People v. De Cabia
| Decision Date | 16 April 1958 |
| Citation | 10 Misc.2d 923,172 N.Y.S.2d 1004 |
| Parties | The PEOPLE of the State of New York v. Carmen DE CABIA, Gulivo Ugolini, Ignazio Aniello, Edward J. Napolitano, Nicholas Paul Ferrante, Vincent Buffa, Nicholas Conte, Vincent Conte, Frank Ruggiero, and Alfred Fasula, Defendants. |
| Court | New York County Court |
Frank A. Gulotta, Dist. Atty., of Nassau County, Mineola, for the people.
Blake & Gurlides, Mineola, for defendant, Carmen DeCabia.
The defendant Carmen DeCabia seeks leave to withdraw his plea of not guilty so as to enable him to demur to the sufficiency of the indictment. The fact that the said defendant is now represented by counsel other than the one who represented him at his arraignment dictates the granting of permission to withdraw the existing plea. The attention of the Court is now directed to that part of defendant's application which demurs to the sufficiency of the indictment. The written demurrer annexed to the moving papers states that the facts alleged in the indictment do not constitute a crime.
The indictment charges a violation of Section 580 of the Penal Law in that the ten defendants, of whom the applicant herein is one, each aiding and abetting the other, unlawfully conspired to commit the crime of bribing a public officer, namely, the Supervisor of the Town of Oyster Bay. It is alleged that the defendants agreed to give to said official the approximate sum of $1,105 to induce him to refrain from any official action which would tend to initiate the operation of a public garbage district of the Town of Oyster Bay and thus permit the defendants, who were engaged in the business of private sanitation collection in said area, to continue their business without public interference.
In furtherance of this conspiracy, the indictment alleges two overt acts:
(1) That the said defendants agreed and planned to give to said public official 40cents per house and that they met, conversed and agreed and planned that they would give, and that defendant Carmen DeCabia would act as agent for the said co-conspirators, and thus induce said official to delay action on the operation of a public garbage district;
(2) That during the month of December, 1955 defendants Ugolini and Buffa gave DeCabia $280.00; Aniello and Ferrante gave him $380.00; Napolitano gave him $320.00; N. and V. Conte gave him $140.00; Ruggiero gave him $85.00; and Fasula gave him an unknown amount, which sums were received and accepted by DeCabia in pursuance and furtherance of the aforesaid agreement.
The indictment is assailed on the ground that the elements of the crime of conspiracy are not sufficiently alleged since the overt acts set forth therein do not meet the statutory requirement that the overt acts constitute acts outside of the conspiracy in furtherance of the objective of the conspiracy.
Section 583 of the Penal Law modified the common law with respect to conspiracy by requiring, in addition to the initial plot to commit an unlawful act, an overt act in furtherance thereof. Thus, in the proof of criminal conspiracy, as defined by this section, two necessary elements must be alleged and proven: (1) the unlawful agreement and (2) an overt act done by one or more of the parties to effect its object (People v. Tavormine, 257 N.Y. 84, 177 N.E. 317, 75 A.L.R. 1405; People v. Collins, 234...
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...of Donald W. McCormick, dated September 19, 1994 (McCormick Supp. 9/94), ¶ 3. The opinion in People of the State of New York v. DeCabia, 10 Misc.2d 923, 172 N.Y.S.2d 1004, 1005-6 (Nassau Co.Ct.1958), aff'd 8 A.D.2d 825, 190 N.Y.S.2d 142 (2d Dept.1959), aff'd 7 N.Y.2d 823, 196 N.Y.S.2d 701, ......
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