Posted by: Patricia Salkin | September 23, 2010

Official Misconduct Upheld By NY Appellate Court When Legislator Used Authority to Get Developer a Contract in Return for a House

The defendant, Diane Gordon, a former member of the Assembly, was convicted on eight offenses regarding official misconduct and bribery. These convictions were based on the defendant’s promising to use her authority to help a real estate developer purchase City land in exchange for receiving a house from the developer for free or a reduced price.

Gordon appealed her convictions and the Supreme Court Appellate Division for the Second Department affirmed. Gordon challenged the legal sufficiency of the evidence, asserting that “criminal liability for soliciting a benefit cannot be predicated on an alleged violation of her public duty as defined by the Code of Ethics.” The appellate court disagreed, as they have established that breaking the Rules of Judicial Conduct could constitute official misconduct since the rules set forth a constitutionally mandated duty upon the judiciary, and when accompanied by a reward, that violation can serve a basis for prosecution under the Penal Code. Similarly, the Code of Ethics, found in Public Officers Law § 74, imposes a mandatory duty as well, thus criminal liability can also be established through the breach of a public duty as defined in the Code of Ethics. 

People v. Gordon, 72 A.D.3d 841, 898 NYS2d 257 (2nd Dept. 6/9/2010).

The opinion can be accessed here.

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