People v. Bongarzone

• Decision Date: 31 March 1986
• Citation: 500 N.Y.S.2d 532,116 A.D.2d 164
• Parties: The PEOPLE, etc., Respondent, v. Francis BONGARZONE, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 532

500 N.Y.S.2d 532

116 A.D.2d 164

The PEOPLE, etc., Respondent, v. Francis BONGARZONE, Appellant.

Supreme Court, Appellate Division Second Department.

March 31, 1986.

Mahler & Harris, P.C., Kew Gardens, (Stephen R. Mahler, of counsel), for appellant.

Elizabeth Holtzman, Dist. Atty., Brooklyn (Barbara D. Underwood, Michael Gore and Andrew J. Frisch, of counsel), for respondent.

Before LAZER, J.P., and BRACKEN, BROWN and LAWRENCE, JJ.

BROWN, Justice.

This case arises out of the defendant's conviction of various crimes resulting from the operation of a motor vehicle involved in a fatal accident. We are asked on this appeal to review a number of issues, including whether the People established the commission of an overt act necessary to sustain the defendant's conspiracy conviction based upon an attempt to murder a key witness to the accident and whether Criminal Term properly admitted into evidence the recorded conversations of the defendant's mother as a coconspirator.

The defendant was charged under three separate indictments with a variety of offenses, including leaving the scene of an accident without reporting as a felony, falsely reporting an incident in the third-degree, unauthorized use of a motor vehicle in the third degree, criminal solicitation in the second degree, and conspiracy in the fourth degree. The charges arose initially out of a single-vehicle accident in which a stolen car, allegedly being driven by the defendant, collided with a utility pole, killing two of the passengers in the vehicle and injuring the others. The defendant, it was charged, fled from the scene to a nearby motel where, rather than reporting the accident to the police, he falsely reported that he had been injured during a robbery. However, one of the passengers, Lynn Zachareas, who had reported the accident to the police, went to the motel and informed the police that the defendant had been driving the vehicle. This led to the first series of charges against the defendant.

Subsequently, while incarcerated and awaiting trial on the charges arising out of the accident, the defendant allegedly conspired with a fellow inmate, Thomas Moore, to arrange for the murder of Ms. Zachareas. As it turned out, however, Moore, who had no intention of actually aiding the defendant, contacted the authorities and agreed to cooperate with them. With Moore's assistance, the defendant was placed in contact with an undercover police officer, Detective Daniel Pantano, who posed as a hired killer. Through Moore, the defendant provided Pantano with the telephone numbers of his mother and sister. During one conversation, the defendant informed Pantano that he should contact his mother and that he, the defendant, would call her and instruct her to arrange to meet with Pantano to provide him with the address and a photograph of the intended victim, as well as an initial payment against the agreed price for the killing. Pantano later spoke to both the defendant's mother and his sister regarding arrangements to obtain the photograph and the money, but no meeting ever actually took place. Based upon these events, however, the defendant was charged, inter alia, with the crimes of conspiracy and criminal solicitation.

Thereafter, the indictments were consolidated pursuant to CPL 200.20 2(b), (4) and (5), and, following trial, the jury returned a verdict finding the defendant guilty of the crimes of unauthorized use of a motor vehicle in the third degree, leaving the scene of an accident without reporting as a felony, falsely reporting an incident in the third degree, criminal solicitation in the second degree, and conspiracy in the fourth degree.

Initially, the defendant argues that his guilt of the crime of criminal solicitation in the second degree was not established beyond a reasonable doubt. We disagree. "A person is guilty of criminal solicitation in the second degree when, with intent that another person engage in conduct constituting a class A felony, he solicits, requests, commands, importunes or otherwise attempts to cause such other person to engage in such conduct" (Penal Law § 100.10). Viewing the evidence presented to the jury in the light most favorable to the People, as we must, we conclude that a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt (see, People v. Malizia, 62 N.Y.2d 755, 476 N.Y.S.2d 825, 465 N.E.2d 364, cert. denied 469 U.S. 932, 105 S.Ct. 327, 83 L.Ed.2d 264; People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932). The evidence reveals that the defendant provided telephone numbers to Moore so that the purported contract killer could arrange with the defendant's mother and sister for the payment of a fee and for the receipt of information to aid the killer in locating the prospective victim. He also suggested to Moore a possible method that the killer might use (a poisoned heroin injection), to make it appear as though the death was an accident. Moreover, from the defendant's conversations with Detective Pantano, the jury could have reasonably concluded that the defendant believed that he had reached an agreement with Pantano to the effect that Pantano would commit the murder on his behalf. In sum, there is sufficient evidence in the record from which the jury could have concluded that the defendant solicited Detective Pantano to intentionally murder Lynn Zachareas (see, Penal Law § 125.25[1] ) and therefore could have found that the defendant was guilty of the crime of criminal solicitation in the second degree (see, Penal Law § 100.10).

The defendant also contends that the People failed to prove his guilt of the crime of conspiracy in the fourth degree. Specifically, the defendant claims that the People failed to establish that he performed an overt act in furtherance of the conspiracy, an essential element of any conviction for the crime of conspiracy (see, Penal Law § 105.20). Again, we disagree. Once a conspiratorial agreement is established, the People must prove an overt act by one of the conspirators. Such proof need not be by direct evidence but may be established circumstantially (see, People v. Mackell, 47 A.D.2d 209, 213, 366 N.Y.S.2d 173, affd. 40 N.Y.2d 59, 386 N.Y.S.2d 37, 351 N.E.2d 684). The purpose of the overt act requirement in conspiracy prosecutions is both to provide corroboration of the existence of the agreement to commit a crime, as well as to establish that the conspiracy has gone forward to an extent that it poses a sufficient threat to society to call for penal sanctions (see, People v. McGee, 49 N.Y.2d 48, 424 N.Y.S.2d 157, 399 N.E.2d 1177, cert. denied sub nom. Quamina v. New York, 446 U.S. 942, 100 S.Ct. 2167, 64 L.Ed.2d 797; People v. Menache, 98 A.D.2d 335, 470 N.Y.S.2d 171).

The overt act alleged at bar was a telephone call placed by the defendant to his mother instructing her to provide a photograph of Ms. Zachareas to Detective Pantano. Clearly, a telephone conversation may constitute an overt act in furtherance of a conspiracy, provided it is an independent act which tends to carry out the conspiracy and is not simply a conversation in which the conspirational agreement is reached (see, People v. Kellerman, 102 A.D.2d 629, 479 N.Y.S.2d 815; cf. People v Menache, supra). The telephone conversation alleged to have occurred at bar clearly fits under the former category since its purpose was not merely to arrange for the payment of money to the hired killer to secure his agreement to murder the intended victim, but also to place a photograph and other information identifying the victim into the killer's hands and thus to carry forward the object of the conspiracy (see, People v. Ortiz, 100 A.D.2d 6, 473 N.Y.S.2d 288; People v. Menache, supra).

Generally, under the so-called state of mind exception to the hearsay rule, a trier of facts may infer from a declarant's statement of intention to perform a subsequent act that the act was in fact performed (see, Mutual Life Ins. Co. of N.Y. v. Hillmon, 145 U.S. 285, 12 S.Ct. 909, 36 L.Ed. 706). Some criticism has, however, developed over the admissibility of such declarations, particularly in the context of criminal proceedings, where the inference sought to be drawn implies some conduct on the part of one other than the declarant or to some extent requires that individual's cooperation (People v. Malizia, 92 A.D.2d 154, 159, 460 N.Y.S.2d 23, affd. 62 N.Y.2d 755, 476 N.Y.S.2d 825, 465 N.E.2d 364, cert. denied 469 U.S. 932, 105 S.Ct. 327, 83 L.Ed.2d 264). This situation commonly presents itself where the declarant states his intention to meet--or, as here, place a telephone call to--a third person. It has been held, however, that a declaration made by such an individual may properly be received in evidence "where the statement is made under circumstances that make it probable that the expressed intent is a serious one, and that it [is] realistically likely that" the meeting or conversation will in fact take place (People v. Malizia, 92 A.D.2d 154, 160, 460 N.Y.S.2d 23, supra; see also, United States v. Pheaster, 544 F.2d 353, cert. denied sub nom. Inciso v. United States, 429 U.S. 1099, 97 S.Ct. 1118, 51 L.Ed.2d 546). At bar, the expressed intent was clearly serious given the subject matter of the declaration. Further, the defendant's explicit statement to Detective Pantano that he would place the telephone call to his mother immediately and that Pantano should contact her at a specified time, made it likely that such a telephone call would be placed. Moreover, the contents of the recorded telephone conversation that Pantano thereafter had with the defendant's mother indicates that the defendant's mother understood that she was supposed to provide Pantano with a sum of money and a photograph of the intended victim. Thus, under the circumstances of this...