The first critical element of New York Penal Law 195.00, Official Misconduct, is that you, the accused, must be a public servant. If you are not a public servant, then your arrest by the NYPD or prosecution by a District Attorney in Westchester County or New York County is neither viable nor legal as a matter of law. "Public servant" is explicitly defined in the New York Penal Law and is defined as a public officer or employee of the state or any person who exercises the functions of a public officer or employee. It makes no difference if the person is appointed or elected to their respective position.Official Misconduct: Elements of NY Penal Law 195.00
Once prosecutors have established that you are a public servant, there are additional hurdles that law enforcement must overcome before a judge of the criminal court or a jury of your peers can find your guilty of Official Misconduct, New York PL 195.00. The District Attorney or other prosecutor must also establish beyond a reasonable doubt that your intention was to either deprive another of a benefit or to obtain a benefit. Not ending there, as your criminal lawyer will explain, additional elements are necessary for your successful prosecution. You must also:
- Commit a particular and unauthorized act relating to your office and official function. Keep in mind that merely committing an unpermitted act is insufficient to violate this element. You must also be aware that your actions were unauthorized; or
- Knowingly refrain from following or complying with a duty required by law or that is inherent to your position regardless of its nature and scope.
A class "A" misdemeanor, Official Misconduct is punishable by up to one year in jail. In New York City (Manhattan, Brooklyn, Bronx, Queens and Staten Island), any and all time served for a conviction of NY Penal Law 195.00 is on Rikers Island. Similarly, if you are convicted and sentenced in a Town Court, Justice Court or City Court in Westchester, Rockland, Dutchess or Putnam Counties for NY Penal Law 195.00, you will serve your sentence in their respective county jails. If your penalty does not result in incarceration, courts can sentence you to probation, community service, and fines.
Although not a felony, it is imperative to consult with an New York criminal lawyer experienced in the crime of Official Misconduct if you have been arrested for this offense. Not only are crimes that betray the public trust magnified in the eyes of law enforcement from prosecutors to judges, but the collateral consequences to your career and future are unquestionably imperiled as well upon conviction.
- When the Police Withhold Evidence is the Crime of Official Misconduct Committed
- Rude & Unprofessional Police Conduct: The Official Misconduct Threshold
- Further Analysis of Official Misconduct
As paralyzing as an allegation of wrongdoing may be as a public servant or official may be, shutting down due to fear and the unknown will in no way serve you or your family. Remember, allegations are not facts nor indisputable evidence. You have rights and your failure to exercise them intelligently will likely leave you in a worse predicament than you expected. Because there is no better defense than knowledge, advocacy and experience, know that the New York criminal defense attorneys and former Manhattan Assistant District Attorneys at Crotty Saland PC are prepared to lead you down the best path to exoneration, mitigation or whatever is necessary to confront your criminal case.
Call the New York criminal lawyers and former Manhattan prosecutors at (212) 312-7129 or contact us online today