## Facts

- Alan Hochberg was a New York State Assemblyman who planned to run for reelection in 1976 and later to seek a civil court judgeship in 1977.
- Charles Rosen was a well-known political figure in Co-Op City and a leader associated with a major rent strike there.
- In January and February 1976, Hochberg met with Rosen while Rosen was viewed as a possible challenger in the Democratic primary.
- The People’s proof was that Hochberg sought Rosen’s promise not to run against him in the 1976 primary.
- According to Rosen’s testimony and recorded conversations, Hochberg offered or promised benefits if Rosen stayed out of the race, including:
  - a legislative job paying about $20,000 per year for Rosen,
  - a session job paying about $3,000 for Rosen’s brother-in-law, and
  - a $5,000 political campaign contribution.
- The evidence included statements that Hochberg could not afford a contested assembly primary if he intended to run for judge in the near future.
- Hochberg contended the discussions were ordinary politics—forming a working relationship with Rosen’s group and considering qualified people for staff positions—rather than an improper exchange.
- A jury convicted Hochberg of violations of the Election Law and Public Officers Law and acquitted him of attempted grand larceny in the second degree.

## Issues

1. Whether the evidence permitted a finding that Hochberg made the job and money offers on the condition that Rosen would not run in the Democratic primary, constituting wrongful or corrupt election-related conduct.
2. Whether Rosen’s agreement not to run against Hochberg could qualify as a “thing of value or of personal advantage” to a legislator under Public Officers Law § 77.
3. Whether Hochberg was entitled to reversal based on entrapment, constitutional objections (including vagueness), or claimed trial errors.

## Decision

- The Appellate Division, Third Department, affirmed the judgment of conviction.
- The court held the record, including recorded conversations, supported the jury’s conclusion that Hochberg offered jobs and money in return for Rosen’s promise to stay out of the primary.
- The court upheld the convictions under former Election Law § 421(5) (charged as an attempt), concluding that offering benefits to keep an opponent off the primary ballot could be a wrongful act tending to affect the primary’s result.
- The court upheld the conviction under Election Law § 448, finding that promising to use official authority to obtain public employment on the condition that Rosen would not run could satisfy the statute’s “corrupt” condition requirement.
- The court upheld the conviction under Public Officers Law § 77, ruling that Rosen’s withdrawal from the primary could constitute a “thing of value or of personal advantage” to Hochberg.
- The court rejected Hochberg’s remaining claims, including entrapment and asserted trial errors, as providing no basis for reversal.

## Legal Principles

- Under Public Officers Law § 77, a “thing of value or of personal advantage” is not limited to cash or property; it may include an electoral benefit such as avoiding a serious primary challenge.
- A public officer violates Election Law § 448 by corruptly using, or promising to use, official authority to secure public employment upon a forbidden political condition, including a condition tied to electoral participation.
- Offering jobs, money, or contributions to induce a potential opponent not to run may constitute a wrongful act tending to affect the result of a primary election under former Election Law § 421(5); an attempt to commit that offense is punishable.
- Entrapment is generally not established where law enforcement provides an opportunity and the defendant voluntarily pursues the improper exchange; the issue is ordinarily for the jury on the trial proof.
- Statutory terms such as “corrupt” and “personal advantage” are not unconstitutionally vague as applied where the proof shows an explicit exchange of official action for an electoral benefit.

## Conclusion

The Appellate Division affirmed Hochberg’s convictions, holding that the jury could find he offered public jobs and money to obtain Rosen’s promise not to run in the 1976 primary, and that such a promise could be treated as a “personal advantage” to a legislator under Public Officers Law § 77 while also supporting Election Law violations based on wrongful or corrupt election interference.


People v. Hochberg, 62 App.Div.2d 239, 404 N.Y.S.2d 161 (1978)