PEOPLE v. CABAN

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Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Appellant, v. James CABAN, Defendant-Respondent.

    Decided: August 19, 1999

EUGENE NARDELLI, J.P., RICHARD W. WALLACH, ALFRED D. LERNER, RICHARD T. ANDRIAS and JOHN T. BUCKLEY, JJ. Stanley R. Kaplan, of counsel (Joseph N. Ferdenzi, Mark S. Demarco, on the brief, Robert T. Johnson, District Attorney, Bronx County, attorney) for appellant. Lauren K. Kluger, of counsel (Murray Richman, attorney) defendant-respondent.

In the words of Grover Cleveland, “a public office is a public trust.”   This applies not only to elected officials, but to all who work for the people, including the police.

Must such a public servant who commits extortion be charged with that crime under the same section of the Penal Law with which a civilian would be charged?   Or may the District Attorney charge an officer with a separate count of extortion requiring abuse of his/her public office, a crime which a civilian could not commit?

 The District Attorney may decide to charge a police officer with violation of the law as a civilian or, if the circumstances warrant, in his/her opinion may charge the officer with the same crime based upon an abuse of police power.   A court may not interfere with that discretionary power of the District Attorney and dictate what charges should be brought (Matter of Holtzman v. Goldman, 71 N.Y.2d 564, 573, 528 N.Y.S.2d 21, 523 N.E.2d 297).

“Political theorists since Locke have argued variations on the theory that governmental office is distinct from a property right and represents power held in trust for the citizenry.   Thus, the expectations held of public officials are deeply engraved in our culture, and unfair surprise does not result when the criminal law enforces these expectations.”  (Prof. John C. Coffee, Jr., Modern Mail Fraud:  The Restoration of the Public/Private Distinction, 35 ACLR, 427, 461)

Defendant is a police officer whose wife took a livery cab operated by one Juan Alvarez and left her purse in the cab.   A later passenger found Mrs. Caban's purse in the cab and Mr. Alvarez returned it to her at her home.   When he did so, he asked her to “check it out.”   She “opened it a little bit” and said “it is fine.”   However, later that evening, Mr. Alvarez was told by his dispatcher to call the 41st Precinct.   Upon arriving at the precinct, he was told by Sgt. Caban through an interpreter that $100 was missing from the purse.   Sgt. Caban, in police uniform, demanded that the driver return the money.   When Mr. Alvarez denied taking the money, defendant allegedly told him he did not want to hear “stories” and if Alvarez did not produce the money, he would put him in a cell.   Defendant took money from Alvarez's pocket and counted it.   Defendant then allegedly demanded Alvarez's driver's license and taxi license and said if Alvarez did not look for the money, defendant would take the licenses away.   Sgt. Caban handcuffed Alvarez behind his back and put him in a cell.   Alvarez asked the interpreter, Officer Diaz, what he should do since he was innocent.   The officer allegedly told Alvarez to give defendant the money even if it came from his own pocket.   After he gave defendant $100, he was allowed to leave the stationhouse.

Defendant Caban was charged with larceny by extortion pursuant to Penal Law § 155.40(2)(c) based on his having instilled fear that he would use or abuse his position as a police officer.   The IAS court dismissed the first count of the indictment charging defendant with grand larceny in the second degree on the ground that the People should have instructed the Grand Jury on the affirmative defense to Penal Law § 155.05(2)(e)(iv).   That section defines larceny by extortion as follows:

A person obtains property by extortion when he compels or induces another person to deliver such property to himself or to a third person by means of instilling in him a fear that, if the property is not so delivered, the actor or another will:  ․

(iv) Accuse some person of a crime or cause criminal charges to be instituted against him ․

Penal Law § 155.15(2) provides as an affirmative defense:

In any prosecution for larceny by extortion committed by instilling in the victim a fear that he or another person would be charged with a crime, it is an affirmative defense that the defendant reasonably believed the threatened charge to be true and that his sole purpose was to compel or induce the victim to take reasonable action to make good the wrong which was the subject of such threatened charge.

 Even if the evidence suggests herein that defendant committed larceny by extortion pursuant to Penal Law § 155.05(2)(e)(iv), namely, by instilling a fear that defendant would accuse the victim Alvarez of a crime or cause criminal charges to be instituted against him, the affirmative defense applicable to that charge was not required to be given to the Grand Jury in this case.

The sole extortion charge here was based on Penal Law § 155.05(2)(e)(viii), i.e., instilling fear that defendant would use or abuse his official position as a public servant.

(viii) Use or abuse his position as a public servant by performing some act within or related to his official duties, or by failing or refusing to perform an official duty, in such manner as to affect some person adversely.

The evidence before the Grand Jury showed that defendant instilled fear in Mr. Alvarez by handcuffing him and putting him in a cell.   Further, he took away Alvarez's driver's license and taxi license and threatened not to return them if Alvarez did not give him money.   Had the People chosen to charge defendant with larceny by extortion based upon defendant's threat to cause charges to be brought against Alvarez, without instructing the Grand Jury on the affirmative defense in question, then dismissal of that charge might have been warranted.   However, the People instead chose to charge defendant with grand larceny based upon the threatened use or abuse of defendant's position as a public official.   Having done so, there was no concomitant obligation to instruct the Grand Jury on the affirmative defense which, on its face, is only applicable to “any prosecution for larceny by extortion committed by instilling in the victim a fear that he or another person would be charged with a crime” (Penal Law § 155.15[2], supra ).

Accordingly, the order of the Supreme Court, Bronx County (David Stadtmauer, J.), entered on or about June 30, 1998, which dismissed the first count of the indictment charging defendant with grand larceny in the second degree, with leave to re-present to another Grand Jury, and, order of the same court and Justice, entered on or about October 8, 1998, which granted the People's motion for reargument and, upon reconsideration, adhered to the original decision, should be reversed to the extent appealed from, on the law, the first count of the indictment reinstated and the matter remanded for further proceedings.

Orders, Supreme Court, Bronx County (David Stadtmauer, J.), entered on or about June 30, 1998 and October 8, 1998, reversed to the extent appealed from, on the law, the first count of the indictment reinstated and the matter remanded for further proceedings.

NARDELLI, J.P.

All concur.

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