PEOPLE v. DiMATTINA (1999)

Appeal by the defendant from a judgment of the County Court, Suffolk County (Vaughn, J.), rendered October 2, 1997, convicting him of petit larceny (two counts), prohibited political assessments in violation of Civil Service Law § 107(3), and official misconduct (three counts), after a nonjury trial, and imposing sentence.

ORDERED that the judgment is modified, on the law, by reversing the conviction of official misconduct under count nine of the indictment and dismissing that count of the indictment;  as so modified, the judgment is affirmed.

 The defendant's conviction of official misconduct under count nine of the indictment was based on legally insufficient evidence.   In order to convict the defendant of official misconduct under count nine, which charged that he solicited political contributions from subordinates, the People were required to prove not only that the defendant intended to obtain a benefit or deprive another of a benefit, but, inter alia, that he knew that the alleged act was unauthorized (see, Penal Law § 195.00[1] ).  Here, the record contains no evidence of such knowledge.   Absent the requisite proof, the conviction must be reversed and that count of the indictment dismissed (see, People v. Anderson, 143 A.D.2d 760, 533 N.Y.S.2d 469).

The defendant's remaining contentions are without merit.

MEMORANDUM BY THE COURT.