A person is guilty of bribery in the third degree when he confers, or offers or agrees to confer, any benefit upon a public servant upon an agreement or understanding that such public servant's vote, opinion, judgment, action, decision or exercise of discretion as a public servant will thereby be influenced.

Bribery in the third degree is a class D felony.

A person is guilty of bribery in the second degree when he confers, or offers or agrees to confer, any benefit valued in excess of ten thousand dollars upon a public servant upon an agreement or understanding that such public servant's vote, opinion, judgment, action, decision or exercise of discretion as a public servant will thereby be influenced.

Bribery in the second degree is a class C felony.

A person is guilty of bribery in the first degree when he confers, or offers or agrees to confer, any benefit upon a public servant upon an agreement or understanding that such public servant's vote, opinion, judgment, action, decision or exercise of discretion as a public servant will thereby be influenced in the investigation, arrest, detention, prosecution, or incarceration of any person for the commission or alleged commission of a class A felony defined in article two hundred twenty of the penal law or an attempt to commit any such class A felony.

Bribery in the first degree is a class B felony.

In any prosecution for bribery, it is a defense that the defendant conferred or agreed to confer the benefit involved upon the public servant involved as a result of conduct of the latter constituting larceny committed by means of extortion, or an attempt to commit the same, or coercion, or an attempt to commit coercion.

A public servant is guilty of bribe receiving in the third degree when he solicits, accepts or agrees to accept any benefit from another person upon an agreement or understanding that his vote, opinion, judgment, action, decision or exercise of discretion as a public servant will thereby be influenced.

Bribe receiving in the third degree is a class D felony

A public servant is guilty of bribe receiving in the second degree when he solicits, accepts or agrees to accept any benefit valued in excess of ten thousand dollars from another person upon an agreement or understanding that his vote, opinion, judgment, action, decision or exercise of discretion as a public servant will thereby be influenced.

Bribe receiving in the second degree is a class C felony.

A public servant is guilty of bribe receiving in the first degree when he solicits, accepts or agrees to accept any benefit from another person upon an agreement or understanding that his vote, opinion, judgment, action, decision or exercise of discretion as a public servant will thereby be influenced in the investigation, arrest, detention, prosecution or incarceration of any person for the commission or alleged commission of a class A felony defined in article two hundred twenty of the penal law or an attempt to commit any such class A felony.

Bribe receiving in the first degree is a class B felony.

1. The crimes of (a) bribe receiving, and (b) larceny committed by means of extortion, attempt to commit the same, coercion and attempt to commit coercion, are not mutually exclusive, and it is no defense to a prosecution for bribe receiving that, by reason of the same conduct, the defendant also committed one of such other specified crimes.

2. It is no defense to a prosecution pursuant to the provisions of this article that the public servant did not have power or authority to perform the act or omission for which the alleged bribe, gratuity or reward was given.

A person is guilty of rewarding official misconduct in the second degree when he knowingly confers, or offers or agrees to confer, any benefit upon a public servant for having violated his duty as a public servant.

Rewarding official misconduct in the second degree is a class E felony.

A person is guilty of rewarding official misconduct in the first degree when he knowingly confers, or offers or agrees to confer, any benefit upon a public servant for having violated his duty as a public servant in the investigation, arrest, detention, prosecution, or incarceration of any person for the commission or alleged commission of a class A felony defined in article two hundred twenty of the penal law or the attempt to commit any such class A felony.

Rewarding official misconduct in the first degree is a class C felony.

A public servant is guilty of receiving reward for official misconduct in the second degree when he solicits, accepts or agrees to accept any benefit from another person for having violated his duty as a public servant.

Receiving reward for official misconduct in the second degree is a class E felony.

A public servant is guilty of receiving reward for official misconduct in the first degree when he solicits, accepts or agrees to accept any benefit from another person for having violated his duty as a public servant in the investigation, arrest, detention, prosecution, or incarceration of any person for the commission or alleged commission of a class A felony defined in article two hundred twenty of the penal law or the attempt to commit any such class A felony.

Receiving reward for official misconduct in the first degree is a class C felony.

A person is guilty of giving unlawful gratuities when he knowingly confers, or offers or agrees to confer, any benefit upon a public servant for having engaged in official conduct which he was required or authorized to perform, and for which he was not entitled to any special or additional compensation.

Giving unlawful gratuities is a class A misdemeanor.

A public servant is guilty of receiving unlawful gratuities when he solicits, accepts or agrees to accept any benefit for having engaged in official conduct which he was required or authorized to perform, and for which he was not entitled to any special or additional compensation.

Receiving unlawful gratuities is a class A misdemeanor.

Traub & Traub, P. C., New York City (Doris G. Traub of counsel), for appellant.

Robert M. Morgenthau, District Attorney of New York County, New York City (Birgit E. Kollmar and James M. McGuire of counsel), for respondent.

Chief Judge WACHTLER and Judges KAYE and TITONE concur with Judge BELLACOSA; Judge SIMONS dissents in part and votes to modify in another opinion in which Judge HANCOCK, JR., concurs; Judge SMITH taking no part.

*172 BELLACOSA, J.

This prosecution stems from two separate incidents of alleged bribery by defendant of a municipal fire safety inspector and an undercover investigator. The amounts involved, $310 and $100, are relatively petty. However, the object of these municipal-corruption-type crimes — official disregard of fire safety violations in two Manhattan hotels — is potentially very grave.

The appeal by a grant of leave from a Judge of this Court is from an Appellate Division order affirming the conviction on both bribery counts after a jury trial. Two primary issues are presented. The first, which the People concede is an open question, is whether the key phrase "agreement or understanding" in Penal Law § 200.00 means only "intent to influence", or whether its plain language imposes on the People the requirement to prove something more than simple intent. Because we acknowledge and give effect to the Legislature's addition of a new "gist" (People v Harper, 75 N.Y.2d 313, 317) *173 to the statute that is distinct from simple intent, we must also determine whether the People presented evidence sufficient to avoid dismissal of the charge irrespective of error in the instruction to the jury on this point.

The second count of the conviction against defendant implicates the separate legal issue of whether the People presented independent prima facie evidence of a conspiracy justifying use of a coconspirator's recorded hearsay evidence against defendant. We conclude that no prima facie proof of a conspiracy was made out at any time during the trial warranting admission of the recorded hearsay statements of the alleged coconspirator. The order of the Appellate Division should be reversed and both counts of bribery in the third degree should be dismissed.

Defendant, Tran, was the fire safety director of two Manhattan hotels with outstanding fire safety violations. On February 2, 1989, an inspector from the New York City Department of Buildings inspected the Carter Hotel. The inspector told defendant that a new violation would be reported. Defendant then put $310 into the shirt pocket of the inspector, who immediately removed the money and said he could not accept it and that the violation would still be reported. The inspector testified that defendant told him to keep the money "even if [he] wrote a violation," and "do whatever [he] had to do, but keep [the money]." The inspector left and promptly turned the money over to the New York City Department of Investigation, Inspector General's office. That is the whole of the People's evidence on count one.

On March 16, 1989, an investigator from the Department of Investigation, Inspector General's office, went to the second hotel, the Longacre, posing as an inspector from the Department of Buildings. After appearing to conduct an inspection, the investigator informed defendant that the hotel had failed to meet certain legal requirements. He also told defendant that he wanted to help him out but was obliged to report the violation. He added that he would hold off writing the violation for the rest of the day because he had other places to go. Defendant said and did nothing in response. When the investigator said he would return later but would telephone first, defendant urged him to return even if defendant was not available. Defendant was not present when the investigator returned. Instead, a hotel employee, Chu, who had been present when the investigator was there earlier, asked the *174 investigator to wait for defendant. When the investigator said he could not wait, Chu gave him a $100 bill. By means of the investigator's hidden tape recorder, the entire dialogue between the investigator and Chu was captured. A portion of the tape recording reflects that when the investigator asked what the $100 was for, Chu replied: "I don't know. Maybe, you clear up for him something here, about Local Law 16. That's what your here before [as in transcript]." Chu said she would tell defendant to call the investigator, but no further contact was made among any of the participants.

Defendant was subsequently charged with two counts of bribery in the third degree, one as to each incident. At the jury trial, defendant objected to the admission of the taped hearsay statements of Chu, claiming that a prima facie case of conspiracy had not been presented or proven and, absent that, the hearsay statements could not be admitted under the coconspirator exception. The trial court allowed the People to play the full tape recording of the conversation between the investigator and Chu, including both hearsay and verbal act statements, expressly reserving its decision on defendant's objection.

Following the close of the People's case, defense counsel moved to dismiss both counts for failure of proof. The trial court denied the motion, stating that while there was no "agreement," there may have been an "understanding," and that the presence or absence of an understanding constituted an issue of fact for the jury. The court further indicated that an "understanding" could consist of an "expectancy * * * that hopefully [the inspector] would not file" the violation. The defense presented no evidence at trial.

The trial court instructed the jury that the words "upon an agreement or understanding" refer to the defendant's understanding. The court added that those words "as applied to this case, are equivalent to the words, `with intent to.'" The court defined intent to mean: "to have a conscious objective to cause a result or engage in the conduct or act with which the defendant is charged." Defendant took exception to the instruction.

While the jury was deliberating, it reported to the court that it had reached a verdict solely with respect to the first count. The court, on the record but not to the jury, indicated that there was insufficient evidence of a conspiracy to render admissible the objected-to taped statement and, as a result, it *175 would set aside any guilty verdict rendered on the second count of the indictment. It nevertheless urged the jury to continue deliberations and was persuaded by the prosecutor to further reserve on the objection until the jury reached a verdict on the second count. The jury then returned a guilty verdict on count two. Defendant's objection was then overruled and the motion to set aside the verdict was denied.

The Appellate Division affirmed the judgment of conviction (178 AD2d 247). Without commenting on the trial court's charge to the jury, the Appellate Division concluded that "the evidence permitted the conclusion that defendant's conscious objective was to influence the conduct of the officials with money, which on both occasions was delivered" (id.). The Appellate Division added that the disputed evidence was admissible under the coconspirator exception to the hearsay rule "since the evidence established a prima facie case of conspiracy independent of the statements" (id.).

I.

The crime of bribery in the third degree is committed when a person "confers, or offers or agrees to confer, any benefit upon a public servant upon an agreement or understanding that such public servant's vote, opinion, judgment, action, decision or exercise of discretion as a public servant will thereby be influenced" (Penal Law § 200.00 [emphasis added]).

The statutory history hints at the significant distinction between "intent" and "agreement or understanding." Predecessor statutes to Penal Law § 200.00, in effect, required only the intent to influence a public official in the exercise of the official's powers. In 1965, as part of an extensive revision of the Penal Law, the Legislature removed the intent language and substituted the requirement of an "agreement or understanding." The legislative history of the 1965 revision of Penal Law § 200.00 indicates that the bribery laws were "analyzed, re-appraised, condensed, regrouped and re-written" (Second Interim Report of NY Temp Commn on Revision of Penal Law and Crim Code [1963 NY Legis Doc No. 8], at 38), but that there was no intent to make "major substantive changes in existing law" (Commn Staff Notes, reprinted in Proposed NY Penal Law [Study Bill, 1964 Senate Int 3918, Assembly Int 5376] art 205, at 371 [1964]). Of the five statutes which were consolidated into Penal Law § 200.00, three used the phrase "with intent to influence" (former Penal Law §§ 371, 378, *176 1822). Two others, former Penal Law §§ 465 and 1233, did not use the words "with intent to influence," but kept the focus on the mental state of the bribe maker. In regrouping and rewriting these statutes as revised Penal Law § 200.00, the Legislature introduced the new core ingredient "upon an agreement or understanding." While this language continued the focus on the mental state of the bribe maker, it signaled a new and different notion. The key element was changed on its face to something qualitatively and quantitatively higher than the long-standing, simple "intent to influence". Whether it qualifies as a "major substantive change" (Commn Staff Notes, reprinted in Proposed NY Penal Law [Study Bill, 1964 Senate Int 3918, Assembly Int 5376] art 205, at 371 [1964] [emphasis added]) is not the point. It is a substantive change. The dissent would ignore the change entirely, would extirpate from the statute the very words that we have said constitute the "gist of the crime" (People v Harper, 75 N.Y.2d 313, 317, supra) and would rewrite its own preferred word, intent, into the statute as a synonym — which it is not — for the words the Legislature adopted.

Within that framework, we agree with the observation of the trial court that the statute disjunctively requires either a mutual "agreement" between the bribe maker and the public servant, or at least a unilateral "understanding" in the mind of the bribe maker that the bribe will influence the public servant's conduct. The trial court ran into difficulty, however, when it then equated "agreement or understanding" with "intent" and, in effect, defined "unilateral understanding" as the functional equivalent of and no more than the traditional standby, intent. The three words are not synonymous. Under ordinary statutory construction, they cannot mean the same thing and must be given their nuanced intended effects. Under long-standing statutory interpretation rubrics, we may not ignore the Legislature's switch in the nucleic words of this statute. Nor can we, by interpretation, strip a critical new word of its plain and intended meaning, rendering it useless or superfluous (see, Matter of Alonzo M. v New York City Dept. of Probation, 72 N.Y.2d 662, 665-666; McKinney's Cons Laws of NY, Book 1, Statutes § 231; see also, People v Dethloff, 283 N.Y. 309, 315).

Having misconstrued the specific culpable mental state requirement for this defined crime, the trial court then failed to properly rule on the sufficiency of the People's evidence. We conclude that the prosecution, to satisfy this indispensable *177 element of the statutory prescription, had to prove at least an "understanding" — the Legislature's word, not ours — in the mind of the bribe maker that the bribe receiver would effectuate the proscribed corruption of public process and was affected to do so by the actus reus of this particular crime. The prosecution utterly failed to satisfy that essential burden in this case.

While we have not previously construed the particular phrase in Penal Law § 200.00, we have spoken to identical language in another section dealing with bribe receiving by a witness (Penal Law § 215.05). In People v Harper (75 N.Y.2d 313, supra), because an agreement to "drop charges" against an assailant in exchange for money evinced nothing about the promisor's intention to appear and testify truthfully in the event that the prosecutor decided to press the charge, we held that a statutory agreement or understanding was not proven. This Court pointedly said that "[t]he gist of the crime is not the payment of money, but rather the `agreement or understanding' under which a witness accepts or agrees to accept a benefit" (id., at 317, citing People v Arcadi, 79 AD2d 845, 846, affd on App Div 54 N.Y.2d 981). To be sure, Harper and Arcadi have some differences compared to the instant case, but our analysis and articulation in those cases nevertheless help to buttress our interpretation here, despite the prosecutor's characterization of the relevant references as mere nonauthoritative dicta.

Pertinently, the recommended pattern criminal jury instruction for Penal Law § 200.00 explains that if a benefit is offered or conferred with only "the hope that the public servant would be influenced thereby, then the crime of bribe giving is not committed" (3 CJI[NY] PL 200.00, at 1379 [Mar. 24, 1989]). That is precisely what happened in this case. Indeed, the trial court acknowledged that an "understanding" could be unilateral, but then diluted the force and meaning of the word by explaining that nothing more was necessary than the defendant's hope that the benefit bestowed would induce a forbidden favor. A mere "hope" and a statutory "understanding", in common parlance and in criminal jurisprudence, are miles apart.

We do not need to speculate on what the Legislature intended, for we are confronted with the best evidence of its intention in its new core words "agreement or understanding". "[C]itizens are [not] free to offer cash to public officials" *178 (dissenting opn, at 181) nor is this defendant declared "innocent" by our determination (dissenting opn, at 182). Ironically, the crime of attempted bribery, for example, either as a separate charge or lesser included count, may be proved when a prosecutor satisfies its burden of proof by a showing of only intent (see, Penal Law § 110.00). When a court concludes that the People have failed to satisfy their burden, "innocence" flows from our firmly and long-respected presumption of innocence until proven guilty.

We thus resolve the open statutory interpretation question by defining the disjunctive word "understanding" as at least a unilateral perception or belief by a perpetrator that the "public servant's vote, opinion, judgment, action, decision or exercise of discretion as a public servant will thereby be influenced" (Penal Law § 200.00). This does not at all, as the dissent misconstrues it, "hinge" on some "mens rea of the bribe-receiver" (dissenting opn, at 181).

Our interpretation of the statute requires that we next address defendant's argument concerning his motion attacking the sufficiency of the proof adduced on the first bribery charge. When the trial court ruled in this regard, it not only diminished the correct level of the statutory phrase, it also overlooked the absence of any evidence whatsoever of an "understanding," as we now definitively construe it, by this defendant on which the jury could return a guilty verdict. We have not injected a "novel" culpable mental state in this statute. The Legislature, as is its role, did that. In construing the Legislature's word, we in our judicial role can say that the element of understanding can be satisfied unilaterally, but we cannot say as the dissent would that it can be something less than an understanding.

True, these cases are usually circumstantial and inferential; the underlying crimes are, after all, often perpetrated subtly with winks, nods and walks in the park. However, those difficulties cannot justify a deviation from the rigorous rules, especially for proof of all elements of a crime beyond a reasonable doubt. Here, there is no evidence from which any "understanding," as required by the statute, can be attributed to the defendant. That is a classic failure of proof on insufficiency grounds requiring a quite ordinary and traditional dismissal of the criminal charge. Thus, the first bribery count should have been dismissed.

*179 II.

The second count presents a distinct issue: whether the People presented a prima facie case of conspiracy as the sine qua non to the admission of recorded hearsay statements by an alleged coconspirator. The elementary governing principles are well known. A declaration by a coconspirator during the course and in furtherance of the conspiracy is admissible against another coconspirator as an exception to the hearsay rule (People v Rastelli, 37 N.Y.2d 240, 244, cert denied 423 US 995). However, this evidence may be admitted only upon a showing that a prima facie case of conspiracy has been established (People v Salko, 47 N.Y.2d 230, 237, rearg denied 47 N.Y.2d 1010; People v Rastelli, supra). "Of course, the determination whether a prima facie case of conspiracy has been established must be made without recourse to the declarations sought to be introduced" (People v Salko, supra, at 238; see also, Richardson, Evidence § 244 [Prince 10th ed]).

The People's evidence on the second count established that defendant Tran and his alleged coconspirator Chu were both hotel employees, that defendant urged an undercover investigator to return to one of the hotels on the day in question, and that Chu gave $100 to the investigator when he returned. The People argue that Chu's recorded statement that the purpose of the payment was to "clear up * * * something here, about Local Law 16" is an admissible non-hearsay verbal act under People v Salko (47 N.Y.2d 230, supra). Salko would allow the admission of statements which are not offered for the truth of the matter asserted, but merely to give "legal effect to the conduct which they accompany" (id., at 239). Although Chu's verbal act is admissible, it does not resolve the problem of this case. That evidence, not admitted for its truth, at best served to establish only that Chu paid the investigator $100 to influence his handling of the hotel's alleged Local Laws, 1984, No. 16 violations. It does not and cannot be used to supply the prima facie foundation or connection to defendant as part of a conspiracy. Moreover, to allow the verbal act exception from Salko to be bootstrapped in this fashion in the circumstances of this case would stamp down the rule itself.

This case is very different from Salko (47 N.Y.2d 230, supra), where the defendant made admissible statements both to the police officer receiving the bribe and to the investigating District Attorney linking defendant with the witness coconspirator. *180 Those statements by themselves were prima facie proof of the predicate conspiracy, which rendered admissible a coconspirator's hearsay statements. There is not only nothing like that here, there is nothing here. Where circumstantial evidence is weakly held together by "subjective inferential links based on probabilities of low grade or insufficient degree" (People v Cleague, 22 N.Y.2d 363, 367), a prima facie case will not be deemed satisfied. Since a prima facie case of a conspiracy was never made out, the recorded hearsay statements of Chu referring to defendant in any respect never should have been allowed into evidence. Having been admitted conditionally on a reserved objection, the trial court should have stuck to its original assessment and ultimately sustained the objection and set aside the flawed verdict. Lacking any prima facie linchpin tying defendant to Chu, count two fails for insufficiency of proof.

Accordingly, the order of the Appellate Division should be reversed and both counts of the indictment dismissed.

SIMONS, J. (dissenting in part).

I would affirm insofar as defendant was convicted of violating Penal Law § 200.00 under the first count of the indictment. The evidence established that defendant offered a benefit to a public official intending to influence official action. He did so by deliberately stuffing $310 into the pocket of the investigator inspecting the Carter Hotel, after the inspector had identified a code violation. In my view, that conduct constituted bribery, third degree, as defined by the statute. The majority concludes the indictment must fail, however, because there was no evidence establishing that the bribe-giver "understood" the inspector's actions would be influenced thereby. If defendant did not understand this, it is difficult to imagine what could have been in his mind. At the very least, the evidence was sufficient to permit the jury to infer that defendant understood his payment would procure a benefit. The majority apparently believes it was foreclosed from drawing such an inference absent evidence that the inspector accepted or acquiesced in the bribe. The statute, however, requires only the intent to influence official action and defendant's conduct was no less culpable merely because the investigator reported the incident to his superiors. Were it otherwise, there could be no bribery of undercover agents.

I disagree with the majority's interpretation of the statute because it establishes not only a novel mens rea for the crime — one inconsistent with the statute's legislative history and the New York law on bribe-giving generally — but makes bribery *181 of a public official hinge upon the mens rea of the bribe-receiver, not the bribe-giver. While the majority disclaims any requirement of mutuality, its dismissal of the indictment in this case establishes a requirement of nothing less. Had the majority concluded only that the court's instructions were in error for failing to correspond with its interpretation of the statute, it would remit for a new trial. Its decision to dismiss rests upon a determination that the evidence is insufficient because the inspector did not exhibit some evidence of an "understanding"; defendant had only the hope that the money would influence official action. The crime does not require such evidence. It is the intent and belief of the bribe-giver that is relevant, not that of the receiver. The Legislature could hardly have intended that citizens are free to offer cash to public officials just so long as the officials do nothing to prompt the offer.

The gist of the crime of bribery is the wrong done to the people by the corruption in the public service (People v Chapman, 13 N.Y.2d 97, 101; People v Lafaro, 250 N.Y. 336, 342).^[*] Indeed, it is irrelevant that the result the bribe-giver seeks is lawful and proper (see, Donnino, Practice Commentary, McKinney's Cons Laws of NY, Book 39, Penal Law art 200, at 454). It is the effort to bypass the orderly processes of government to secure an impermissible advantage that is criminal. That being so, the purpose of the bribery statutes is satisfied if the bribe-giver intends his act to influence a public servant's conduct.

The language of the statute requires no more. It provides:

"A person is guilty of bribery in the third degree when he confers, or offers or agrees to confer, any benefit upon a public servant upon an agreement or understanding that such public servant's vote, opinion, judgment, action, decision or exercise of discretion as a public servant will thereby be influenced" (Penal Law § 200.00).

*182 The operative words are "confers, or offers or agrees to confer." The courts below concluded this element of the crime was satisfied if defendant, by his conduct, intended to influence the investigator's conduct. That construction is consistent with the crime as it was defined in sections 371, 378, 465, 1233 and 1822 of the former Penal Law from which section 200.00 is derived (see, People v Grossman, 145 Misc 781, 782) and we are advised by the revisors that in enacting the new statute, "no major or substantive changes" were intended (see, Commn Staff Notes, reprinted in Proposed NY Penal Law [Study Bill, 1964 Senate Int 3918, Assembly Int 5376] art 205, at 371 [1964]; Donnino, Practice Commentary, McKinney's Cons Laws of NY, Book 39, at 453; see also, People v Brown, 48 AD2d 95). The majority effectively writes the term "offer" out of the statute by focusing on the phrase "agreement or understanding" and thus making the crime dependent on the acts of the bribe-receiver. In my view, the phrase "agreement or understanding" was not intended to require mutuality, as the majority concedes, or even acquiescence from the receiver. The words, as found in the present statute and in former Penal Law § 2440 (bribing a witness), have been correctly construed to be "tantamount to `with the intent'" (People v Kathan, 136 App Div 303, 307 [addressing Penal Law § 2440, bribing a witness]; People v Brown, 48 AD2d 95; see also, People v Brown, 40 N.Y.2d 381, 395 [Breitel, Ch. J., dissenting, "the crime of bribery did not require any agreement or understanding to accept a bribe"]).

This interpretation harmonizes with New York's other bribery statutes which provide that the mens rea requirement for the crime is only an intent to bribe (see, Penal Law § 180.00; Public Officers Law § 75). Thus, the majority's determination that defendant is innocent rests upon the fortuity that defendant bribed a public official, for those bribery statutes dealing with business persons, labor officials, sports participants and others base the crime expressly or implicitly on the intent of the bribe-giver. There would seem to be no reason why the bribery of public servants should require some greater quantum of proof before the crime is committed, when the revisors disclaimed any intent to make a substantive change in the former statute which required none. Indeed, it is not clear that the majority's interpretation actually requires a greater quantum of proof. By defining "understanding" as a "unilateral perception or belief" (majority opn, at 178), the majority, *183 in my view, is saying nothing more than that the bribe-giver has the intention to influence official action.

The majority also support their view by reference to People v Harper (75 N.Y.2d 313, supra) and other decisions of this Court involving bribe-receiving (see, majority opn, at 177). The mental state of the other party to the transaction is significant in the crime of bribe-receiving to insure that the receiver understands the purpose of the transaction, as those cases hold, but it is irrelevant in the case of bribe-giving, such as the one before us, where the bribe-giver has made his purpose with respect to a specific matter manifest.

Accordingly, I dissent and would affirm the judgment insofar as it finds defendant guilty on the first count of the indictment.

Order reversed and indictment dismissed.

[*] This continued to be the essence of the crime, even after the revision of the Penal Law (see, People v Graham, 57 AD2d 478, 482, quoting from a former Practice Commentaries to Penal Law § 200.00: "`The gist of the crime of bribery is the effort to secure an impermissible advantage'"). People v Harper (75 N.Y.2d 313), relied upon by the majority and cited extensively in its opinion (see, majority opn, at 176, 177), involved a charge of bribe-receiving by a witness, in violation of Penal Law § 215.05. The "gist" of that crime (see, majority opn, at 176) is not relevant to bribe-giving under Penal Law § 200.00.

Eric A. Seiff and Frances S. Cohen for appellant.

Thomas A. Duffy, Jr., Deputy Attorney-General (Michael Shapiro and Jill Simon of counsel), for respondent.

Chief Judge COOKE and Judges JASEN, JONES, WACHTLER, MEYER and KAYE concur.

*324SIMONS, J.

Defendant appeals from an order of the Appellate Division, which affirmed, with one Justice dissenting, a judgment entered on a jury verdict finding him guilty of bribe receiving in the second degree (Penal Law, § 200.10). The conviction came after juries had failed to agree in two previous trials.

The principal issues raised on this appeal are the legal sufficiency of the evidence to establish that the alleged bribe was offered to defendant to affect his judgment or action "as a public servant," and whether the conviction must be reversed because a variation between the definition of the crime in the court's charge and the language contained in the indictment improperly changed the theory of the prosecution and prejudiced the defense.

Defendant was employed as a court clerk for a Criminal Court in New York City. On March 15, 1979, he was approached by James Villafana, an undercover agent for the office of the Special Prosecutor posing as a gypsy cab *325 driver. Villafana had been issued several traffic summonses under an assumed name as part of a continuing investigation into allegations that court workers were "fixing" summonses in return for bribes. He took the summonses to traffic court, presented them to defendant and asked for his help. Defendant explained that one of the tickets, issued for driving an uninsured vehicle, would result in a minimum fine of $100 and revocation of Villafana's driver's license, and that redemption of the license would cost $300. He explained that the others concerned minor violations which would probably result in small fines of $5 or $10. Defendant then told Villafana that for $100 he could get the "uninsured" ticket dismissed. After Villafana agreed, defendant took him into a locked rest-room where he instructed Villafana how to plead to the charges and where, the prosecution contended, he accepted the $100 in bribe money. Defendant then took the agent to the courtroom and assisted him in pleading and obtaining receipts for the small fines. The "uninsured" ticket was dismissed, not through any act of defendant but because it was invalid on the face: Villafana was not the owner of the uninsured vehicle. At the time of the transaction, Villafana was wearing a recording device and the tapes of his conversations with defendant were played to the jury during the trial.

Defendant was not arrested until some time later and none of the bribe money was traced to him. He denied soliciting or receiving it.

Defendant's first point on this appeal, and the point on which the Justices at the Appellate Division disagreed, is that the statute prohibits solicitation or receipt of money to influence his judgment or action and that because he did not have the authority in his job to affect the disposition of Villafana's tickets, he could not have been guilty of bribe receiving in the second degree. The statute defines the crime as follows: "A public servant is guilty of bribe receiving in the second degree when he solicits, accepts or agrees to accept any benefit from another person upon an agreement or understanding that his vote, opinion, judgment, action, decision or exercise of discretion as a public servant will thereby be influenced." (Penal Law, § 200.10.) The *326 proof necessary to establish the crime must show, at a minimum, that a public servant solicited or agreed to accept a benefit from another person upon an agreement or understanding that his action as a public servant would thereby be influenced. The statute requires no act beyond the agreement or understanding, however, and defendant's inability to influence the disposition of traffic tickets did not necessarily remove his conduct from that proscribed by it (see People v Chapman, 13 N.Y.2d 97). If the briber sought to affect his judgment or action in his capacity as a public servant and within the "colorable" authority of the public position he held at the time of the bribe offer, the crime was committed. The decisions hold that "colorable" authority exists when a bribe is offered to a public official "to act corruptly in a matter to which he bears some official relation, though the act itself may be technically beyond his official powers or duties" (People v Lafaro, 250 N.Y. 336, 342; see People v Herskowitz, 41 N.Y.2d 1094). Manifestly, as a clerk in the courts, defendant came within this rule and his conduct constituted a crime although he did not have authority to dismiss traffic tickets.

Defendant next challenges the court's instructions to the jury. He contends that they differed significantly from the theory of the crime charged in the indictment and therefore require reversal. Although the statute proscribes solicitation or an agreement to accept or acceptance of a bribe, the indictment and the bill of particulars charged that defendant "solicited, agreed to accept and accepted" a bribe. Defendant contends that the prosecution was bound by this use of conjunctive language and that in the absence of an amendment to the indictment and bill of particulars the court's instructions in the language of the statute rather than the language of the indictment were error and the judgment must be reversed inasmuch as the jury's verdict was based upon them.

It is familiar law that the requirement found in section 6 of article I of the State Constitution that "[n]o person shall be held to answer for a capital or otherwise infamous crime * * * unless on indictment of a grand jury" serves a threefold purpose. First, an indictment provides the defendant with fair notice of the accusations made against him to *327 enable him to prepare a defense. Second, it insures that the crime for which defendant is tried is the same as intended by the Grand Jury, and thus prevents the court or prosecutor from usurping the Grand Jury's powers. Finally, the indictment protects against double jeopardy by specifying the particular crime for which a defendant has been tried (see People v Spann, 56 N.Y.2d 469, 472; People v Iannone, 45 N.Y.2d 589, 594-595).

Defendant asserts that this indictment did not give him fair notice of the prosecution's theory of the crime. We disagree. Defense counsel was not hampered in his ability to prepare by the use of the language in the indictment and bill of particulars. At the beginning of the trial he asked the court to require the People, if they were to sustain their burden, to prove that defendant solicited and agreed to accept and accepted a bribe. In support of this pretrial motion he contended that he had relied on the bill of particulars as notice of the prosecutor's trial strategy and it was crucial to the defense that it not be changed. Defense counsel had participated in defendant's second trial, however, and he had participated in the preliminaries to the third trial. He was aware of the prosecution's strategy and he admitted as much. The court correctly denied counsel's motion (see People v Taylor, 74 AD2d 177, 181).

Moreover, the trial court's charge that the jury could find defendant guilty if it found that he either solicited or agreed to accept or accepted a bribe, rather than requiring cumulative proof of all three acts, did not usurp the Grand Jury's powers. It correctly advised the trial jurors that the prosecution need not prove allegations in an indictment that are extraneous to the material elements of the offense charged (see People v Rooney, 57 N.Y.2d 822; People v Spann, 56 N.Y.2d 469, supra). The use of the conjunctive "and" rather than the disjunctive "or" in the indictment charged more than the People were required to prove under the statute and did not bind the prosecution to prove all three acts (see People v Clougher, 246 N.Y. 106, 112). The rule was stated in People v Nicholas (35 AD2d 18, 20 [COOKE, J.]): "Where an offense may be committed by doing any one of several things, the indictment may, in a single count, group them together and charge the defendant with *328 having committed them all, and a conviction may be had on proof of the commission of any one of the things, without proof of the commission of the others (Bork v. People, 91 N.Y. 5, 13; People v. Dabek, 18 AD2d 773; People v. Farson, 218 App. Div. 488, 490, affd. 244 N.Y. 413)."

People v Rooney (supra) is to the point. In that criminally negligent homicide case, the indictment charged that defendant "operated a motor vehicle at an excessive rate of speed, on the wrong side of the road while intoxicated and struck another vehicle" causing the death of another person. Defendant contended that he could not be found guilty of criminally negligent homicide unless the jury found that he had committed all of the acts mentioned in the indictment, a matter of some consequence because the jury by its verdict finding criminal negligence had also acquitted defendant of a separate count of driving while under the influence of alcohol. Because the allegation of driving while under the influence was not necessary to sustain the conviction for criminally negligent homicide, we sustained the conviction.

Similarly, in People v Spann (56 N.Y.2d 469, supra), we held that the trial court had not constructively amended an indictment charging robbery by allowing proof that the defendant stole drugs, rather than jewelry or money as alleged in the indictment. The defendant in his testimony had admitted stealing the drugs, and, because the nature of the property stolen was not a material element of the charge which required only proof that "property" was stolen, the robbery conviction was affirmed. In People v Feldman (50 N.Y.2d 500) we considered the appeal of a conviction of criminal sale of a controlled substance in the third degree where the indictment charged the defendant with selling drugs to an undercover policeman and the evidence at trial revealed that the drugs were actually sold to an informant who in turn sold them to the policeman. We held that the person to whom the drugs were sold was immaterial to the corpus delicti of the crime charged.

To be distinguished from these and similar cases are those in which the jury is charged in a manner that changes the theory of the prosecution from that in the indictment and bill of particulars, or otherwise prejudices *329 the defendant on the merits. Thus, an indictment for sodomy which included a charge that forcible compulsion was accomplished "by means of physical force which overcame earnest resistance" could not provide a basis for a jury charge that guilt could be premised on a finding of physical force or a threat placing the victim in fear of immediate death or physical injury. The variation from the theory of prosecution found in the indictment did not merely alter a factual incident in a way still consistent with that theory, but in fact changed the theory itself (see People v Kaminski, 58 N.Y.2d 886; see, also, People v Barnes, 50 N.Y.2d 375).

Defendant's two remaining points require little discussion. First, he contends that the court erred in failing to hold a hearing to consider whether the prosecutor used his peremptory challenges during jury selection to disqualify substantially more black veniremen than white veniremen. Counsel contends that the challenges were used to systematically exclude minority jurors. We have held recently, however, that such hearings are not required and that a prosecutor is not required to disclose his reasons for excluding prospective jurors in a particular case (People v McCray, 57 N.Y.2d 542, cert den ___ US ___, 103 S Ct 2438; but see McCray v Abrams, 576 F Supp 1244). Defendant asks us to reconsider that decision but we see no reason to do so, particularly in view of the record in this case which fails to contain evidence of systematic exclusion.

Finally, defendant contends the court erred in restricting his summation because it prevented him from commenting on the investigator's failure to "tail" defendant after defendant received the bribe money. The ruling was discretionary and well within a stipulation made by counsel earlier in the trial not to discuss certain matters. It presents no grounds for reversal.

Accordingly, the order of the Appellate Division should be affirmed.

Order affirmed.

605*605 Charles J. Hynes, District Attorney, Brooklyn (Leonard Joblove, Seth M. Lieberman and Victor Barall of counsel), for appellant.

White & White, New York City (Diarmuid White and Brendan White of counsel), and Ronald P. Fischetti for respondent.

Chief Judge KAYE and Judges ROSENBLATT, GRAFFEO, READ and R.S. SMITH concur with Judge CIPARICK; Judge G.B. SMITH dissents in part and votes to affirm in a separate opinion. 636*636

606*606 OPINION OF THE COURT

CIPARICK, J.

We are asked to decide whether evidence presented to a grand jury that a judge accepted a benefit for violation of his duty as a public servant, as defined by the Rules of Judicial Conduct (22 NYCRR part 100), is legally sufficient to support six counts of receiving reward for official misconduct in the second degree (Penal Law § 200.25). We hold that the People's reliance on the Rules to support the allegation that defendant violated his official duties was not improper. The Rules set forth a constitutionally mandated duty upon the judiciary and, when combined with the additional factor of receiving a reward, a violation of that duty may serve as a basis for prosecution under Penal Law § 200.25. We conclude that the evidence presented to the grand jury was legally sufficient to support the six counts of receiving reward for official misconduct in the second degree. The additional count charging defendant with official misconduct (Penal Law § 195.00 [2]) was properly dismissed.

I.

Defendant was a justice of the Supreme Court of the State of New York who at the time of these events was assigned to a matrimonial part in Kings County. After investigation, the People presented evidence to the grand jury that, from October 2001 through March 2003, defendant engaged in a course of conduct where on numerous occasions he violated his duty as a public servant for which he received benefits of cash and other gratuities. The People presented evidence that defendant and 607*607 Paul Siminovsky, an attorney who regularly appeared before him, developed a relationship in 2000 wherein Siminovsky would buy defendant meals and give him gifts expecting and receiving preferential treatment in return. This relationship blossomed to the extent that by 2003, according to the testimony before the grand jury, Siminovsky was buying defendant lunch three to four times a week and drinks in the evening between three and five times a week.

In the first count under consideration here, the grand jury heard evidence that defendant conducted improper ex parte conversations about the "Levi case" with Siminovsky, for which defendant received a box of cigars as a reward. Specifically, Siminovsky represented Avraham Levi in a divorce proceeding which was pending before defendant (itself allegedly a circumvention of the random assignment system, facilitated by another Siminovsky client and defendant's court clerk). The grand jury heard that while the Levi case was before defendant, the Kings County District Attorney's office began to monitor defendant's robing room by video and audio surveillance. Among the ex parte conversations captured was one where defendant is heard saying that Siminovsky would prevail in the Levi case even though he did not deserve it. Defendant also instructed Siminovsky to subpoena an expert witness who was unwilling to appear before the court and instructed him what questions to ask of the expert. Defendant told Siminovsky that he would not order the sale of the marital residence and that Mr. Levi would be entitled to its exclusive use.

Grand jury testimony revealed that shortly thereafter, Siminovsky was arrested and entered into a cooperation agreement with the District Attorney's office. On March 4, 2003, while wearing a recording device but unaware of the video surveillance, Siminovsky brought defendant 27 Romeo and Juliet cigars—a box and two singles—at a cost of $272.28. Siminovsky brought them to the robing room and gave defendant an individual cigar, kept one for himself, and then placed the box in the top left drawer of defendant's desk. Siminovsky thanked defendant for helping him formulate a winning strategy in the Levi case. Shortly thereafter, Siminovsky again thanked defendant for the "little pointers" while defendant removed the box of cigars from his desk and inspected it. Before leaving, Siminovsky stated, "[n]ow you're just going to tell me what to write in the memo" in reference to the closing memorandum of law required at the conclusion of the Levi trial. Defendant responded 608*608 that Siminovsky would have to charge extra for the memo and then went on to substantively detail what the memo should include.

The other five counts of receiving reward for official misconduct in the second degree allege that defendant accepted monies for referring clients, in his official capacity, to Siminovsky. The first of these referrals allegedly occurred in late 2001. Evidence before the grand jury showed that defendant told Siminovsky that defendant's wife, Robin Garson, referred a client to Siminovsky and that he should compensate her in return.^[1] The client is alleged to have known that defendant was a judge and was seen visiting him in his robing room. Subsequently, Siminovsky, while in defendant's robing room, handed defendant $750 in cash as a referral fee for Robin Garson.

Grand jury testimony showed that defendant, for a second time, referred a friend to Siminovsky with the direction that Siminovsky "should take care of Robin." In this instance, the individual knew defendant was a judge. They were seen together at a Brooklyn Bar Association function and were personal acquaintances. After Siminovsky was retained by this client, he wrote a check to Robin Garson for either $1,000 or $1,500.^[2]

In a third instance, the People assert that defendant referred an employee of a restaurant he frequented to Siminovsky. The employee knew that defendant was a judge and he believed that the referral helped his case. He commented "[b]ecause I lived in Staten Island, what were the chances of Judge Garson getting the case?" Testimony also indicated that Siminovsky paid defendant $1,000 or $1,500 in cash for the referral by slipping it into his hand during a handshake in defendant's robing room.

In the fourth referral, as alleged by the People, evidence before the grand jury showed that defendant informed Siminovsky that another attorney would be calling him with a referral. As a result of the call, Siminovsky once again obtained a new client. This client knew defendant to be a judge from having met him at a country club. Siminovsky gave defendant $500 in cash by placing it in an envelope and putting it in defendant's desk drawer in his robing room. Siminovsky gave a fee to defendant but not to the attorney who facilitated the referral.

609*609 In the fifth and sixth referrals as alleged, defendant, according to grand jury testimony, accepted a lump sum payment as a reward for two referrals. Both clients retained Siminovsky as their counsel and likewise are alleged to have known that defendant was a judge from professional and personal relationships with him. Siminovsky paid defendant $1,000 for the referrals. At the time of the payment, March 10, 2003, Siminovsky was cooperating with the District Attorney's office. On that day, while wearing a recording device but unaware of the video surveillance, Siminovsky handed defendant $1,000 in marked bills in defendant's robing room. As he handed the money to defendant, Siminovsky stated the money was for the referrals of "Aiello" and "Caputo" as well as a third person who did not retain him as counsel.

Evidence before the grand jury showed that shortly after defendant placed the money in his pocket, Siminovsky said "[m]ake sure it doesn't fall out of your pocket," to which defendant replied "[i]t's not going to fall out for at least an hour or two. Then it is gone." Siminovsky then left the robing room, at which point defendant took out the money, counted it, placed some of it in his pocket and placed the rest in an envelope in his desk drawer. Several minutes later, defendant called Siminovsky from his cell phone and left him a message asking him to return. Siminovsky returned 38 minutes later at which point defendant handed him the envelope with the money and suggested that Siminovsky make a check out to Robin Garson's campaign committee since she was experiencing a shortfall of $25,000. Siminovsky returned the envelope to defendant and told him "[d]on't worry about it." Defendant took back the envelope and reiterated that Siminovsky should write a check out to the campaign committee. On March 12, 2003, defendant was arrested. The grand jury heard that at the time he had in his possession the 10 marked $100 bills that Siminovsky had given him on March 10, 2003.

Two indictments were filed and later consolidated.^[3] As relevant to this appeal, defendant was indicted on six counts of 610*610 receiving reward for official misconduct in the second degree in violation of Penal Law § 200.25.

Penal Law § 200.25 provides that a "public servant is guilty of receiving reward for official misconduct in the second degree when he solicits, accepts or agrees to accept any benefit from another person for having violated his duty as a public servant." The first count of the indictment states:

"The defendant, on or about March 4, 2003, in the County of Kings, being a public servant, did solicit, accept and agree to accept a benefit, namely a box of cigars, from another person, namely Paul Siminovsky, for having violated his duty as a public servant."

To support the first count, the People submit that defendant violated his duty as a public servant by failing to comply with 22 NYCRR 100.3 (B) (6), which provides in part that "[a] judge shall not initiate, permit, or consider ex parte communications." The People asserted that defendant violated this rule when he engaged in numerous ex parte communications with Siminovsky concerning the Levi case—advising Siminovsky what witnesses to call, what arguments to make and how defendant intended to rule on key issues in the case. This violation of the rule in conjunction with his acceptance of a benefit—the cigars—is sufficient, the People contend, to satisfy the elements of Penal Law § 200.25.

The remaining five counts under Penal Law § 200.25 charge defendant as follows:

"The defendant, on or about [five different dates], in the County of Kings, being a public servant, did solicit, accept and agree to accept a benefit, namely a sum of United States currency, from another person, namely Paul Siminovsky, for having violated his duty as a public servant."^[4]

In support of these charges, the People turn to 22 NYCRR 100.2 (C), which provides in part that "[a] judge shall not lend the prestige of judicial office to advance the private interests of the 611*611 judge or others." The People contend that this section prohibits defendant, a judge, from making referrals by lending the prestige of his judicial office to advance his own interests or those of another, here, Siminovsky. The grand jury could have inferred based on the evidence presented that defendant made the referrals to help Siminovsky's practice and, in turn, to gain monetary benefits in the form of "referral fees." Thus, the People maintain that defendant lent the prestige of his judicial office to Siminovsky in order to benefit Siminovsky and himself in violation of rule 100.2. The People argue that this dereliction of duty when coupled with the acceptance of benefits—payments—is sufficient to establish every element of Penal Law § 200.25 in each of the five instances.

Supreme Court granted defendant's motion to dismiss the indictment to the extent of dismissing the six counts of receiving reward for official misconduct on the ground that the "evidence presented to the grand jury that the defendant violated the Rules [of Judicial Conduct] is legally insufficient to establish that he violated a duty he had as a public servant within the meaning of the Penal Law." (4 Misc 3d 258, 266-267 [2004].) The essence of the court's analysis was that the People could not rely on the Rules to establish that defendant's conduct was in dereliction of his duties as a judge. Supreme Court further dismissed two of three counts of official misconduct (Penal Law § 195.00). The court held that sufficient evidence existed to support one count only: that defendant received compensation in exchange for advice under Penal Law § 195.00 (1) in violation of Judiciary Law § 18. The Appellate Division affirmed. A Judge of this Court granted leave, and we now modify and reinstate the six counts charging defendant with receiving reward for official misconduct under Penal Law § 200.25.

II.

"Where the language of a statute is clear and unambiguous, courts must give effect to its plain meaning" (Matter of Tall Trees Constr. Corp. v Zoning Bd. of Appeals of Town of Huntington, 97 NY2d 86, 91 [2001]). In addition, legislative history can be useful to aid in interpreting statutory language (see Riley v County of Broome, 95 NY2d 455, 463 [2000]). The receiving reward offense, defined in Penal Law § 200.25, is part of Penal Law article 200, which addresses "Bribery Involving Public Servants and Related Offenses." In enacting Penal Law article 200, the Legislature intended its coverage to be comprehensive to help prevent and prosecute abuses of power in government.

612*612 A "public servant" is

"(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" (Penal Law § 10.00 [15]).

Thus, "public servant" has been defined "broadly enough to include not only every category of government or public officer, but every employee of such officer or agency" (Donnino, Practice Commentary, McKinney's Cons Laws of NY, Book 39, Penal Law art 200 [internal quotation marks omitted]). "Benefit" is also broadly defined to encompass "any gain or advantage to the beneficiary and includes any gain or advantage to a third person pursuant to the desire or consent of the beneficiary" (Penal Law § 10.00 [17]). The plain language of Penal Law § 200.25 is consistently broad in that it embraces any variation of reward for benefit, whether one "solicits, accepts or agrees" to such reward.

In enacting Penal Law § 200.25, the Legislature has specifically defined the terms "public servant" and "benefit" and left for factual resolution whether a public servant has "violated his duty." The Legislature's decision not to further define the duty element is understandable given the hundreds of different types of public officials and employees whose misconduct was intended to be covered under the statute. The duty of a Department of Motor Vehicles clerk is not the same as that of a Health Department inspector or, for that matter, a judge. It would therefore have been difficult if not impossible for the Legislature to construct a definition of "duty" that would have encompassed all the derelictions of duty it sought to proscribe. Instead, the Legislature has required that the People prove the duty violated in each case. Such proof can come in the form of live testimony from a lay witness or expert, reliance on an internal or formal body of rules, or other indicia of a defendant's knowledge of wrongdoing.

The Legislature's comprehensive approach finds its roots in the legislative history. Article 200 of the Penal Law sets forth various crimes addressing bribery and bribe receiving, all of which involve a benefit or reward for a future act by a public 613*613 servant. Prior to the enactment of Penal Law § 200.25, there was a void in the law that allowed for prosecution of bribery-like offenses where a benefit was given in contemplation of an act in the future (see Penal Law §§ 200.00, 200.10), but did not allow for prosecution when an improper act occurred and a benefit was later bestowed upon the public official for that act. Penal Law § 200.25, receiving reward for official misconduct, and its counterpart Penal Law § 200.20, rewarding official misconduct, are intended to fill that void (see Commission Staff Notes, reprinted following NY Cons Law Serv, Book 23B, Penal Law § 200.25; see People v Alvino, 71 NY2d 233, 244 [1987] [explaining that reward receiving, a lesser offense of bribe receiving, "involves accepting a reward for past official misconduct"]). Judges fall within the broad definition of "public servant." And even prior to the enactment of Penal Law § 200.25, prosecution of "judicial officers" had been authorized under the bribery statutory scheme (see former Penal Law § 372).

Defendant urges us to interpret the statute to create a new void—the immunization of judges from criminal prosecution when they receive an illicit benefit after violating a rule of judicial conduct. Specifically, defendant claims that the term "violated his duty" lacks express legislative definition and cannot be proved by evidence that defendant violated his duty under the Rules. This claim lacks merit.

For an indictment to survive a motion to dismiss on sufficiency grounds, the evidence presented to the grand jury must set forth prima facie proof of the crimes charged (see People v Bello, 92 NY2d 523, 525-526 [1998]; CPL 70.10). Here, the evidence submitted before the grand jury satisfies this requirement to the extent that defendant is a public servant and that he accepted a benefit. Assuming for a moment that defendant was in violation of his duties as a public servant, it was also reasonable for the grand jury to infer that defendant received the benefits for having violated his judicial duties. Defendant urges us to interpret Penal Law § 200.25's element that the public servant be in violation of his duty, to exempt judges because they are subject to what he deems the ethically-driven Rules of Judicial Conduct. We reject his contention.

The People set forth evidence that defendant offered ex parte advice to Siminovsky, an attorney appearing in a case pending before him. The evidence further showed that the advice conveyed was substantive in nature in that defendant informed 614*614 Siminovsky that his client would prevail even though the client did not deserve to win. It was reasonable for the grand jury to find that defendant violated his explicit duty not to "initiate, permit, or consider ex parte communications . . . concerning a pending or impending proceeding" (22 NYCRR 100.3 [B] [6]).

The same is true as to defendant's referral of cases to Siminovsky. The evidence presented to the grand jury supports an inference that defendant, in referring potential clients to Siminovsky, was lending the prestige of his judicial office for the sake of advancing private interests—both his own and Siminovsky's. The grand jury could rationally have found that defendant meant for the clients to be influenced by his judicial position when they selected the lawyer he recommended, and also that defendant expected to be compensated by Siminovsky for the referrals. We do not imply that a judge, acting in a purely private, unofficial capacity, may not refer a friend or acquaintance to a lawyer when the judge expects no benefit for doing so (see Advisory Comm on Jud Ethics Op 93-89 [1993]); but the grand jury could have concluded that that is not what happened here.

We are further governed by the principle that "we must interpret a statute so as to avoid an `unreasonable or absurd' application of the law" (People v Santi, 3 NY3d 234, 244 [2004], quoting Williams v Williams, 23 NY2d 592, 599 [1969]; see also People v Kramer, 92 NY2d 529, 539 [1998] [a court may consider whether one reading of the statute "might produce absurd and fundamentally unfair results"]; Matter of New York State Assn. of Criminal Defense Lawyers v Kaye, 96 NY2d 512, 519 [2001] ["courts have repeatedly rejected statutory constructions that are unconscionable or antithetical to legislative objectives"]). "The law binds all men equally, the Judges no less than the judged" (Matter of Stern v Morgenthau, 62 NY2d 331, 339 [1984]; see also Matter of Mason [State Commn. on Jud. Conduct], 100 NY2d 56, 60 [2003] ["Judges must be held to a higher standard of conduct than the public at large"]).

To hold otherwise, as urged by the dissent, would lead to the incongruous result of insulating judges from criminal liability under Penal Law § 200.25 because they have a formal body of rules governing their conduct while subjecting other public servants—whose duties are not defined in either Penal Law § 200.25 or any express code of conduct comparable to the Rules—to criminal liability for similar conduct. Such a result not only effectively immunizes judges but also runs counter to 615*615 the legislative objective of deterring public servants from, and prosecuting them for, abusing their positions (cf. People v Jaehne, 103 NY 182, 195 [1886] ["The crime of bribery . . . impairs public confidence in the integrity of official administration, a confidence most necessary to be maintained"]).

A comparison to prosecutions under Penal Law § 200.35 further exposes the flaw in the dissent's position.^[5] Under that statute, a judge who accepts a benefit for authorized conduct can be prosecuted for receiving unlawful gratuities. However, if the conduct was unauthorized, as it is alleged here, defendant would be immunized from prosecution under the rationale set forth by the dissent since the People relied on the Rules of Judicial Conduct to establish the violations. We see no justification for such a perverse result—not in the plain language of the statute, not in the legislative history, and not in our precedents.

Thus we conclude that the People may rely on the Rules of Judicial Conduct to prove the element of a judge's "duty as a public servant" within the meaning of Penal Law § 200.25. The Rules are a compendium of regulations that insures the integrity of the judiciary and the resultant confidence and impartiality that must repose in the justice system. Any other construction runs afoul of these goals. We hold the evidence presented to the grand jury is legally sufficient, in accordance with CPL 70.10, and supports every element of counts one through six of the indictment charging defendant with violating his duties as a public servant and then accepting benefits in exchange for those violations.

III.

In support of his position that the Rules cannot supply that necessary element, defendant, like the dissent, views our holding in People v La Carrubba (46 NY2d 658 [1979]) as a bar to prosecuting judges who violate an explicit code of conduct. In La Carrubba, a judge was charged with official misconduct under Penal Law § 195.00 (2) for improperly dismissing, for failure to prosecute, a simplified traffic information issued to a personal friend. In that prosecution, the People relied on Canons 2 and 3 of the Code of Judicial Conduct in support of the charges.

616*616 Unlike the Rules of Judicial Conduct in effect today that have been promulgated pursuant to the State Constitution and Judiciary Law § 212 (2) (d), the Code of Judicial Conduct that existed in 1974 was merely "a compilation of ethical objectives and exhortations" which were "[c]ouched in the subjunctive mood" (46 NY2d at 663). The Code was promulgated by the American Bar Association, adopted by the New York State Bar Association and then subsequently incorporated by reference in the respective rules of the Appellate Divisions. Canon 2 of the Code suggests that "A Judge Should Avoid Impropriety and the Appearance of Impropriety in All of the Judge's Activities" and Canon 3 likewise evokes the proposition that "A Judge Shall Perform the Duties of Judicial Office Impartially and Diligently." We refused to permit a prosecution for official misconduct under Penal Law § 195.00 (2) based upon these violations of the ethical canons contained within the Code of Judicial Conduct. To hold otherwise, we said, would permit "a prosecutor [to] initiate and take charge of proceedings to enforce the Code of Judicial Conduct" (46 NY2d at 664).

Here, there are two significant distinctions from La Carrubba. First, the Rules of Judicial Conduct do not present the same notice and enforcement concerns that we faced with the Code of Judicial Conduct in La Carrubba. Whereas the Code encouraged judges to act with utmost ethical forethought—it was framed in suggestive terms and applicable only as adopted by the Appellate Divisions—the Rules of Judicial Conduct are rooted in a constitutional amendment of State Constitution, article VI, § 20 (b) which states that "[j]udges and justices of the courts . . . shall also be subject to such rules of conduct as may be promulgated by the chief administrator of the courts with the approval of the court of appeals" (emphasis added).^[6]

After this constitutional amendment was adopted, the Legislature enacted Judiciary Law § 212 (2) (b), which directs the Chief Administrator of the Courts to "[p]romulgate rules of conduct for judges and justices of the unified court system with the approval of the court of appeals, in accordance with the provisions of section twenty of article six of the constitution." Pursuant to the Constitution and the statute, the Chief Administrator of the Courts promulgated the Rules of Judicial Conduct which were then approved by the Court of Appeals. These Rules, 617*617 including 22 NYCRR 100.2 and 100.3, affirmatively state that a judge "shall" comply with the rules of conduct and set out a basic standard of compliance (see also 22 NYCRR part 100 [preamble] ["The text of the rules is intended to govern conduct of judges . . . and to be binding upon them . . . The rules are intended . . . to state basic standards which should govern their conduct and to provide guidance to assist them in establishing and maintaining high standards of judicial and personal conduct"]).

The dissent relies on the preamble of the Rules which also states that "[t]hey are not designed or intended as a basis for civil liability or criminal prosecution" (see dissenting op at 631). However, preambles are not controlling of a statute or rule's terms but are simply a useful aid for interpreting them when there is ambiguity (cf. McKinney's Cons Laws of NY, Book 1, Statutes § 122). Moreover, our holding is not inconsistent with the preamble because the Rules themselves do not subject judges to criminal sanctions. Here, a breach of the Rules supplies proof that an official duty has been violated. It is the "receiving reward" aspect of defendant's conduct that gives rise to the criminal prosecution, not just the existence or violation of the Rules.

The mandatory nature of the Rules and their constitutional source ameliorate the concerns we expressed in La Carrubba. The Rules provide a fundamental objective standard of how judges must conduct themselves. This addresses the concern that a prosecutor could use an advisory, aspirational code of ethics to help prove an element of a crime. It further diminishes any concern that a defendant would not have proper notice of the conduct prohibited, as the Rules and the Penal Law are clear as to their applicability.^[7]

A second key difference is that in La Carrubba we were concerned with "the permissibility of the enforcement of the provisions of the Code of Judicial Conduct by resort to criminal prosecution" (La Carrubba, 46 NY2d at 662). There, the District Attorney was prosecuting the judge for refraining from performing 618*618 duties inherent to the nature of her office—the duties to avoid the appearance of impropriety and to act impartially. In essence, the Penal Law was being used as a vehicle to pursue claims of "ethical impropriet[ies]" which, contrary to the intent of the Legislature, effectively did nothing more than permit the prosecutor to "take charge of proceedings to enforce the Code of Judicial Conduct" (La Carrubba, 46 NY2d at 664).

In the present case, the criminal prosecution rests not on a violation of the Rules alone but on the acceptance of a benefit for violating an official duty defined by the Rules. Thus, a public servant who violates a tangible duty and further "solicits, accepts or agrees to accept" a benefit for the breach, is subject to prosecution under Penal Law § 200.25.^[8] Had the judge as a public servant violated ethical duties alone—without accepting a benefit for the violation—and had the action not otherwise been prohibited by the Penal Law, the public servant would be subject only to discipline in a proceeding brought by the Commission on Judicial Conduct. This critical distinction alleviates many of the concerns we had in La Carrubba, including the concern that to allow criminal prosecution of ethical violations under Penal Law § 195.00 (2) would create an "awkward and often unseemly" landscape where different groups would likely "jockey for prosecutorial priority or advantage" (46 NY2d at 665).^[9]

We thus reject defendant's argument that La Carrubba is controlling here. The People's use of the Rules of Judicial Conduct to establish the duty element before the grand jury in this case did not render the proof insufficient or the indictment defective.

The People's remaining claim as it relates to the dismissal of the charge of official misconduct in violation of Penal Law § 195.00 (2) is meritless.

Accordingly, the order of the Appellate Division should be modified by reinstating six counts charging defendant with receiving reward for official misconduct in the second degree and, as so modified, affirmed.

619*619 G.B. SMITH, J. (dissenting in part).

The primary issue here is whether the Rules of Judicial Conduct may be used as criminal statutes to prosecute a judge. I agree with the trial court and the Appellate Division that the Rules are not criminal statutes. Thus, the evidence before the grand jury was legally insufficient to sustain 8 of the 11 charges in the consolidated indictments (Nos. 3515/2003 and 5332/2003).

Facts

The People assert that there was an ongoing improper attorney-judge relationship between Paul Siminovsky and defendant over a period of three years, including lunches, drinks, money and cigars in exchange for ex parte advice on cases pending before the judge, client referrals, and favorable treatment in the courtroom.

From approximately October 1, 2002 to March 4, 2003, defendant had ex parte conversations with attorney Siminovsky about the Avraham Levi case, a divorce case pending before him. The conversations involved advice about how to proceed in the case, statements concerning how defendant would rule on the distribution of property between the parties, and suggestions about what questions Siminovsky should ask the witnesses. The People claim that these conversations violated 22 NYCRR 100.3 (B) (6).^[1]

On March 4, 2003, defendant accepted two boxes of cigars from Siminovsky for giving him advice in the Levi case. According to the People, defendant violated Judiciary Law § 18^[2] when he accepted the cigars. The People claim that the defendant also 620*620 accepted money for referring clients to Siminovsky on five separate dates, including October 9, 2001; October 31, 2001; September 5, 2002; November 15, 2002; and March 10, 2003. Client referrals from a judge to an attorney are alleged to be violations of 22 NYCRR 100.2 (C).^[3]

Also from January 1, 2002 through March 12, 2003, defendant accepted lunches, beverages and cigars from Siminovsky in exchange for "assigning law guardianships, and giving ex parte advice to Siminovsky concerning cases that were pending before defendant."

In February 2003, during the Avraham Levi divorce case, the Kings County District Attorney began a video and audio surveillance of the judge's robing room. During that surveillance, defendant and Siminovsky discussed the following: subpoenaing an expert witness, the fact that the defendant was not going to order the sale of the house, that Levi would get exclusive use of the home and that Levi would win the case, even though he did not deserve it.

In early 2003, the District Attorney's office arrested Siminovsky who agreed to cooperate with the prosecutor. On March 4, 2003, Siminovsky gave defendant two cigars which had been purchased by the District Attorney's office. Unbeknownst to Siminovsky, the District Attorney continued to conduct video and audio surveillance of defendant's robing room.

On March 10, 2003, Siminovsky, wearing a recording device, handed defendant 10 $100 bills which had been given to him by 621*621 the Kings County District Attorney. Defendant placed the money in his pocket. However, shortly thereafter, he called Siminovsky on his cell phone and asked him to return. After conferring with the District Attorney, Siminovsky returned to defendant's chambers.

Defendant tried to return part of the money. Instead of the money, defendant asked that Siminovsky write a check for Robin Garson's (defendant's wife) judicial campaign which had experienced a shortfall. In the end, defendant kept the $1,000, and Siminovsky agreed to write a check. Defendant was arrested on March 12, 2003. At the time of arrest, defendant had the $1,000 in his pockets.

Indictment No. 3515/2003 charged defendant with one count of receiving reward for official misconduct in the second degree (Penal Law § 200.25)^[4] for accepting a box of cigars, five counts of receiving reward for official misconduct in the second degree (Penal Law § 200.25) for referral fees, one count of official misconduct (Penal Law § 195.00 [1]) pertaining to ex parte advice to Paul Siminovsky (Penal Law § 195.00 [1])^[5] and one count of receiving unlawful gratuities (Penal Law § 200.35).^[6]

Indictment No. 5332/2003 charged defendant with one count of bribe receiving in the third degree (Penal Law § 200.10)^[7] for 622*622 agreeing to provide favorable treatment to Siminovsky. For accepting the cigars concerning the advice on the Levi case, defendant was charged with two counts of official misconduct (Penal Law § 195.00 [1], [2]). By indictment No. 5332/2003, defendant was also charged with a third count of official misconduct (Penal Law § 195.00 [1]), "which superseded the count of official misconduct in indictment number 3515/03."

On September 9, 2003, Supreme Court, Kings County consolidated indictment No. 3515/2003 with indictment No. 5332/2003 and dismissed as superceded the count of official misconduct charged in indictment No. 3515/2003.

Motion to Dismiss

On December 15, 2003, defendant moved to dismiss the indictments as based upon legally insufficient evidence. Defendant argued that judicial rules of conduct cannot serve as predicates for criminal charges. Also, defendant argued that receiving the box of cigars was not compensation within Judiciary Law § 18.

On April 29, 2004, Supreme Court, Kings County, dismissed six counts of receiving reward for official misconduct in the second degree (Penal Law § 200.25) finding:

"[I]n any prosecution for receiving reward for official misconduct, the evidence must identify a duty the defendant had as a public servant, and must establish that he or she violated that duty and thereafter solicited, accepted or agreed to accept a benefit for having done so. . . .

"In sum, although the Chief Administrator of the Courts has properly promulgated enforceable ethical standards, I hold that he has not discharged, nor has he attempted to discharge, the legislative responsibility of defining elements of crimes. Accordingly, evidence presented to the grand jury that the defendant violated the Rules of the Chief Administrator is legally insufficient to establish that he violated a duty he had as a public servant within the meaning of the Penal Law. The grand jury evidence, therefore, fails to establish an essential element of each of the counts charging the crime of receiving reward for official misconduct in the second degree." (4 Misc 3d 258, 261-267 [2004].)

623*623 In reference to official misconduct (Penal Law § 195.00), there were three charges. Two were dismissed as based upon legally insufficient evidence and one was sustained as based on defendant's acceptance of a box of cigars "as compensation" for ex parte advice on the Avraham Levi divorce case pending before him. His acceptance of the box of cigars was in violation of his duty not to accept compensation for engaging in authorized or unauthorized conduct.

On the charge of receiving unlawful gratuities, the motion court wrote:

"A review of the testimony and exhibits presented to the grand jury reveals that the evidence was legally sufficient to support the count charging the defendant with the class A misdemeanor of receiving unlawful gratuities in that he allegedly accepted benefits from an attorney for having engaged in official conduct as a judge which he was authorized to perform, and for which he was not entitled to any special or additional compensation (Penal Law § 200.35)." (4 Misc 3d at 268.)

Supreme Court concluded, "The case will therefore proceed to trial on the top count of bribe receiving in the third degree, on one count of official misconduct, and on one count of receiving unlawful gratuities." (Id. at 277.)

On April 25, 2005, the Appellate Division, Second Department affirmed, writing:

"The court properly dismissed counts one through six of indictment No. 3515/03, charging the defendant with receiving reward for official misconduct in the second degree. An indictment in which the defendant's duty as a public servant, an essential element of the crime of receiving reward for official misconduct (Penal Law § 200.25), is defined solely by reference to the Rules of Judicial Conduct, specifically, 22 NYCRR 100.2 (C) and 100.3 (B) (6), is insufficient (see People v La Carrubba, 46 NY2d 658, 665 [1979]).

"The court also properly dismissed count three of indictment No. 5332/03, charging the defendant with official misconduct (Penal Law § 195.00 [2]), as multiplicitous, since there is no fact to be proven under that count that is not also required to be 624*624 proven under count two of the same indictment" (17 AD3d 695 [2005] [citations omitted]).

On June 24, 2005, the Chief Judge of the Court of Appeals granted leave to appeal to the People. The People seek to reinstate six counts of receiving reward for official misconduct in the second degree (Penal Law § 200.25) and one count of official misconduct as defined by Penal Law § 195.00 (2).

Discussion

The New York State Constitution, the Rules of Judicial Conduct and the Penal Law do not authorize a prosecutor to charge a judge with crimes by alleging violations of the Rules of Judicial Conduct.

Constitution and Preamble of Rules of Judicial Conduct

Article III, § 1 of the New York State Constitution states, "The legislative power of this state shall be vested in the senate and assembly."

"Th[e] legislative power cannot be passed on to others. What is legislative and what [is] administrative is not always easy to define, but the difficulty is not apparent here" (see Darweger v Staats, 267 NY 290, 305 [1935]). "Authority to make administrative rules is not a delegation of legislative power, and such rules do not become legislation because violations thereof are punished as public offenses" (see id. at 306). The clearest reading of 22 NYCRR part 100 is that it consists of rules governing judicial conduct, not criminal statutes passed by the Legislature, the only body in this state that can make conduct criminal.

The preamble of the Rules of Judicial Conduct makes clear that they were not intended to be criminal statutes:

"The rules governing judicial conduct are rules of reason. They should be applied consistently with constitutional requirements, statutes, other court rules and decisional law and in the context of all relevant circumstances. The rules are to be construed so as not to impinge on the essential independence of judges in making judicial decisions.

"The rules are designed to provide guidance to judges and candidates for elective judicial office and to provide a structure for regulating conduct through disciplinary agencies. They are not designed or intended as a basis for civil liability or criminal prosecution" (emphasis supplied).

625*625 The sections of the Rules of Judicial Conduct used in the criminal prosecution of this defendant are 22 NYCRR 100.2 (C) and 100.3 (B) (6). There is nothing in the preamble to suggest that criminal prosecution can result from any violation of the Rules. Further, the preamble explicitly states that criminal prosecution should not result from the Rules. Consequently, defendant was not on notice that the rules of conduct could result in criminal prosecution. Notice, of course, is an essential requirement prior to prosecution (see La Carrubba, 46 NY2d at 663, supra).

The prosecution has charged the defendant twice for the same crime. Defendant allegedly accepted the cigars for giving ex parte advice in the Levi case. The advice and the compensation were, however, all one offense. The People cannot charge official misconduct once for the advice and a second time for the compensation because the offense was receiving compensation for giving advice. Thus, only one count of official misconduct is warranted based upon Judiciary Law § 18 where the judge did "receive . . . compensation for giving his advice in an action. . . pending before him."

Grand Jury Charges and Legally Sufficient Evidence

The prosecutor charged the grand jury as though the Rules of Judicial Conduct were criminal statutes. On May 20, 2003, the prosecutor charged the grand jury on the rules that govern judicial conduct, not on the criminal law, reciting, verbatim, two provisions of the Rules of Judicial Conduct. They were the following:

22 NYCRR 100.2, which is headed: "A Judge shall avoid impropriety and the appearance of impropriety in all of the judge's activities." Subdivision (C) states:

"A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others; nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge."

22 NYCRR 100.3, which is headed: "A judge shall perform the duties of judicial office impartially and diligently." Subdivision (B) (6) states:

"A judge shall accord to every person who has a legal interest in a proceeding, or that person's lawyer, the right to be heard according to law. A 626*626 judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties or their lawyers concerning a pending or impending proceeding, except: . . .

"Ex parte communications that are made for scheduling or administrative purposes that do not affect a substantial right of any party are authorized, provided the judge reasonably believes that no party will gain a procedural or tactical advantage as a result of the ex parte communication, and the judge, insofar as practical and appropriate, makes provision for prompt notification of other parties or their lawyers of the substance of the ex parte communication and allows an opportunity to respond. . . .

"A judge, with the consent of the parties, may confer separately with the parties and their lawyers on agreed-upon matters."

Concerning indictment No. 3515/2003, the prosecutor instructed the grand jury that it could indict the defendant for violating the Rules of Judicial Conduct if it determined that defendant had accepted cigars, accepted money, referred persons to Paul Siminovsky or gave advice.

Pursuant to CPL 190.65, a grand jury indictment is authorized as follows:

"1. Subject to the rules prescribing the kinds of offenses which may be charged in an indictment, a grand jury may indict a person for an offense when (a) the evidence before it is legally sufficient to establish that such person committed such offense provided, however, such evidence is not legally sufficient when corroboration that would be required, as a matter of law, to sustain a conviction for such offense is absent, and (b) competent and admissible evidence before it provides reasonable cause to believe that such person committed such offense."

Legally sufficient evidence is defined under CPL 70.10 (1) as "competent evidence which, if accepted as true, would establish every element of an offense charged and the defendant's commission thereof." Three crimes alleged in the consolidated indictment are authorized because they charge violations of the 627*627 Penal Law. The Rules of Judicial Conduct were not meant to serve as elements of criminal statutes or as criminal statutes. The charges given to the grand jury by the prosecutor indicate that the People are alleging both violations of the Penal Law and violations of the Rules of Judicial Conduct in prosecuting defendant.

The Rules of Judicial Conduct are rules of ethics and not criminal statutes or predicates for criminal statutes. There has been no legislative enactment allowing for their use in criminal prosecution and the Rules have not been subjected to any standards of proof. Further, the burden of proof for violations under the judicial rules of conduct is "preponderance of the evidence" whereas, for felonies, it is beyond a reasonable doubt (see Matter of Collazo [State Commn. on Jud. Conduct], 91 NY2d 251, 253 [1998]).

In Matter of Stern v Morgenthau (62 NY2d 331, 333 [1984]), this Court determined that the grand jury's purpose and investigations would not be thwarted if the prosecutor is not allowed to have access to "confidential records of the State Commission on Judicial Conduct" which developed as part of the Commission's investigation into misconduct by two judges. Specifically, this Court held that the grand jury and the Commission "serve quite different purposes" (see id. at 334). The Court illuminated the difference with the following words:

"The Grand Jury is drawn from the population at large and charged with the duty of investigating and preferring charges against those suspected of criminal conduct while the Commission is composed of members appointed for fixed terms as defined in the Constitution and charged with the duty of investigating misconduct in the judicial branch of government and imposing discipline if misconduct is found. Thus, while the two bodies serve similar functions, they are separate and independent. One is responsible for investigating crime; the other for disciplining Judges." (Id.)

The difference addressed in Stern between the grand jury and the Commission on Judicial Conduct is relevant to the case at bar. In order to prosecute defendant under the consolidated indictment, the People must show that defendant violated duties as a public servant defined in the Penal Law and separate and apart from the rules that govern judicial conduct. The indictment repeatedly makes reference to "being a public servant." 628*628 However, except for the charge referred to in footnote 2 (at 619), there is no reference to what duties in the criminal statutes defendant violated.

The People argue that the Rules put judges on notice that if they engage in "official misconduct," they will be held accountable for their actions through criminal prosecution. Further, failure to prosecute judges for engaging in illegitimate actions will have a negative effect on the public's confidence in the judiciary. According to appellant, defendant failed not only in his duty as a public servant but also in not complying with both the judicial rules of conduct and the criminal statutes. Defendant asserts that there are no cases which hold that a judge can be criminally liable for failure to comply with the judicial rules of conduct. Defendant argues, "Simply put, that a judge has a duty to comply with the Rules does not mean that compliance with those Rules is enforceable under the Penal Law."

There appear to be no statutes and no cases that hold that a judge can be held criminally liable for failure to comply with the Rules of Judicial Conduct. There is no question that the prosecutor has amassed a great deal of damning evidence against the defendant. However, what is at issue is whether or not Rules of Judicial Conduct (22 NYCRR part 100) can be used as a predicate for criminal prosecution, not whether or not there is enough evidence to prosecute the defendant.

One count of bribe receiving in the third degree (Penal Law § 200.10) for "accepting benefits from Siminovsky upon an agreement or understanding that defendant would provide Siminovsky with favorable treatment" is legally sufficient. Second, defendant allegedly accepted a box of cigars and two loose cigars for providing advice on the Levi divorce case which was pending before him. As a result of these actions, the charge that the judge violated Penal Law § 195.00 by accepting compensation for giving advice is appropriate (see La Carrubba, 46 NY2d 658, 664 [1979], supra). Thus, one charge of official misconduct is appropriate. Third, the evidence was legally sufficient to establish one count of receiving unlawful gratuities in violation of Penal Law § 200.35 because defendant accepted the cigars for advice concerning the Levi divorce case. However, the evidence was legally insufficient to sustain the other six charges pursuant to Penal Law § 200.25.

629*629 People v La Carrubba

Relying on People v La Carrubba (46 NY2d 658, 664-665 [1979]), both the Supreme Court and the Appellate Division found that the Code cannot be used in such a manner. In La Carrubba, this Court held:

"We find nothing in section 195.00 of the Penal Law which suggests that by the device of incorporation by reference a prosecutor may initiate and take charge of proceedings to enforce the Code of Judicial Conduct as such. To accept the proposition advanced by [appellant] District Attorney would be to countenance the institution of criminal proceedings for any alleged violation of the provisions of the code. We perceive no intention on the part of the Legislature to cloak the District Attorney with responsibility for compelling conformity with the Code of Judicial Conduct." (46 NY2d 658, 664-665 [1979], supra.)

In La Carrubba, the issue was enforcement of Penal Law § 195.00 (2) for official misconduct by a judge. This Court determined that judges can be prosecuted for criminal acts but not on the basis of the judicial rules of conduct which were never meant to serve as part of the penal code (see 46 NY2d 658, 663 [1979], supra). In this case, judges are not put on notice that misconduct under the Rules of Judicial Conduct could serve as a basis for criminal prosecution (see id.). Thus, as the Supreme Court has found, the prosecution in the case at bar is precluded from imposing criminal penalties under Penal Law § 200.25 based upon 22 NYCRR 100.2 and 100.3. While the Rules of Judicial Conduct are meant to include sanctions which can include removal from the bench (see Matter of Sims [State Commn. on Jud. Conduct], 61 NY2d 349, 356 [1984]; Matter of VonderHeide [State Commn. on Jud. Conduct], 72 NY2d 658, 660-661 [1988]), there is no indication that the Rules were meant to be used as a predicate for criminal sanctions (see La Carrubba, 46 NY2d 658, 664-665 [1979], supra; People v Stuart, 100 NY2d 412, 419 [2003]). As a result, the six charges of receiving reward for official misconduct in the second degree, as outlined by the Supreme Court, were properly dismissed.

Finally, the majority refers to language in La Carrubba that "the Code of Judicial Conduct that existed in 1974 was merely `a compilation of ethical objectives and exhortations' which were `[c]ouched in the subjunctive mood,'" adopted by the 630*630 American Bar Association, then the New York State Bar Association and then "incorporated by reference in the respective rules of the Appellate Divisions." (Majority op at 616.) Thus, the Code consisted of rules adopted by the Appellate Divisions. Here, the Rules of Judicial Conduct were promulgated by the Chief Administrator of the Courts and designed to "provide guidance to judges and candidates for elective judicial office and to provide a structure for regulating conduct through disciplinary agencies." (22 NYCRR part 100 [preamble].) The Legislature thus directed the Chief Administrator of the Courts to adopt rules of conduct, not criminal statutes.

New York State Constitution, Article VI, § 20 (b) and Judiciary Law § 212 (2) (b)

The overriding principle that governs in this instance is whether it was the legislative intent to make criminal judicial conduct based upon the Rules of Judicial Conduct. The principle in effect in this case, as has been true in other cases, is that "legislative intent is the great and controlling principle" (see Matter of Theroux v Reilly, 1 NY3d 232, 244 [2003]; Matter of Sutka v Conners, 73 NY2d 395, 403 [1989]; Staats, 267 NY 290, 306 [1935], supra). There is no evidence that the Rules of Judicial Conduct were meant as a predicate for criminal prosecution.

New York Constitution, article VI, § 20 (b) states in part, "Judges and justices of the courts specified in this subdivision shall also be subject to such rules of conduct as may be promulgated by the chief administrator of the courts with the approval of the court of appeals." No evidence is submitted that indicates any Judge of this Court intended the Rules of Judicial Conduct to be a portion of any criminal statute without specific language from the Legislature designating such conduct a crime. Judiciary Law § 212 (2) (b) states that the Chief Administrator of the Courts shall "[p]romulgate rules of conduct for judges and justices of the unified court system with the approval of the court of appeals, in accordance with the provisions of section twenty of article six of the constitution." Again, no evidence is submitted that any Judge of this Court determined that a vote for the Rules of Judicial Conduct was a vote for a criminal statute or part of a criminal statute. Moreover, no evidence is submitted that the Legislature intended that by referring to the constitutional provision permitting the Chief Administrator of the Courts to promulgate rules of judicial conduct, it was also making such rules, which were to be promulgated in the future, crimes for which a prosecutor could indict.

631*631 Vagueness

Defendant was not on notice that violations of the Rules of Judicial Conduct would result in violations of the criminal statute. Therefore, it would be a violation of defendant's due process rights if appellant's arguments were accepted and the prosecution proceeded, with proof of crimes based on the Rules of Judicial Conduct.

A statute is unconstitutionally vague when it does not give "fair notice to those to whom [it] is directed" that their behavior may subject them to criminal prosecution (see American Communications Assn. v Douds, 339 US 382, 412 [1950]; People v Stuart, 100 NY2d 412, 418 [2003]). In People v Stuart, this Court laid out a two part test for determining whether a statute is void for vagueness. First, a court must determine "whether the statute in question is `sufficiently definite "to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute"'" (see 100 NY2d 412, 420 [2003], supra, quoting People v Nelson, 69 NY2d 302, 307 [1987]). Second, the statute must be reviewed to determine "whether the enactment provides officials with clear standards for enforcement" (see Stuart, 100 NY2d at 420, supra). "As generally stated, the void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement" (see Kolender v Lawson, 461 US 352, 357 [1983] [citations omitted]).

The Rules of Judicial Conduct state specifically, "They are not designed or intended as a basis for civil liability or criminal prosecution." (22 NYCRR part 100 [preamble].) The stated purpose of the Rules alone renders specific rules vague if used for criminal prosecution. There is nothing in the Rules themselves that remotely suggests criminal prosecution. In fact, the duties at issue are related to rules of conduct for the profession rather than criminal standards of official misconduct. Certainly, defendant was on notice that his conduct would violate sections of the Penal Law. He was also on notice that his conduct violated the Rules of Judicial Conduct which could lead to charges by the Commission on Judicial Conduct.

The words of the motion court that dismissed the charges on appeal here are entirely relevant:

"Section 20 (a) of article VI of New York's Constitution 632*632 provides that `Judges . . . shall . . . be subject to such rules of conduct as may be promulgated by the chief administrator of the courts with the approval of the court of appeals.' . . .

"Much like the Code of Judicial Conduct which it parallels, the Rules of Judicial Conduct part of the Rules of the Chief Administrator of the Courts (22 NYCRR part 100) is, in large measure, a compilation of ethical standards, goals, and aspirations that are stated in broad and general terms. Thus, for example, the rules provide that `[a] judge should participate in establishing, maintaining and enforcing high standards of conduct, and shall personally observe those standards so that the integrity and independence of the judiciary will be preserved' (22 NYCRR 100.1), and that `[a] judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary' (22 NYCRR 100.2 [A]), and that `[a] judge shall be patient, dignified and courteous to litigants, jurors, witnesses, lawyers and others with whom the judge deals in an official capacity, and shall require similar conduct of lawyers, and of staff, court officials and others subject to the judge's direction and control' (22 NYCRR 100.3 [B] [3]).

"The notion that rules like these can define an element of a crime is untenable. . . .

"In light of both their language and their application, the two rules at issue here are problematic when employed to define an element of a crime. And, significantly, they were never meant to be used for that purpose." (4 Misc 3d 258, 263-265 [2004].)

The Majority Decision

First, the majority asserts that the preamble of the Rules of Judicial Conduct which states, "They are not designed or intended as a basis for civil liability or criminal prosecution," is not controlling and cites McKinney's Cons Laws of NY, Book 1, Statutes § 122 in support of its position. Section 122 does not support the majority and states:

"The preamble or preliminary recitals of a statute are no part of the statute and do not control or affect 633*633 its terms, although they may be considered as an aid to interpretation when the body of the act is not free from ambiguity."

"However, a preamble frequently contains recitals which illuminate the purpose and intent of the enactment. In fact, it is said to be the key which opens the mind of the lawmakers as to the mischiefs which are intended to be remedied by the statute, and it may sometimes be considered in determining legislative intent. Accordingly, the language of a preliminary recital may be considered as an aid to interpretation when the body of the act is not free from ambiguity, and a legislative declaration concerning public conditions is entitled to great respect though it is not conclusive." (Statutes § 122, Comment [emphasis added].)

The underscored portion indicates that a preamble may indicate the intent of the Legislature. While we are not dealing with a statute here, even if section 122 applies, it supports the fact that the Rules of Judicial Conduct are not criminal statutes. It does so by its explicit words.

The majority indicates that since the language of the rules is "mandatory" (majority op at 616) rather than precatory, a person of reasonable intelligence is on notice of possible criminal prosecution. There is not a single case that supports the majority's assertion that defendant was on notice that the Rules of Judicial Conduct would serve as the basis for a criminal prosecution. As a result, whether the word "shall" or "may" is used does not suffice for purposes of notice in relation to criminal prosecution (People v Stuart, supra [words not sufficiently definite for purposes of criminal prosecution]).

Second, a criminal prosecutor becomes the judge of when and how a rule of judicial conduct becomes criminal. The majority does not define the duties that can lead to criminal prosecution as opposed to sanctions by the Commission on Judicial Conduct. Does a judge now risk criminal prosecution when he or she advises a relative or friend that a particular lawyer is well suited to handle a case? Is a judge improperly exercising his or her authority when a recommendation is given to a law school? What if a judge recommends one school over another? Suppose a judge is on a not-for-profit board of directors and his or her name inadvertently appears on a notice of a fundraiser, a matter forbidden by the Rules? Should 634*634 a judge refrain from all of these things because he or she lends the prestige of the office and promotes the interest of the judge or another person in violation of 22 NYCRR 100.2? Which rules subject a judge to criminal prosecution and which do not?

Third, the Commission on Judicial Conduct which is given constitutional authority in article VI, § 22 of the New York State Constitution to investigate and determine whether judicial conduct violates the Rules is now placed in a secondary position. Section 22 states in part:

"There shall be a commission on judicial conduct. The commission on judicial conduct shall receive, initiate, investigate and hear complaints with respect to the conduct, qualifications, fitness to perform or performance of official duties of any judge or justice of the unified court system, in the manner provided by law; and, in accordance with subdivision d of this section, may determine that a judge or justice be admonished, censured or removed from office for cause, including, but not limited to, misconduct in office, persistent failure to perform his or her duties, habitual intemperance, and conduct, on or off the bench, prejudicial to the administration of justice, or that a judge or justice be retired for mental or physical disability preventing the proper performance of his or her judicial duties."

Does the Commission on Judicial Conduct now wait to see if there is going to be a criminal prosecution before it acts?

Conclusion

It is simply incorrect that judges are immune from the criminal law if the Rules of Judicial Conduct do not authorize a criminal action. This defendant, without reference to the Rules of Judicial Conduct, is being prosecuted for bribe receiving in the third degree (Penal Law § 200.10), official misconduct (Penal Law § 195.00 [2]) and receiving unlawful gratuities (Penal Law § 200.35).

For the foregoing reasons, I dissent in part and would affirm the dismissal of six counts of receiving reward for official misconduct in the second degree and one count of official misconduct.

635*635 Order modified by reinstating six counts charging defendant with receiving reward for official misconduct in the second degree and, as so modified, affirmed.

[1] Defendant's wife, Civil Court Judge Robin Garson, was in private practice at the time.

[2] Siminovsky did not recall whether he gave the check to defendant or to Robin Garson.

[3] On May 21, 2003, defendant was charged in indictment No. 3515/2003 with six counts of receiving reward for official misconduct in the second degree (class E felonies), one count of official misconduct and one count of receiving unlawful gratuities (class A misdemeanors). On August 5, 2003, defendant was charged in indictment No. 5332/2003 with bribe receiving in the third degree (a class D felony) and three counts of official misconduct (one of which superseded the official misconduct count of the earlier indictment).

Supreme Court concluded there was legally sufficient evidence to support the charges of receiving unlawful gratuities (Penal Law § 200.35), bribe receiving in the third degree (Penal Law § 200.10) and one count of official misconduct (Penal Law § 195.00 [1]). A trial on those counts is pending.

[4] Counts two through six of indictment No. 3515/2003 allege the dates on which defendant allegedly accepted a fee: October 9, 2001, October 31, 2001, September 5, 2002, November 15, 2002, and March 10, 2003.

[5] Penal Law § 200.35 reads: "A public servant is guilty of receiving unlawful gratuities when he solicits, accepts or agrees to accept any benefit for having engaged in official conduct which he was required or authorized to perform, and for which he was not entitled to any special or additional compensation."

[6] Article VI, § 20 of the State Constitution was amended in 1977 and was not applicable to defendant in La Carrubba.

[7] To the extent that defendant raises a vagueness "as applied" challenge to Penal Law § 200.25, we are not persuaded. The failure to define each term in a criminal statute does not render the statute void for vagueness (see People v Nelson, 69 NY2d 302 [1987]). The statute at issue, as applied to these facts, is "sufficiently definite to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute" (People v Stuart, 100 NY2d 412, 420 [2003] [citations and internal quotation marks omitted]).

[8] See e.g. United States v Davis, 183 F3d 231, 245 (3d Cir 1999); RêSource N.E. of Long Is., Inc. v Town of Babylon, 80 F Supp 2d 52 (ED NY 2000); People v Blumenthal, 55 AD2d 13 (1st Dept 1976).

[9] Certainly there are violations where the same conduct can form the basis of a criminal prosecution and an administrative proceeding. The burdens of proof are different, as are the penalties that may be imposed, and both can be prosecuted in tandem. Typically, the criminal prosecution goes forward first and the disciplinary proceeding is held in abeyance pending the outcome of the criminal prosecution.

[1] 22 NYCRR 100.3:

"A judge shall perform the duties of judicial office impartially and diligently. . . .

"(B) Adjudicative responsibilities. . . .

"(6) A judge shall accord to every person who has a legal interest in a proceeding, or that person's lawyer, the right to be heard according to law. A judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties or their lawyers concerning a pending or impending proceeding."

[2] Judiciary Law § 18 states: "A judge or other judicial officer shall not demand or receive a fee or other compensation for giving his advice in an action, claim, matter, motion or proceeding pending before him, or which he has reason to believe will be brought before him for decision."

Count three of indictment No. 5332/2003 charged defendant with the crime of official misconduct in violation of Penal Law § 195.00 (2) committed on March 4, 2003 when defendant "refrained from performing a duty, pertaining to his receipt of a box of cigars from Paul Siminovsky." In responding to a demand in a bill of particulars to identify the duty that defendant refrained from performing, the People alleged, "The defendant refrained from performing the duty that was imposed upon him by Jud. L. § 18 to refuse the box of cigars as compensation for providing advice to Siminovsky about the Levi divorce case and to return such compensation."

[3] 22 NYCRR 100.2:

"A judge shall avoid impropriety and the appearance of impropriety in all of the judge's activities.

"(A) A judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.

"(B) A judge shall not allow family, social, political or other relationships to influence the judge's judicial conduct or judgment.

"(C) A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others; nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge. A judge shall not testify voluntarily as a character witness."

[4] Penal Law § 200.25:

"Receiving reward for official misconduct in the second degree.

"A public servant is guilty of receiving reward for official misconduct in the second degree when he solicits, accepts or agrees to accept any benefit from another person for having violated his duty as a public servant."

[5] Penal Law § 195.00:

"Official misconduct

"A public servant is guilty of official misconduct when, with intent to obtain a benefit or deprive another person of a benefit:

"1. He commits an act relating to his office but constituting an unauthorized exercise of official functions, knowing that such act is unauthorized."

[6] Penal Law § 200.35 states,

"A public servant is guilty of receiving unlawful gratuities when he solicits, accepts or agrees to accept any benefit for having engaged in official conduct which he was required or authorized to perform, and for which he was not entitled to any special or additional compensation."

[7] Penal Law § 200.10, a class D felony, states,

"A public servant is guilty of bribe receiving in the third degree when he solicits, accepts or agrees to accept any benefit from another person upon an agreement or understanding that his vote, opinion, judgment, action, decision or exercise of discretion as a public servant will thereby be influenced."

Goldberger, Feldman & Breitbart (Joel A. Brenner of counsel), for appellant.

Arthur Weinstein for respondent.

GREENBLOTT, J. P., LARKIN and HERLIHY, JJ., concur; KANE, J., concurs in the result only.

*242MIKOLL, J.

The People charged that the defendant, Assemblyman Alan Hochberg, met with one, Charles Rosen, in January and February, 1976, to secure Rosen's promise not to run against him in the 1976 primary for the Assembly in exchange for Hochberg's promise to give Rosen a $20,000 a year job in the Legislature, a session job for Rosen's brother-in-law paying approximately $3,000, and a $5,000 political campaign contribution. The defense contended that Hochberg's discussions with Rosen were for the purpose of establishing a working political coalition between Rosen, the political group in Co-op City which evolved during the rent strike and defendant's group in Pelham Park, as well as filling positions on his legislative staff with qualified persons.

The defendant was convicted of violating subdivision 5 of section 421 of the Election Law (Penal Law, § 110.00) which prohibits the fraudulent or wrongful doing of any act tending to affect the result of a primary election; section 448 of the Election Law which prohibits any person, while holding public office, from corruptly using or promising to use his official authority to secure public employment upon consideration that the person so to be benefited or any other person will give or use their political influence or action in behalf of any candidate, or upon any other corrupt condition or consideration; and section 77 of the Public Officers Law which makes it a felony for any member of the Legislature to ask, receive, consent or agree to receive "any money, property or thing of value or of personal advantage" for performing any discretionary act which he may exercise by virtue of his office. The jury acquitted defendant of a fourth charge of violating sections 110.00 and 155.35 of the Penal Law, attempted grand larceny in the second degree.

The People's evidence established that defendant was the State Assemblyman from the heavily Democratic 81st Assembly District (A.D.) located in The Bronx, New York. He was to be a candidate for re-election in the 1976 elections for the term of office commencing January 1, 1977. The district was divided into two sections, 81st A.D. West, which consisted of an area known as Pelham Parkway where defendant resided and which area he controlled and 81st A.D. East, known as Co-op City, a large housing development community of about 60,000 people, where, Charles Rosen, chairman of steering *243 committee III, was the very popular leader of a rent strike supported by 86% of the residents. Co-op City was 99% Democratic in party affiliation and comprised about 40% of the Democratic primary vote in the district. Pelham Parkway supplied about 60% of that vote. Success in the Democratic primary was tantamount to election in the 81st A.D.

In the early summer of 1975, it had been discovered that New York City Councilman, Stephen Kaufman, had deceived the residents of Co-op City by his duplicitous conduct involving the rent strike. He was the only elected public official living in Co-op City but he became unelectable because of his rent strike duplicity. His actions were defended by the regular Democratic Club leadership in the district who were, at best, considered lukewarm in their support of the rent strike. There were regular and reform factions splitting the democratic support outside of Co-op City in the summer, fall and early winter months of 1975-1976.

Larry Dolnick, a vice-chairman of steering committee III, and Elliot Engel were leaders of the New Democratic Club formed in the 81st A.D. East. This club included both reform Democrats and regulars who were dissatisfied with the regular Democratic Club. According to Dolnick, the defendant first approached him and Engel with offers of defendant's support. He indicated to Dolnick that he wanted to run for Civil Court Judge in 1977, that his Assembly seat would then be open and that he would introduce Dolnick into the Pelham Park area so that he could take over his position as Assemblyman. When Dolnick told defendant he was not interested in public office, defendant offered him a job on his staff at a salary of $19,000-$20,000. Dolnick said he could not take such a job because of his association with the rent struggle. The Assemblyman then offered him a job for a lesser amount of money with the Legislature where "he wouldn't have to appear." Dolnick further said that in connection with the upcoming 81st District leadership race, at which either he or Elliot Engel would be the candidate, defendant offered to contribute $750 to that campaign.

Defendant told Dolnick that he did not want a primary in 1976 because it would be expensive. On different occasions he inquired of Dolnick whether Charles Rosen intended to run against him. Dolnick said Rosen did not. However, defendant said he wanted to hear it from "the horse's mouth" and wanted Dolnick to set up a meeting. He stated that Rosen *244 would be a viable candidate, that a primary campaign for the Assembly would cost upwards of $25,000 and that he wanted to run for Civil Judge in 1977 and that that was the reason he wanted to be sure Rosen would not run. Dolnick thereafter advised Rosen that the defendant wanted to talk to him and told Rosen of the offers the defendant had made to him.

Charles Rosen testified that he visited the office of the Special Prosecutor for Nursing Homes in December, 1975, to discuss defendant's connection with the nursing home industry. He mentioned what he characterized as defendant's "third party bribe" offer and the Special Prosecutor subsequently suggested that Rosen meet with the defendant to allow him to repeat the "bribe."

On January 27, 1976, Dolnick and Rosen went to the Special Prosecutor's office and arrangements were made to record the meeting defendant requested. The first tape recording played at trial revealed that Dolnick, Rosen and defendant met at Dolnick's apartment on January 30, 1976, where defendant stated he did not want a primary in 1976, that he wanted to run for the Bench in 1977 and that he wanted their support for that office. The discussion included references to defendant's job offer to Dolnick and his proposed $750 contribution for the New Democratic Club campaign. At this meeting defendant stated that he was willing to help Rosen achieve his dreams because the $25,000 he would probably have to spend in a tough primary against Rosen would kill his judgeship race. Defendant stated that he would not have the resources for two campaigns. Defendant offered the $20,000 job on his staff to Rosen but said they would have to work it out with Dolnick first because he had offered the same job to him. Defendant also said he would raise $5,000 for Rosen's 1978 special election campaign for the Assembly by recommending that other people contribute to Rosen's campaign fund.

On February 5, 1976, Rosen and the defendant met alone at the Larchmont Diner. The tape recording of this meeting disclosed that defendant offered to place Rosen in a $3,000 job on his committee at the current session. It was agreed Rosen could not take it, but that any name would be acceptable to defendant as a "stand-in" for Rosen. That conversation went like this:

"ROSEN: Now, you talked about this job on your committee. I can't take that job.

*245"HOCHBERG: Who can? Is that a thought?

"ROSEN: That somebody would be a stand-in.

"HOCHBERG: Right. Does it look bad if your wife?

"ROSEN: What about my sister-in-law * * * or my brother-in-law * * *

"HOCHBERG: Matter of fact * * * as I told you, as of Monday, at least for the figure I had quoted you they can * * * come up and sign on. Immediately * * *

"ROSEN: So who will know.

"HOCHBERG: That's right. All right. Thats. That's that."

Defendant further stated in the taped conversation that he could guarantee Rosen $5,000 for his special election campaign and that the $3,000 session job was evidence of his good faith in that it would be completely paid before the primary. Rosen testified that in addition defendant said, "I will give you —" and then proceeded to write on a napkin the figure $5,000, asking him to nod if it was acceptable.

He also said that if the rent strike was not over, Rosen's stand-in could be placed in the $20,000 job. When Rosen asked defendant not to put the stand-in's name on the payroll until Wednesday instead of the Monday, as planned, the defendant made reference to the stand-in losing. Rosen replied, "Schmuck, he's losing nothing, I'm getting the money." Defendant agreed, "But that's it, you're losing, why * * *?" Rosen explained he had to talk the matter over with his wife.

At a subsequent recorded meeting on February 8, 1976, Rosen advised the defendant that the "stand-in" would be in Albany the following day. Rosen asked him when the arrangement regarding the $5,000 contribution which he had written on the napkin would be consummated. Defendant said that he had an, "excellent mechanism to protect both of us." Rosen could set up a bank account in the name of a campaign committee and contributions could be made to that entity by defendant. "No problems, it's perfectly legal." he assured Rosen.

The stand-in for Rosen, his brother-in-law, Chris Johnson, who was equipped with a recording device, arrived in Albany the next day and defendant accompanied him to the necessary offices so that he could be put on the payroll. Defendant told Johnson that he would not have to come to Albany again but he would like Johnson to answer some mail at home.

The defense, through cross-examination of Rosen, and the *246 testimony of defense witness, Philip Luce, sought to establish that Rosen was biased against defendant in that Rosen was a militant communist, out to destroy the Government of the United States and in the process to destroy Assemblyman Hochberg as a political force in the community. At the same time, through cross-examination of Dolnick and Rosen, the defense attempted to show that the discussions with Rosen were merely political in nature, made to establish a political coalition in the 81st Assembly District. The defendant also attempted to develop a basis for the defense of entrapment through cross-examination and the establishment of bias on the part of Rosen towards defendant. In addition, the defense offered the testimony of several character witnesses.

Defendant on this appeal first contends that there was a failure to prove beyond a reasonable doubt that the offers made by defendant were contingent on Rosen not running in the primary since they were made as part of a larger political accommodation involving the 81st Assembly District. We disagree. While certainly on this record a question of fact was created for the jury, there was sufficient evidence for the jury to find that the job offers were made on the condition that Rosen not run in the primary. Defendant said he did not want a primary against Rosen, that it would cost him $25,000 and would "kill his judgeship race," because he would not then have the financial resources for such a race. Defendant's knowledge that the offers were made contingent upon Rosen's not running in the primary appears from his statement in reference to the offer of the $3,000 session job, that: "That's my good faith * * * it is completely paid * * * before the petitions are filed." Further, the fact that the $20,000 and the $3,000 staff jobs were offered by defendant without regard to the duties to be performed or the skills required indicated the presence of an ulterior motive. Defendant's reference to their "agreement," their "deal" and "personal quid pro quo" during both meetings with Rosen, in connection with their discussions, along with his caution to Rosen to "deny everything" is sufficient to establish that defendant attempted to condition the job offers on Rosen's promise not to run in the primary.

It is also urged by defendant that the People failed to prove that he accepted "a thing of value or personal advantage." This is without merit. Unlawful fees and payments (Public Officers Law, § 77) are obviously a form of bribery. The benefit accruing to the public official need not be tangible or *247 monetary to constitute a bribe (People v Hyde, 156 App Div 618; People ex rel. Dickinson v Van de Carr, 87 App Div 386). Here, Rosen's agreement not to run in the 1976 primary was a sufficiently direct benefit to the defendant to be included within the term "thing of personal advantage."

Defendant next claims that there was a failure to prove that he acted with a wrongful intent because the People failed to prove that he knew he was violating subdivision 5 of section 421 and subdivision 1 of section 448 of the Election Law. We find this contention is without merit. There are sufficient facts in the record from which the jury could find that defendant acted with a corrupt intent (People v Lang, 36 N.Y.2d 366, 370-371; cf. People v Shapiro, 4 N.Y.2d 597, 600). The trial court charged that a corrupt intent involved "an intentional and knowing disregard of the law." "Intentional" requires a conscious objective to engage in the prohibited conduct while "knowing" requires an awareness that one's conduct is of such nature or that such circumstances exist (Penal Law, § 15.05, subds 1 and 2). Here, evidence existed that defendant used or promised to use his authority as a legislator to secure staff jobs for Rosen and Johnson with the intent and purpose of obtaining Rosen's promise to refrain from entering the primary in violation of subdivision 1 of section 448 of the Election Law. Likewise, evidence existed that defendant deliberately attempted to cause Rosen to refrain from entering the primary in exchange for the said jobs and offers of campaign contributions in violation of subdivision 5 of section 421 of the Election Law.

Defendant urges that, at best, the evidence only supports attempted unlawful fees and payments and attempted corrupt use of position or authority, in that, Rosen testified that he never intended to run in the primary. The argument must be rejected since both crimes encompass an attempt. Unlawful fees and payments require only the mere asking, consenting or agreeing to receive anything of value or personal advantage in exchange for performing a discretionary act. Corrupt use of position or authority includes only corruptly promising to use official authority in exchange for a promise not to enter the primary.

Further, defendant argues that because Rosen said he never had the intention to run in the primary, there could be no actual effect on the primary, as required by subdivision 1 of section 448 of the Election Law, and that likewise, Rosen's *248 promise not to run in the primary was not a thing of value as required under section 77 of the Public Officers Law. This argument is defeated by the fact that Rosen's state of mind was a present but transient state of mind at the time, subject to change and unbound by the obligations inherent in a promise not to run. Such a promise would take away his unfettered freedom to be a candidate and change the transitory nature of his state of mind to permanency. Thus, the promise not to run affected the primary by removing Rosen as a viable potential primary candidate and, also, consequently, was a thing of value or personal advantage to defendant.

Defendant contends that the statutes under which he was convicted are (1) unconstitutional in that they are overbroad and inhibit First Amendment activities relative to free political discussion; and (2) unconstitutionally vague in prohibiting the use of official position or authority in exchange for the benefit of another's "political influence or action" or "upon any other corrupt condition or consideration." We find the first contention is without merit. The statutes place reasonable restrictions on the use of official position and authority which is corruptive of a free elective process. No one has a constitutional right to corruptly use official position or authority to obtain political gain. Secondly, the statutes here under attack are sufficiently definite to give a reasonable person notice of the nature of the acts prohibited. They are generally aimed at corrupt bargaining to obtain public office and specifically at the use of the public payroll in such bargains. In view of the myriad ways in which the object sought to be prohibited may be accomplished, laws framed with narrow particularity would afford easy circumvention of their purpose and be ineffectual. Thus, the statutes are neither impermissibly vague nor overbroad (People v Lang, 36 N.Y.2d 366; People v Willett, 213 N.Y. 368). A person of ordinary intelligence would realize that it is illegal to offer Assembly staff positions to another as a payoff not to run against him in an election for public office.

Defendant next urges reversal of his conviction on the ground that the evidence established the defense of entrapment as a matter of law. We disagree. Under section 40.05 of the Penal Law, the affirmative defense of entrapment can be made out only when the "active inducement or encouragement" of a public servant or of a person acting in co-operation with a public servant creates "a substantial risk that the offense would be committed by a person not otherwise disposed *249 to commit it." Defendant had the burden of proving such defense by a preponderance of the evidence (People v Laietta, 30 N.Y.2d 68, cert den 407 US 923). We conclude that the jury properly found that defendant did not meet that burden.

The job offers originally made to Dolnick and defendant's offer of the same job to Rosen, without significant pressure from Rosen, confirmed on the tape recording of the January 30, 1976 meeting at Dolnick's apartment, permitted the jury to find defendant had a predisposition to commit the crimes in question.

Defendant raises the argument that the evidence secured through the investigation of the Special Prosecutor, conducted prior to the authorization by the Governor's superceder order, was gathered without legal authority, in violation of defendant's constitutional rights, and thus, was inadmissible upon the trial of the resulting indictment. We reject this contention. The tape-recorded evidence presented to the Special Grand Jury and at trial was obtained without violation of defendant's rights. Rosen and Dolnick were participants in their conversations with defendant and therefore had a legal right to record the conversations in question. They violated no rights of the defendant in doing so. The Special Prosecutor for Nursing Homes acted beyond his jurisdiction in conducting the investigation prior to the issuance of Executive Order 31 (9 NYCRR 3.31), authorizing the creation of the Special Grand Jury. However, the evidence so gathered for that reason alone, is not subject to the exclusionary rule established by Mapp v Ohio (367 US 643) and Wong Sun v United States (371 US 471) and it was therefore properly received at trial (Matter of Nigrone v Murtagh, 46 AD2d 343).

Defendant contends that he was deprived of a fair trial through prosecutorial misconduct during the trial and in summation. Although there was some petty bickering between counsel which resulted in some uncalled for remarks, on the whole, in this lengthy and difficult trial, the court made proper evidentiary rulings and gave proper cautionary instructions to the jury when called upon by counsel (People v Broady, 5 N.Y.2d 500). No objection was made to the remarks the defendant contends were inflammatory at the trial. Some of these remarks, we agree, were improper; however, in relation to the entire summation, the asserted error does not require this court to exercise its discretion to reverse in the *250 interests of justice (People v Shields, 58 AD2d 94). Considering the entire summation and the court's instructions as a whole, we perceive no reversible error (People v Broady, supra; People v Marks, 6 N.Y.2d 67).

Defendant urges that the trial court committed error in charging the jury that if the jury found that a preponderance of the evidence did not establish entrapment that they must go on and "consider the other issues in the case." He contends this was a reversal of the proper order in which the jury should have considered the proof and relies heavily on People v Johnston (47 AD2d 897). However, we do not find Johnston controlling here. In Johnston, the appellate court found fundamental error in that the trial court had asserted the guilt of the defendants as a fact, thus relieving the prosecution of its burden of proving their guilt beyond a reasonable doubt and allowing the defendants an opportunity of acquittal only if they proved their defense of entrapment. The charge of the trial court here did not go so far and we do not find that it was fatal error for the trial court on this record to suggest to the jury that they may consider the defense of entrapment first before considering other issues in the case. It should be noted, that in view of the fact that this specific objection was not made by counsel for defendant and that an instruction agreed upon by counsel was read to the jury, this issue, as raised on appeal, was not preserved for our review as a matter of law.

Defendant argues that reversible error occurred when the trial court ruled that it would not charge subparagraphs (c) and (d) of Count 1 of the indictment because as a matter of law they did not constitute elements of the crime of corrupt use of position or authority since the contents of (c) and (d) did not constitute the use of official power. Subparagraph (c) of Count 1 alleged that the defendant committed the crime of corrupt use of position or authority in that he promised to resign his Assembly seat in 1977 and support Rosen in the special election in 1978 and make a $5,000 contribution to that campaign. Subparagraph (d) alleged the commission of such crime in that defendant promised to use his influence to help Rosen establish a political base. Defense counsel in objecting, argued that by omitting (c) and (d), the theory of the case was changed, since the defense could then no longer rely upon the failure to prove either element alleged in (c) or (d) for an acquittal of that count of the indictment. The trial *251 court found that since the allegations of (c) and (d) were not elements of the crime charged, they were mere surplusage. We agree (People v Laurence, 137 N.Y. 517), and we conclude as well that the theory of the indictment was not altered by the deletion.

Finally, defendant requests a modification of the sentence on the grounds it is harsh and excessive. Sentencing is a matter resting within the sound discretion of the trial court and the sentence imposed should not be reduced on appeal unless there is an abuse of that discretion (People v Dittmar, 41 AD2d 788; People v Caputo, 13 AD2d 861). Here, the trial court considered the facts and all other relevant material before pronouncing sentence. We cannot say that it was excessive.

The judgment should be affirmed.

Judgment affirmed.

Doctor at Sheldon Silver Trial Tells of Elaborate Arrangement, Years in Making

By BENJAMIN WEISER and SUSANNE CRAIG NOV. 4, 2015

In New York’s ornate Capitol building in Albany, a plan two years in the making was taking root. Everyone would benefit: Victims of mesothelioma, a rare but deadly form of cancer caused by exposure to asbestos, would be sent to a reputable law firm; the firm would pick up new clients; and a well-regarded cancer research clinic would receive funds.

And at the center of all this was Sheldon Silver, then the State Assembly speaker, prosecutors say.

The alleged arrangement, which has become the heart of the corruption case against Mr. Silver, came into focus at his trial on Wednesday, as Dr. Robert N. Taub of Columbia University testified in federal court in Manhattan as a government witness. Prosecutors charge that Mr. Silver, a Democrat from the Lower East Side, traded official actions for $3 million in an illegal kickback scheme.

Dr. Taub, who testified under a nonprosecution agreement, ran a clinic at Columbia dedicated to mesothelioma research. The clinic long relied on government grants, wealthy donors and even gifts from law firms and their foundations to fund his research.

But Weitz & Luxenberg, a major personal injury law firm that represents victims of mesothelioma, had not been a donor to Dr. Taub’s research, and he testified on Wednesday that he wanted to change that.

In 2003, the doctor reached out to Mr. Silver, who was on the law firm’s payroll, and asked the Assembly speaker to persuade the firm to make a contribution. Mr. Silver said that the firm could not do that, but not long afterward, Mr. Silver asked Dr. Taub if he could refer mesothelioma patients to Weitz & Luxenberg.

Dr. Taub testified that he agreed, and started sending potentially lucrative cases to Mr. Silver, which he said numbered at least two dozen over the years.

“I hoped to develop a relationship with him that would help fund mesothelioma research and would help my patients as well,” he told the jury.

In January 2005, after a ceremony at the Capitol to honor Mr. Silver, the two men met and discussed briefly Dr. Taub’s request for state funds to support his research. Mr. Silver eventually arranged for New York State to give Dr. Taub’s clinic two grants of $250,000 each in the years that followed.

Dr. Taub, 79, is one of the government’s key witnesses in the trial of Mr. Silver, who has pleaded not guilty to fraud, extortion and money laundering charges. The government has alleged that Mr. Silver, 71, abused his position as one of the most powerful men in the state for personal gain, and in the case of Dr. Taub directed $500,000 of taxpayer money to him.

At the same time, he acknowledged, he initially lied to federal investigators when they knocked on his door one day at 6 a.m. in the summer of 2014 and confronted him about his referrals to Mr. Silver.

“I was terrified and panicked, and I irrationally wanted to divorce myself” from the matter, Dr. Taub testified. Later, he said, he realized he had made a mistake and contacted investigators. Eventually, he said, he divulged everything he knew to the government, which reached a non-prosecution agreement in exchange for his cooperation.

Dr. Taub said he was introduced to Mr. Silver in the 1980s by a close friend, C. Daniel Chill, a lawyer who once served as counsel to a previous Assembly speaker, Stanley Steingut.

By BENJAMIN WEISER and VIVIAN YEE MAY 12, 2016

Dean G. Skelos, the once powerful Republican majority leader of the New York State Senate who was convicted with his son in December on federal corruption charges, was sentenced on Thursday to five years in prison.

The sentencing of Mr. Skelos was the second instance in 10 days in which a former senior New York lawmaker was sent to prison for abusing his office. It concluded an extraordinary chapter during which two trials, held a block apart at almost the same time last year, exposed a culture of kickbacks, secret deals and nepotism in the State Capitol in Albany.

But while the crimes and the 12-year prison term of Sheldon Silver, the former Democratic speaker of the State Assembly, exceeded those of Mr. Skelos and his son, Adam B. Skelos, the Skeloses’ trial stood out for the gritty, unvarnished look it offered of the personal and political dealings of a family immersed in Albany’s back channels.

The evidence against the Skeloses, who were convicted of bribery, extortion and conspiracy, laid bare schemes that were remarkable for both their brazenness and their familial motivation: The father seemed willing to do anything for his son.

Before he was sentenced, Dean Skelos asked the judge in the case, Kimba M. Wood of Federal District Court in Manhattan, to show mercy to his son. “Somehow I let things go off the rails, and for that I apologize to Adam,” Mr. Skelos said. “I love Adam and pray that we have better days together.” Adam Skelos was sentenced to six and a half years in prison.

The former senator also expressed remorse for his actions. “Somewhere along the way,” he said, “my judgment became clouded.”

The sentencings of Mr. Skelos and Mr. Silver made them the latest in an almost unending parade of disgraced New York lawmakers — elected officials tempted by greed and brought down by prosecutors, most notably Preet Bharara, the United States attorney in Manhattan.

Mr. Bharara, whose office is one of several agencies investigating possible wrongdoing connected to the administrations of Mayor Bill de Blasio and Gov. Andrew M. Cuomo, released a statement on Thursday that took a barely veiled swipe at Mr. Cuomo’s decision in 2014 to disband an anticorruption panel, the Moreland Commission, less than a year after he impaneled it.

The cases involving Mr. Skelos and Mr. Silver, Mr. Bharara said, “show — and history teaches — that the most effective corruption investigations are those that are truly independent and not in danger of either interference or premature shutdown.” He added that while the men deserved their sentences, “the people of New York deserve better.”

Before sentencing the Skeloses, Judge Wood scolded the former senator for violating his “unique position of power and trust."

The judge seemed to acknowledge the spate of graft scandals, saying she wanted “other politicians to learn from this sentence that public corruption will be punished.” The prison term, however, was less than half of what prosecutors had asked for.

Judge Wood also imposed a $500,000 fine — the amount sought by the government — on the former senator, as well as a $334,120 forfeiture to be paid jointly by him and his son. Prosecutors had noted that Dean Skelos had built a net worth of more than $2 million during his nearly three decades in the Senate, and had also applied for a state pension of almost $96,000 a year.

While the judge cited some of Dean Skelos’s accomplishments and service to his constituents, it was clear that she found few redemptive qualities in his son. She seemed appalled by wiretapped conversations that she said exposed his “bullying,” “cynicism” and “extreme” physical threats — tactics, she said, “more usually associated with professional criminals.”

“You appeared to have no moral compass,” Judge Wood told Adam Skelos, 33. “I think you did everything you could to monetize your father’s position for your personal benefit.”

At trial, prosecutors presented evidence that the elder Mr. Skelos, 68, used his position as majority leader to pressure a real estate developer, an environmental technology company and a medical malpractice insurer — firms that depended on his support as senator for legislation that benefited their interests — to provide Adam Skelos with consulting work, a direct payment of $20,000 and a job that required him to do virtually no work.

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New York Lawmakers and Their Sentences

A list of the longest prison terms given to convicted former state officeholders in New York in recent years.

Supreme Court Complicates Corruption Cases From New York to Illinois

By ERIC LIPTON and BENJAMIN WEISER JUNE 27, 2016

WASHINGTON — After Dean G. Skelos, the once-powerful New York state senator, was sentenced last month on federal corruption charges, one of his lawyers asked the judge to allow Mr. Skelos to remain free on bail while he appealed his conviction.

Her argument: A case pending in the United States Supreme Court, challenging the conviction of former Gov. Bob McDonnell of Virginia, could help undermine the criminal charges against Mr. Skelos.

“It is extremely likely that the court will reverse the conviction in Governor McDonnell’s case,” Alexandra A. E. Shapiro, the lawyer, told the judge.

Her prediction proved accurate. And within moments after the Supreme Court reversed Mr. McDonnell’s conviction on Monday, defense lawyers from Illinois to New York were citing the unanimous ruling as grounds to challenge past and pending criminal corruption cases brought by the Justice Department.

“This is a sign of the court saying to prosecutors, ‘You are overreaching,’” said Leonard Goodman, a lawyer for former Gov. Rod R. Blagojevich of Illinois, who was convicted on corruption charges in 2011 and is scheduled to be resentenced in August. “They think they have unfettered discretion to take down any elected officials.”

Current and former prosecutors strongly disagreed.

In Manhattan, a spokesman for Preet Bharara, the United States attorney there, said in a statement on Monday, “While we are reviewing the McDonnell decision, the official actions that led to the convictions of Sheldon Silver and Dean Skelos fall squarely within the definition set forth by the Supreme Court today.”

Mr. Bharara has repeatedly said he remains committed to ending a pattern of corrupt acts by elected officials, and most recently, his office won the convictions of Mr. Skelos and Mr. Silver, a former State Assembly leader.

Still, there was agreement among legal experts on Monday that the ruling would make it harder for the government to win corruption convictions. For the second time since 2010, the court narrowed the avenues that prosecutors have to file such charges. The decision could even discourage some cases from being brought in the first place.

“The bar is now higher in terms of what you have to prove,” said Randall D. Eliason, a former chief of the public corruption section at the United States attorney’s office in Washington. “This will leave a lot of unsavory conduct unpunished.”

Mr. McDonnell was accused of accepting gifts, loans and vacations from an affluent Virginia businessman who wanted the governor’s help dealing with state officials.

“Our concern is not with tawdry tales of Ferraris, Rolexes and ball gowns,” Chief Justice John G. Roberts Jr. wrote for the court, adding that “setting up a meeting, talking to another official or organizing an event (or agreeing to do so) — without more” — does not fit the definition of an “official act.”

In 2010, in a decision also involving so-called honest services fraud, the Supreme Court set aside the conviction of Jeffrey K. Skilling — the former chief executive of Enron, the bankrupt energy company — ruling that the law could be used to prosecute only bribery or kickbacks, not more limited actions like “self dealing,” in which an official secretly takes an action for personal gain.

Noah Bookbinder, the executive director of Citizens for Responsibility and Ethics in Washington, a liberal nonprofit group, said the combination of rulings was likely to have a major impact because elected officials involved in wrongdoing often did not have the power to personally deliver the favor that had been requested.

Mr. Bookbinder said examples of cases that might now be harder to prosecute included those of Representative Randy Cunningham, Republican of California, who pushed the Defense Department to select a particular contractor after receiving gifts and pleaded guilty in 2005, and Representative William J. Jefferson, Democrat of Louisiana, who was convicted in 2009 of taking bribes from a company that asked him to press executive branch officials to buy its products.

“The Supreme Court seems to be giving people a way to go ahead with corrupt conduct, with kind of a wink and a nod,” Mr. Bookbinder said.

Joel Bertocchi, a former federal prosecutor in Chicago, cautioned against overstating the impact of Monday’s ruling. “Having the same set of facts, they may be able to file different charges,” he said.

But defense lawyers and some conservative legal groups that have been critical of the Justice Department said they hoped the ruling would bring real change. They argued that the government had, in its zeal to win headlines, filed charges in recent years for activities that did not meet the standard for federal corruption.

“Once again, it has taken the U.S. Supreme Court to remind prosecutors that they do not have a blank check to read all kinds of unintended and overly broad criminality into vaguely worded statutes passed by Congress,” said E. G. Morris, a lawyer in Austin, Tex., and the president of the National Association of Criminal Defense Lawyers.

The precise impact of the McDonnell ruling on the Skelos and Silver cases was not immediately clear. Lawyers for Mr. Skelos, the former State Senate majority leader and a Republican, had no comment on the decision.

But at Mr. Skelos’s sentencing last month, Rahul Mukhi, a prosecutor in Mr. Bharara’s office, argued that Mr. Skelos’s corrupt acts had gone far beyond those taken by Mr. McDonnell, and that the cases were not “factually analogous.”

“McDonnell involved only meetings,” Mr. Mukhi said. “This case involved, overwhelmingly, legislation.”

Mr. Bharara’s office had said, for example, that Mr. Skelos supported legislation in Albany to benefit companies that arranged payments to his son, Adam B. Skelos, who was convicted along with his father. The elder Mr. Skelos received a five-year prison term; his son was sentenced to six and a half years.

Lawyers for Mr. Silver, a Democrat who received a 12-year sentence, said Monday that the McDonnell decision “will be central” to their client’s appeal.

The lawyers, Steven F. Molo and Joel Cohen, said the decision “makes clear that the federal government has gone too far in prosecuting state officials for conduct that is part of the everyday functioning of those in elected office.”

Write A Comment Noel J. Francisco, who argued Mr. McDonnell’s case before the Supreme Court, said that he hoped the ruling would be the end of his client’s prosecution and that the charges would be dropped entirely.

“They brought the case they brought,” he said, “because that was the most they could get a conviction on. That theory has been squarely rejected.”