People v. Zambuto , 423 N.Y.S.2d 770 ( 1979 )

Simons, J.

(dissenting). I dissent from the judgment insofar as it modifies the sentence. Defendant was formerly employed by the State Board of Social Welfare as a Senior Area Representative. He was charged generally with the duty of supervising institutions which provided care to adults and specifically with supervising the construction and operation of Parkside Manor, a proprietary home for adults operated by one Dygert. He had the power, as he told Dygert, to close the facility. Starting about June or July of 1973 defendant began to discuss with Dygert various problems which he was having with maintenance of his personal residence, specifically the roof, plumbing, air conditioning, painting and wallpapering. On each occasion he asked Dygert whether the subcontractors could do anything to help him. Not surprisingly Dygert had the items repaired or replaced promptly at no expense to defendant. Dygert testified that defendant knew of the costs and on one occasion saw a bill that had been prepared (but never sent to defendant) for $2,430.80. Defendant, however, never offered to pay for these repairs, and those benefits plus other gifts from Dygert to defendant during the year or so involved here totaled approximately $3,500. Defendant has been convicted of violating subdivision 5 of section 73 of the Public Officers Law, but he has successfully defended against the charge of receiving unlawful gratuities because the gratuities were not given in exchange for performance of his official duties. He maintains that they were to compensate him for substantial personal services rendered by defendant in helping Dygert in the operation of Parkside Manor. Thus, the regulator, charged with protecting the public interest, practically joined the party to be regulated in a "partnership”, to his ultimate benefit in gifts and gratuities of $3,500. Considering the age and experience of this defendant it can hardly be contended that he acted innocently or out of naivete. The Trial Judge thought that this conduct and the appalling conflict of interest exhibited by it warranted a penalty of six months in county jail. I cannot say that sentence was excessive and if I were to modify it at all I would impose probation with the condition of restitution of $3,500 to Dygert so that defendant would at least pay for what he got. (Appeal from judgment of Monroe County Court—receiving unlawful gratuities and another charge.) Present—Cardamone, J. P., Simons, Hancock, Jr., Doerr and Moule, JJ.