Opinion
May 31, 1979
Motion by the Special Prosecutor for reargument is denied. Reargument is sought in an endeavor to have us modify by way of substitution for our reversal and dismissal of the judgment of conviction for bribe receiving, second degree (Penal Law, § 200.10), and official misconduct (Penal Law, § 195.00). Our disposition was based, in a word, on the absence of any showing that the conduct of defendant-appellant had any relationship to his actions as a public servant or to his office (People v Herskowitz, 41 N.Y.2d 1094, 1096; People v. Chapman, 13 N.Y.2d 97; People v. Lafaro, 250 N.Y. 336, 342). The requested modification would consist, on the basis of section 110.10 Penal of the Penal Law and CPL 470.15 (subd 2, par [a]), of reduction to lesser included counts of attempts to commit both crimes. Nothing is found in the trial record on this point, neither in the indictment nor by way of request to charge the lesser included counts or by actual submission of them to the jury. The point comes to our attention for the first time on this motion for reargument, and does not fall within the category of matter "overlooked or misapprehended" (Rules of the Appellate Division, First Department, 22 NYCRR 600.14 [a]).
Concur — Kupferman, J.P., Fein, Sullivan and Markewich, JJ.