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ELEMENTS OF OFFICIAL MISCONDUCT, MALFEASANCE AND NONFEASANCE, EXPLAINED; COCONSPIRATOR STATEMENTS MADE BEFORE A DEFENDANT JOINS A CONSPIRACY AND AFTER A DEFENDANT LEAVES A CONSPIRACY ARE ADMISSIBLE.

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, affirmed the conviction of a Nassau County Police Department detective on two counts of official misconduct and conspiracy. The opinion is too detailed to fairly summarize here. The charges stemmed from allegations defendant participated in an attempt to prevent the arrest of the son of a prominent supporter of the police department. It was alleged the supporter's son stole electronic equipment from his high school. Despite many attempts by members of the police department to have the high school withdraw the charges, the school refused. The opinion explains in detail the proof requirements for official misconduct, based upon malfeasance and nonfeasance. In a question of first impression, the Court of Appeals ruled that statements made by coconspirators before a defendant joins the conspiracy and after a defendant leaves the conspiracy are admissible:

We now hold that when a conspirator subsequently joins an ongoing conspiracy, any previous statements made by his or her coconspirators in furtherance of the conspiracy are admissible against the conspirator pursuant to the coconspirator exception to the hearsay rule. …

We further conclude, in line with federal case law, that statements made after a conspirator's alleged active involvement in the conspiracy has ceased, but the conspiracy continues, are admissible unless this conspirator has unequivocally communicated his or her withdrawal from the conspiracy to the coconspirators … . People v Flanagan, 2017 NY Slip Op 01018. CtApp 2-9-17

CRIMINAL LAW (ELEMENTS OF OFFICIAL MISCONDUCT, MALFEASANCE AND NONFEASANCE, EXPLAINED, COCONSPIRATOR STATEMENTS MADE BEFORE A DEFENDANT JOINS A CONSPIRACY AND AFTER A DEFENDANT LEAVES A CONSPIRACY ARE ADMISSIBLE)/EVIDENCE (CRIMINAL LAW, COCONSPIRATOR STATEMENTS MADE BEFORE A DEFENDANT JOINS A CONSPIRACY AND AFTER A DEFENDANT LEAVES A CONSPIRACY ARE ADMISSIBLE)/CONSPIRACY (CRIMINAL LAW, COCONSPIRATOR STATEMENTS MADE BEFORE A DEFENDANT JOINS A CONSPIRACY AND AFTER A DEFENDANT LEAVES A CONSPIRACY ARE ADMISSIBLE)/OFFICIAL MISCONDUCT (ELEMENTS OF OFFICIAL MISCONDUCT, MALFEASANCE AND NONFEASANCE, EXPLAINED)

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