                            State of New York
                     Supreme Court, Appellate Division
                        Third Judicial Department
Decided and Entered: February 18, 2016                     106396
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                       MEMORANDUM AND ORDER

THEODORE HUTCHINS,
                    Appellant.
________________________________


Calendar Date:   January 12, 2016

Before:   Peters, P.J., McCarthy, Rose and Lynch, JJ.

                               __________


      O'Connell and Aronowitz, Albany (Scott Iseman of counsel),
for appellant.

      James R. Farrell, District Attorney, Monticello, for
respondent.

                               __________


McCarthy, J.

      Appeal from a judgment of the County Court of Sullivan
County (LaBuda, J.), rendered January 8, 2014, upon a verdict
convicting defendant of the crimes of official misconduct (two
counts) and coercion in the first degree (two counts).

      At all relevant times, defendant was on the board of
trustees for the Village of Monticello and John LiGreci was the
Village Manager. Defendant and LiGreci were charged, in a sealed
indictment, with acting in concert to commit two counts of
official misconduct and two counts of coercion in the first
degree based on two directives that LiGreci gave to two different
Police Chiefs. Both directives pertained to the employment
application of a citizen (hereinafter the candidate) seeking to
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become a police officer for the Village. Following a jury trial,
defendant was found guilty as charged. He was sentenced to six
months in jail, five years of felony probation and 500 hours of
community service. Defendant now appeals. Upon our conclusion
that there is legally insufficient evidence in regard to multiple
elements for each conviction, we reverse.

      Evidence is legally sufficient when, "viewing the evidence
in the light most favorable to the People," it provides "a valid
line of reasoning and permissible inferences from which a
rational jury could have found the elements of the crime proved
beyond a reasonable doubt" (People v Reed, 22 NY3d 530, 534
[2014] [internal quotation marks and citations omitted]). A
person commits official misconduct when, "with intent to obtain a
benefit or deprive another person of a benefit[, he or she]
commits an act relating to his [or her] office but constituting
an unauthorized exercise of his [or her] official functions,
knowing that such act is unauthorized" (Penal Law § 195.00 [1];
see People v Barnes, 117 AD3d 1203, 1206 [2014]). "A conviction
for official misconduct must be supported by proof that a
defendant knew that [the] acts were unauthorized, so as to
'negate the possibility that the misconduct was the product of
inadvertence, incompetence, blunder, neglect or dereliction of
duty, or any other act, no matter how egregious, that might more
properly be considered in a disciplinary rather than a criminal
forum'" (People v Barnes, 117 AD3d at 1206, quoting People v
Feerick, 93 NY2d 433, 448 [1999] [citation, brackets and emphasis
omitted]).

      To commit coercion in the first degree, a person must
commit coercion in the second degree and compel or induce the
victim to "[v]iolate his or her duty as a public servant" (Penal
Law § 135.65 [2] [c]). A person commits coercion in the second
degree when "he or she compels or induces a person to engage in
conduct which the latter has a legal right to abstain from
engaging in . . . by means of instilling in him or her a fear
that, if the demand is not complied with, the actor or another
will . . . [u]se or abuse his or her position as a public servant
by performing some act within or related to his or her official
duties . . . in such manner as to affect some person adversely"
(Penal Law § 135.60 [8]). Thus, proof of a defendant's guilt of
                              -3-                106396

either official misconduct or coercion in the first degree based
on a theory of accessorial liability for an executive's order to
a subordinate employee requires proof beyond a reasonable doubt
that, objectively, the executive did not have the authority to
give such a directive and further that, subjectively, the
defendant knew that the executive lacked such authority.

      Defendant's convictions are premised upon LiGreci's
directive to then Police Chief Doug Solomon to cease a background
check on the candidate and his subsequent directive to subsequent
Police Chief Mark Johnstone to provide him with answers to
questions posed by the Village attorney that regarded a potential
lawsuit related to the police department's background check.1
The People did not cite or introduce into evidence any codified
laws, regulations, policies or rules that delineated a Village
Manager or Police Chief's respective authority in regard to


    1
        We reject the People's invitation to consider a new
theory of prosecution, raised for the first time on appeal, that
defendant's directives to LiGreci are the unauthorized acts. The
indictment, the case that the People presented at trial and the
charges that were given to the jury all unambiguously identify
LiGreci's directives to the Police Chiefs as the relevant acts
giving rise to the alleged crimes. Accordingly, the People's
argument is unpreserved given that the People never sought jury
instructions that would permit the jury to consider that theory
(see CPL 470.05 [2]; People v Morrison, 110 AD3d 1380, 1381
[2013], lv denied 22 NY3d 1201 [2014]). Further, raising a
theory of prosecution after the conclusion of a trial deprives a
defendant of fair notice, the meaningful opportunity to present a
defense at trial and of the right to have a jury decide the facts
that subject the defendant to criminal liability (see generally
Apprendi v New Jersey, 530 US 466, 483-484 [2000]; People v
Grega, 72 NY2d 489, 495-496 [1988]). In any event, the People's
newly raised theory is without merit. The record contains no
proof that could reasonably be construed as delineating the
limitations of a Village trustee's authority to give directives
to a Village Manager. Therefore, no rational factfinder could
conclude, beyond a reasonable doubt, that defendant's directives
to LiGreci were unauthorized.
                               -4-                106396

employment background checks or that related to the instances in
which a Police Chief can, or cannot, disregard his or her
supervisor's directive to answer questions.2 Accordingly, the
People were left with the task of proving beyond a reasonable
doubt that LiGreci lacked the authority to give such orders
despite the absence of any codification that supported that
contention; relatedly, they were also tasked with proving beyond
a reasonable doubt that defendant did not have a subjective good
faith belief that LeGreci had the authority to give such
directives (see generally People v Michaels, 132 AD3d 1073, 1076-
1077 [2015]; People v Rios, 107 AD3d 1379, 1381-1382 [2013], lv
denied, 22 NY3d 1158 [2014]).

      We first turn to the proof regarding the executive
authority over background checks of candidates seeking employment
as police officers of the Village. Multiple witnesses familiar
with the functioning of the Village's government confirmed that
the Village Manager – LiGreci – had the sole authority to make
hiring decisions for the municipal departments, including the
police department. Further, it is uncontested that the Village
Manager serves as a supervisor to the Police Chief. In addition,
LiGreci testified that it was within his authority as the Village
Manager to halt the background check.

      During his testimony, Solomon admitted that no law tasked
him with the responsibility to conduct background checks.
Further, he never indicated that the Village had vested him with
the authority to conduct background checks. To the contrary,
Solomon explained that he had created the background check
procedure used for police officer candidates. Considering this
evidence, no rational juror could conclude that LiGreci's
directive to halt the background check was unauthorized.3


     2
        We note that policy documents that the police department
created itself are insufficient to establish that the Village
vested the police department or Police Chief with any particular
authority.
     3
        To the extent that LiGreci's stated justification for
halting the background check was that it had proceeded in an
                              -5-                106396

Further, even assuming that the record contained legally
sufficient proof to establish this element, we nonetheless
conclude that the record contains no evidence that defendant had
the requisite knowledge that the directive was unauthorized.
Considering the proof that LiGreci's power to hire personnel was
well known within the Village and the fact that the record
contains no evidence that defendant was ever informed of
Solomon's supposed duty to conduct background checks, there was
legally insufficient evidence to establish the requisite mental
state (see Penal Law § 20.00; People v Michaels, 132 AD3d at
1076). Accordingly, we reverse defendant's convictions of
official misconduct under count 7 of the indictment and coercion
in the first degree under count 8 of the indictment.

      We reach a similar conclusion regarding LiGreci's directive
to Johnstone – Solomon's successor as Police Chief – to provide
answers to questions related to the candidate's background check,
which was the subject of potential civil litigation. When
Johnstone was asked why he felt that he was entitled to disregard
a supervisor's directive to provide answers to questions posed by
the Village attorney,4 Johnstone explained that he had sought


inappropriate manner, we note that a recorded telephone
conversation relating to the background check revealed an officer
inquiring into topics such as whether the candidate associated
with "undesirable people" and whether the candidate lived with a
paramour "out of wedlock." Further, Solomon admitted that he had
already made up his mind about the candidate's qualifications
before beginning the background check, and agreed that "no matter
how long any investigation lasted, no matter how many people were
interviewed, no matter how many documents were retrieved [and] no
matter how many psychological examinations were performed,
nothing was going to change [his] opinion" that the candidate was
unsuitable to be a police officer.
    4
        Inasmuch as the crime of coercion in the second degree
required additional proof that LiGreci instilled in Johnstone a
fear of LiGreci creating an adverse consequence for Johnstone if
he failed to comply with the order (see Penal Law § 135.60 [8]),
the uncontradicted proof shows that Johnstone did not believe
                               -6-                106396

counsel from Sullivan County District Attorney James Farrell and,
as a result, knew that there was a pending criminal investigation
of the candidate and of LiGreci. Johnstone averred that, based
on the existence of such criminal investigation, he had a duty
not to answer the questions. Contrary to Johnstone's reasoning,
however, the police department's prior human resources work was
not the subject of the criminal investigation, and there would be
no legitimate reason to keep information related to their human
resource activities confidential from the Village.

      The remainder of Johnstone's testimony renders it
unreasonable to conclude that he believed that he had a legal
right or obligation to refuse to answer the questions. As
Johnstone testified, when a different supervisor gave him a
directive to answer the same questions for LiGreci, Johnstone
immediately complied.5 In regard to this compliance, Johnstone
explained: "If you don't follow a direct order[,] you are
considered insubordinate and . . . suspended." The record is
silent as to any explanation from Johnstone that could reasonably
reconcile his testimony that it was his "legal right not to
answer [the questions]" when LiGreci directed him to do so but
that it would have been "insubordinat[ion]" not to answer the
questions when a different supervisor made the exact same
request.

      Finally, the record contains no proof that could support a
reasonable conclusion that defendant knew, prior to LiGreci's
directive, that a criminal investigation had been commenced that
deprived LiGreci of the authority to have Johnstone answer the
questions (see generally Penal Law § 20.00; People v Kaplan, 76


that LiGreci had made efforts to instill such fear; when asked
whether he was ever threatened by LiGreci in respect to answering
the questions, Johnstone unequivocally answered "no."
     5
        Were we to focus on an element unique to coercion in the
second degree, this evidence leads to the single reasonable
conclusion that Johnstone was "compel[led] or induce[d]" to
answer the questions by this supervisor, and not by LiGreci,
whose order Johnstone had disregarded (Penal Law § 135.60).
                              -7-                  106396

NY2d 140, 146 [1990]). To the extent that proof was presented on
the issue of knowledge, it tended to suggest the exact opposite
conclusion – that defendant remained ignorant of the apparently
confidential criminal investigation. Johnstone testified that he
never informed LiGreci of the ongoing criminal investigation, and
he explained that he did not want certain people to learn about
the criminal investigation, including defendant. Accordingly,
the only relevant proof in the record is that, at a minimum, the
police department was attempting to keep LiGreci and defendant
ignorant of the criminal investigation. Further, the only
reasonable inference to draw from Johnstone's testimony was that
he understood defendant to be unaware of the criminal
investigation at that point in time. Accordingly, no rational
juror could find that defendant knew that LeGreci was not
authorized to give the directive due to an ongoing criminal
investigation (compare People v Robinson, 60 NY2d 982, 986
[1983]). Based on the foregoing, we reverse defendant's
remaining convictions of official misconduct under count 9 of the
indictment and coercion in the first degree under count 10 of the
indictment. Given our conclusion that the evidence was legally
insufficient in regard to each of defendant's convictions, his
remaining contentions are rendered academic.

     Peters, P.J., Rose and Lynch, JJ., concur.



      ORDERED that the judgment is reversed, on the law, and
indictment dismissed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
