People v. Cheathem
| Decision Date | 27 May 1997 |
| Parties | The PEOPLE, etc., Appellant, v. Michael CHEATHEM, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Charles J. Hynes, District Attorney, Brooklyn (Roseann B. MacKechnie, Leonard Joblove, and Camille O'Hara Gillespie, of counsel), for appellant.
Daniel L. Greenberg, New York City (Peter T. Blum, of counsel), for respondent.
Before ROSENBLATT, J.P., and O'BRIEN, RITTER and COPERTINO, JJ.
MEMORANDUM BY THE COURT.
Appeal by the People from an order of the Supreme Court, Kings County (Lipp, J.), dated June 27, 1996, which granted the defendant's motion to dismiss the indictment on the ground that the evidence before the Grand Jury was legally insufficient.
ORDERED that the order is reversed, on the law, the motion is denied, the indictment is reinstated, and the matter is remitted to the Supreme Court, Kings County, for further proceedings.
The People presented evidence to the Grand Jury that in December 1995 the defendant offered to pay an undercover police officer $5,000 to make his sister-in-law "disappear" and $300 to burn her van. The officer informed the defendant that he needed half the payment in advance. The following February the defendant told the undercover officer that he had been unable as yet to obtain the money but he was ready to put his plan together and needed time to sell some gems. The defendant also told the undercover officer to "take care of" his sister-in-law's boyfriend, too, because he did not want anyone seeking retribution. The defendant stated he would contact the undercover officer after he had obtained the money and worked out a plan. The defendant was arrested later that month, without making any further contacts with the undercover officer. He was indicted on charges of criminal solicitation in the second degree (two counts) (Penal Law § 100.10) and criminal solicitation in the fourth degree (Penal Law § 100.05).
A person is guilty of criminal solicitation in the fourth degree when, "with intent that another person engage in conduct constituting a felony, he solicits, requests, commands, importunes, or otherwise attempts to cause such other person to engage in such conduct" (Penal Law § 100.05[1] ). 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). Thus, as applied to the instant case, an essential element of both criminal solicitation in the second degree and criminal solicitation in the fourth degree is proof that the defendant acted with the intent that the...
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