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People v. Samel

OPINION FILED APRIL 6, 1983.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT,

v.

MARK SAMEL, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Du Page County; the Hon. Carl Henninger, Judge, presiding.

JUSTICE VAN DEUSEN DELIVERED THE OPINION OF THE COURT:

Rehearing denied May 12, 1983.

Defendant, Mark Samel, was charged by indictment of the grand jury with two counts of conspiracy (counts I and XV) under section 8-2(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 8-2(a)), five counts of official misconduct (counts II, III, VI, IX and X) under section 33-3(b) of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 33-3(b)), and eight counts of official misconduct (counts IV, V, VII, VIII, XI, XII, XIII and XIV) under section 33-3(c) of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 33-3(c)). On motion of the defendant, the trial court dismissed all thirteen counts of official misconduct (counts II through XIV), and the State has taken an interlocutory appeal from that order. 87 Ill.2d R. 604(a).

The charges against the defendant, a police officer of the village of Burr Ridge, arose from defendant's purported use of the Law Enforcement Agency Data System (LEADS) for discovering the names and addresses of the owners of vehicle registration numbers for the purpose of facilitating burglaries of the respective premises of the owners.

With reference to all of the charges of official misconduct brought pursuant to section 33-3(b) of the Criminal Code of 1961 except counts III and X, the indictment charged, in substance, that defendant, a public officer, in his official capacity as a police officer, knowingly performed an act which he knew to be forbidden by law to perform, that law being the LEADS (Law Enforcement Agency Data System) Regulations and Policies, section IXA and IXB, 3; to wit: the procuring of information, that being the name and address of a specified vehicle registration number owner from LEADS for purposes other than that of law enforcement.

With reference to all of the charges of official misconduct brought pursuant to section 33-3(c) of the Criminal Code of 1961 the indictment charged, in substance, that defendant, a public officer, in his official capacity as a police officer, with intent to obtain a personal advantage for himself or for Joseph DeCicco, performed an act in excess of his lawful authority; to wit: the procurement of information, that being the name and address of a specified vehicle registration number owner by means of a computer check through LEADS for purposes other than that of law enforcement.

The official misconduct statute provides in relevant part:

"Official Misconduct. A public officer or employee commits misconduct when, in his official capacity, he commits any of the following acts:

(b) Knowingly performs an act which he knows he is forbidden by law to perform; or

(c) With intent to obtain a personal advantage for himself or another, he performs an act in excess of his lawful authority;

A public officer or employee convicted of violating any provision of this Section forfeits his office or employment. In addition he commits a Class 3 felony." (Ill. Rev. Stat. 1981, ch. 38, par. 33-3(b), (c).)

We note that the general provisions of the official misconduct statute require that the person charged be a "public officer or employee" and that he somehow acted in his "official capacity" in the commission of the offense (see People v. Deal (1979), 69 Ill. App.3d 74, 77) in the sense that he manipulated his public office or employment in order to achieve illicit gain or perform a proscribed act. People v. Steinmann (1978), 57 Ill. App.3d 887, 897-98.

• 1 Subparagraph (b) of the misconduct statute contains two additional elements which must be pleaded and proved by the State in order to completely set forth the charge. First, the State must allege that defendant knowingly performed an act which he knew he was forbidden by law to perform. (People v. Campbell (1972), 3 Ill. App.3d 984, 987, appeal denied (1972), 50 Ill.2d 649.) Thus, the maxim that a party is presumed to know the law has no application to criminal proceedings under section 33-3(b). (See 3 Ill. App.3d 984, 987-88, appeal denied (1972), 50 Ill.2d 649.) Second, the indictment must specify the precise "law" which the defendant is alleged to have violated in cases of questionable criminal conduct under subsection (b) of the official misconduct statute (People v. Adams (1978), 64 Ill. App.3d 547, 548-50), since section 33-3(b), standing by itself, does not delineate specific criminal conduct but rather derives its meaning by referring to acts which are known to the defendant to be "forbidden by law" (64 Ill. App.3d 547, 549).

• 2 The gist of subparagraph (c) of the misconduct statute, on the other hand, is that a public official has attempted to personally enrich himself or another by an act exceeding his "lawful authority" as a public servant. (People v. Barlow (1974), 58 Ill.2d 41, 43-44; see People v. Hajostek (1977), 49 Ill. App.3d 148, 152.) Stated more accurately, the two additional elements required in a charge under section 33-3(c) of the Criminal Code of 1961 are that the defendant act with an intent to obtain a personal advantage for himself or another and that he perform the act in excess of his lawful authority, specifying in detail the act performed. Like subparagraph (b), subparagraph (c) standing alone does not delineate specific criminal conduct (see People v. Adams (1978), 64 Ill. App.3d 547, 549; People v. Thoms (1977), 50 Ill. App.3d 398, 402), but it derives its meaning by specifying an act described as being "in excess of [defendant's] lawful authority" (Ill. Rev. Stat. 1981, ch. 38, par. 33-3(c)). The term "lawful authority" derives its meaning from a set ...


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