People v. Bauer
| Decision Date | 11 September 1969 |
| Citation | 305 N.Y.S.2d 42,32 A.D.2d 463 |
| Parties | PEOPLE of the State of New York, Respondent, v. Stanley J. BAUER, Appellant. PEOPLE of the State of New York, Respondent, v. Eugene J. SROKA, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Michael F. Dillon, Buffalo, for respondent (Peter J. Notaro, Buffalo, of counsel).
Vincent E. Doyle, Jr., Buffalo, for appellant, Sroka.
Before DEL VECCHIO, J.P., and WITMER, GABRIELLI, BASTOW and HENRY, JJ.
These are joint appeals from judgments of the County Court of Erie County rendered June 19, 1968 upon verdicts (1) convicting both defendants of the crime of conspiracy, and (2) convicting defendant Bauer of the crime of attempted grand larceny first degree, allegedly committed in December 1965.
The indictment charged both defendants in the first count with conspiracy to commit the crimes of bribery and grand larceny, and in the second count with the crime of attempted grand larceny by false pretenses. The jury returned a verdict of not guilty on the second count against defendant Sroka.
In November 1965 a shoplifter had been apprehended and brought to the office of Carl Gmerek, a 22-year old office manager of a food store, and after some discussion Gmerek agreed to 'forget' the whole incident upon payment to him of $500. Upon reflection, the shoplifter disavowed the scheme and reported it to the District Attorney, who arranged for payment of the money to Gmerek. When the money was paid Gmerek was arrested for extortion. Although Gmerek had retained counsel he inquired of defendant Sroka, a security officer in his store, if he knew anyone who could help him. The next day Sroka informed Gmerek that defendant Bauer, an ex-state senator, had great influence and could perhaps have the charge dropped but it might involve paying off some people. He arranged for Gmerek to meet Bauer. At this meeting held on December 3, 1965, attended by all three, Bauer and Gmerek had a discussion in which Sroka did not participate. Gmerek was advised to discharge his attorneys; Bauer 'guaranteed' he could produce a satisfactory result because of his influence with certain public officials and agreed to make an inquiry to determine how much of a pay-off might be required. At that meeting Gmerek intended to go along with Bauer's suggestion to turn over money to resolve or drop the pending charges. Before the scheduled second meeting, Gmerek upon reflection concluded that Bauer was a name dropper who couldn't do anything for him and advised Sroka he had reconsidered Bauer's proposition, decided to decline his help and withdrew from any arrangement. Sroka did not attempt to induce Gmerek's continued participation in the scheme. Thereafter Gmerek revealed all these events to his attorneys, who advised the District Attorney, and Gmerek agreed to co-operate with him in an investigation of the defendants. By pre-arrangement with the District Attorney, Gmerek's office was equipped with a hidden microphone and Sroka was called to his office. Gmerek asked him whether Bauer would 'take him back on'. Sroka indicated that Bauer had become very displeased with Gmerek for backing out of the original deal because he had done 3 or 4 days of research on his case. He did however arrange for another meeting. The record shows no other meeting between Gmerek and Sroka, only the one meeting at which all three were present, and no other meeting between Sroka and Bauer. Gmerek, on the other hand, conferred with Bauer on two more occasions, during both of which he was equipped with a concealed transmitter tuned to a receiver in the District Attorney's car. At the second meeting Bauer advised Gmerek that he had discussed the extortion charge with the District Attorney and certain other people (when in fact the record reveals he had never done so); that the charges could be favorably disposed of for $3,000 but he would try for $2,000, and he requested Gmerek to bring that sum in cash at their next meeting. Gmerek was furnished the money in marked bills by the District Attorney, and after it was given to Bauer the latter was arrested. These conversations, transmitted to the District Attorney's car, were taken down in shorthand by a court stenographer. Both the shorthand notes and the transcripts are a part of the record.
The verdict of guilty against both defendants on the conspiracy count and of acquittal in favor of Sroka on the attempted grand larceny count is a clear indication that the conspiracy conviction was based upon the three-way conversation of December 3 in which Bauer expressed his intent to bribe. This proof however, as will be hereinafter demonstrated, was not sufficient to support the conviction on that count.
It is well established that to constitute the crime of conspiracy there must be a corrupt agreement between two or more individuals entered into with a criminal intent to do an unlawful act either as a means or an end, followed by an overt act to effect the object of the agreement. (Penal Law, §§ 580, 583; People v. Harris, 294 N.Y. 424, 433, 63 N.E.2d 17, 22; People v. Tavormina, 257 N.Y. 84, 177 N.E. 317, 75 A.L.R. 1405; People v. Flack, 125 N.Y. 324, 26 N.E. 267.)
Our examination of the record fails to reveal the existence of either necessary element of the crime. Referring to the first and only three-way meeting of December 3, no illegal combination was formed since the only 'agreement' made was one between Bauer and Gmerek to meet again the following week. At this meeting Bauer attempted to persuade Gmerek of his influence and promised to talk to certain people to see how much money was needed to effect a bribe. Even assuming that an agreement to bribe could be implied from the acts and conduct of the parties, together with Gmerek's testimony that he was willing to do anything to get out of his trouble, and that as he left the meeting it was his intention to turn over money to Bauer to resolve or have the charge dropped, there is no proof that Gmerek delivered any money or that Bauer attempted to bribe anyone before the unlawful agreement had been abandoned; consequently there was no overt act in furtherance of such an agreement sufficient to support the charge of conspiracy to bribe. (People v. Hines, 284 N.Y. 93, 113, 29 N.E.2d 483, 493.)
The next contact between Sroka and Gmerek was when the latter announced his retirement from any dealings with Bauer. The 'plan' was revived when the District Attorney requested Gmerek to assist in investigating defendants. From this point on Gmerek could not have had the requisite criminal intent to enter into a conspiracy to bribe because he was no longer relying upon Bauer's representations. (People v. Flack, supra; People v. Powell, 63 N.Y. 88.)
Although Sroka arranged for Gmerek to meet Bauer again, there is no proof that he ever participated in any unlawful agreement and therefore he could not be convicted of conspiracy. If Sroka could not be convicted of conspiracy, Bauer, his alleged co-conspirator, likewise could not be convicted of conspiracy. In People v. Hamilton, 165 App.Div. 546, 151 N.Y.S. 125, the court held that a conspiracy involves of necessity the joint agreement of at least two parties and that it is necessary to prove the guilt of both in order to sustain the conviction of one. In People v. Kuland, 266 N.Y. 1, 193 N.E. 439, 97 A.L.R. 1311, it was held that upon such an indictment against two persons an acquittal or reversal as to one is an acquittal or reversal as to the other. (See also People v. Chaplin, 8 A.D.2d 286, 187 N.Y.S.2d 730.)
It follows that the judgment convicting both appellants of the crime of conspiracy should be reversed and the first count of the indictment dismissed.
With reference to the second count, defendant Bauer contends that his conviction for attempted grand larceny based on the events surrounding the payment of the $2,000 cannot stand. He argues, as he did at the trial, that since it was legally impossible for him to have consummated the crime of grand larceny, he cannot be guilty of an attempt, relying on People v. Rollino, 37 Misc.2d 14, 233 N.Y.S.2d 580, and cases cited therein. We disagree with this contention.
At the December 3 meeting Bauer, among other things, advised Gmerek that he had influence with the District Attorney and a few judges; that he could help him out; that Gmerek was to drop his attorneys; that he would guarantee a plea to a lesser offense and probation; that new attorneys would be appointed by the District Attorney. When asked how much it was going to cost, Bauer replied, He stated he would talk to certain people to see how much was needed and fixed the date for the next meeting. These statements certainly are expressions of intent to bribe but subsequent events disclosed that his actual intent was not to bribe but to defraud by obtaining money from Gmerek by false pretenses, and the crime of larceny by false pretenses could have been, and probably would have been, consummated if his design had not been interrupted by a change of heart by Gmerek, a fact unknown by Bauer. However, before the second meeting Gmerek discussed Bauer's representation with his employer, and decided to withdraw from the arrangement, which was later revived by the District Attorney, thus preventing the consummation of the crime of larceny.
The transcript of the recorded conversation between Bauer and Gmerek at the second meeting on December 19 reveals that Bauer, among other false statements, said that he was running City Court; that he went there and talked with the Assistant District Attorney who said he'd do anything the boss says; that he had talked with the District Attorney who was asking for $3,000 and that he went to County Court...
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