members of a community board and were indicted for having acted in

concert to commit various crimes including attempted grand larceny,

grand larceny, and attempted bribery. OVERVIEW: A grand jury indicted defendants after finding thatdefendants had attempted to steal property by extortion in threatening

another to either deliver property to defendants or to face the

effects of defendants abusing their positions as public servants toharm someone. The criminal term granted defendants' motion to dismiss

two counts of the indictment on the ground that the charges were not

legally sufficient and that the counts were predicated on the

erroneous assumption that defendants were "public servants" within the

meaning of N.Y. Penal Law § 10.00(15). On appeal, however, the courtreversed the dismissal and found that the criminal term erred when it

concluded that defendants were not "public servants." That the

recommendations of the various community boards were not binding upon

the city planning commission was not determinative of defendants'

status. The real issue was whether defendants had attempted to secure

compensation for exercising their discretion in relation to a matter

to which they bore some official relation. Furthermore, the Penal Lawwas not to be strictly construed. Rather, it was to be construed to

promote justice. OUTCOME: The court reversed the portion of the criminal term'sdecision that granted defendants' motion to dismiss as to two of the

counts against them. The court then reinstated the counts and remitted

the matter to the criminal term for further proceedings consistent

herewith. 

8/7/2019 1982 Carl Kruger Case

http://slidepdf.com/reader/full/1982-carl-kruger-case 2/4

 

CORE TERMS: public servants, community board, bribe receiving, attempted grand larceny,recommendation, wit, public officer, planning commission, inter alia, indictment charging, indictmentcharges, public hearings, grand larceny, acting in concert, official duties, indictment, appointed, quantity,land-use, supplied, binding, steal

LexisNexis® Headnotes  Hide Headnotes 

Governments > Public Improvements > Community RedevelopmentReal Property Law > Subdivisions > Local RegulationReal Property Law > Zoning & Land Use > Special Permits & VariancesHN1Each community board shall exercise the initial review of

applications and proposals of public agencies and private entities

for the use, development or improvement of land located in the

community district, including the conduct of a public hearing and

the preparation and submission to the city planning commission of a

written recommendation, Charter of City of New York, § 2800(d)(15). The breadthof authority thereby conferred extends, inter alia, to applications

for variances and special permits, Charter of City of New York ch.27, zoning map changes, subdivision plats, housing and urban renewal

projects, land fills and the sale or leasing of real property by or

to the City of New York, Charter of City of New York, § 197-c. Land-usedecisions involve the exercise of the sovereign power of the state.

Moreover, although not formally salaried, the members of a community

board are appointed to staggered two-year terms by the applicable

borough president, Charter of City of New York, § 2800(a), (b), and arereimbursed from the city treasury for their "actual and necessary

out-of-pocket expenses, Charter of City of New York, § 2800(c). Governments > Local Governments > Employees & OfficialsHN2N.Y. Penal Law provides: "Public servant" means (a) any public

officer or employee of the state or of any political subdivision

thereof or of any governmental instrumentality within the state, or

(b) any person exercising the functions of any such public officer

or employee. The term "public servant" includes a person who has

been elected or designated to become a public servant. Governments > Legislation > InterpretationGovernments > Legislation > Types of StatutesHN3The New York Penal Law is not to be strictly construed, but, rather,

construed according to the fair import of its terms to promote

justice and effect the objects of the law, N.Y. Penal Law § 5.00. HEADNOTES 

Crimes -- Indictment -- Bribery Charges against Public Servants 

Defendants, who were appointed to nonsalaried positions as members of a Community Board in NewYork City, which exercises initial review of various land use applications, conducts public hearings andsubmits written recommendations thereon to the New York City Planning Commission, are "public

8/7/2019 1982 Carl Kruger Case

http://slidepdf.com/reader/full/1982-carl-kruger-case 3/4

servants" within the meaning of subdivision 15 of  section 10.00 of the Penal Law. Accordingly, it was errorto dismiss as legally insufficient those counts of an indictment charging defendants with bribe receiving inconnection with their roles as public servants [***2] (Penal Law, § 155.40, subd [c]; § 200.10) on theground that defendants lack the requisite positions as public servants.

COUNSEL: Elizabeth Holtzman, District Attorney (Allan P. Root of counsel), for appellant.

Benjamin Brafman for respondents.

JUDGES: Gulotta, J. P. O'Connor, Rubin and Boyers, JJ., concur.

OPINION BY: GULOTTA

OPINION 

[*473] OPINION OF THE COURT

[**78] Defendants, members of Community Board No. 18 in Brooklyn, were indicted by a Kings CountyGrand Jury under a multiple count indictment charging them with having acted in concert to commit the

crimes of attempted grand larceny in the first degree, attempted grand larceny in the second degree,attempted bribe receiving in the second degree, attempted grand larceny in the third degree, grandlarceny in the second degree (two counts) and grand larceny in the third degree (two counts).Subsequently, the defendants moved, inter alia , to dismiss the first and third counts of the indictment onthe ground that the charges contained therein were not legally sufficient, and alleged in support thereofthat the counts were predicated on the erroneous assumption that the defendants, in [*474] theircapacity [***3] as community board members, were "public servants" within the meaning of subdivision15 of section 10.00 of the Penal Law. [**79] Count No. 1 of the indictment charges the defendants withthe crime of attempted grand larceny in the first degree committed as follows: "The defendants, acting inconcert, on or about and between October and November, 1978, in the County of Kings, with the intent tosteal property, to wit: a quantity of United States Currency, attempted to steal such property by extortion,in that defendants attempted to compel and induce David Karmi to deliver such property to defendantsand to a third person by means of instilling in David Karmi a fear that, if the property was not so delivered,

defendants and another person would use and abuse their positions as public servants, to wit: membersof Community Board #18 in Brooklyn, New York, by engaging in conduct within and related to their officialduties, and by failing and refusing to perform an official duty, in such a manner as to affect David Karmiadversely." Somewhat similarly, Count No. 3 of the indictment charges the defendants with the crime ofattempted bribe receiving in the second degree committed in [***4] the following manner: "Thedefendants, acting in concert, on or about and between October and November, 1978, in the County ofKings, being public servants, to wit: members of Community Board #18 in Brooklyn, New York, attemptedto solicit, accept and agree to accept a benefit, to wit: a quantity of United States Currency, from DavidKarmi upon an agreement and understanding that defendants' vote, opinion, judgment, action, decisionand exercise of discretion as public servants would thereby be influenced." Criminal Term, in the orderappealed from, granted this aspect of the defendants' motion and the People appeal.

We reverse.

In our view, Criminal Term erred in concluding that the defendants may not be regarded as "publicservants" within the meaning of subdivision 15 of  section 10.00 of the Penal Law. * Community boardsoperating within the City [*475] of New York are the creation of statute (see Charter of City of New York,§ 2800), and, under the New York City Charter, play an important role and exercise specific statutoryfunctions in connection with land-use decisions (see Charter of City of New York, § 197-c et seq .; ch 27).

Thus, it is specifically provided [***5] that HN1 "Each community board shall * * * Exercise the initial review of applications and proposals of public agencies and private entities for the use, development orimprovement of land located in the community district, including the conduct of a public hearing and the

8/7/2019 1982 Carl Kruger Case

http://slidepdf.com/reader/full/1982-carl-kruger-case 4/4

preparation and submission to the city planning commission of a written recommendation " (Charter of Cityof New York, § 2800, subd d, par [15]; emphasis supplied), and that the breadth of authority therebyconferred extends, inter alia , to applications for variances and special permits (Charter of City of NewYork, ch 27), zoning map changes, subdivision plats, housing and urban renewal projects, land fills andthe sale or leasing of real property by or to the City of New York (Charter of City of New York, § 197-c). Itis undisputed that land-use decisions involve the exercise of the sovereign power of the State. Moreover,although not formally salaried, the members of a community board are appointed to staggered two-yearterms by the applicable borough president (Charter of City of New York, § 2800, subds a, b), and arereimbursed from the city treasury for their "actual and necessary out-of-pocket [***6] expenses" (Charterof City of New York, § 2800, subd c).

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -

* HN2 "'Public servant' means (a) any public officer or employee of the state or of any political subdivisionthereof or of any governmental instrumentality within the state, or (b) any person exercising the functionsof any such public officer or employee. The term public servant includes a person who has been electedor designated to become a public servant."

- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

That the "recommendations" of the various community boards are not binding upon the City PlanningCommission and the Board of Estimate is not, in our view, determinative of the defendants' status, as thecentral consideration for present purposes is [**80] not whether the defendants have any "directauthority" over the matter in issue, but whether they have attempted (as alleged) to secure compensation"for exercising [their] discretion in relation to a matter to which [they bear]some official relation"(see People v Clougher , 246 NY 106, 112; emphasis supplied). In point of fact, [***7] it is rarely if everthat the recommendations of a "subordinate" administrative body or officer will be [*476] binding in anymeaningful way upon its or his "superior", but the foregoing cannot be relied upon to insulate the lesser

official from criminal liability arising out of the misuse of his powers. As has oft been stated,  HN3 thePenal Law is not to be strictly construed, but, rather, "construed according to the fair import of [its] termsto promote justice and effect the objects of the law" (Penal Law, § 5.00; People v Teicher , 52 NY2d 638,647; People v Knowles , 79 AD2d 116, 117-118). 

Macrum v Hawkins (261 NY 193) and Matter of Lowell v Browner (47 Misc 2d 729), the principal casesrelied on by the defendants, are distinguishable on their facts, as the issue involved in each of thosecases concerned the "public officer" status of a member of a planning board created pursuant to  section239-b of the General Municipal Law for the purpose of determining whether his designation as such (1)precluded his continuation in office as a member of a county board of supervisors (  Macrum v Hawkins,supra ) or (2) mandated his compliance with the residency requirements [***8] for "local office" set forthin section 3 of the Public Officers Law ( Matter of Lowell v Browner, supra ). Neither concerned the statusof such an individual for penal purposes, i.e., for the purpose of determining whether his alleged abuse ofhis official position for reasons of personal gain might constitute, inter alia , bribe receiving by a publicservant.

Accordingly, the order should be reversed insofar as appealed from, the motion to dismiss as to Counts 1

and 3 denied, and those counts reinstated.