People v. Coleman
| Decision Date | 17 October 1989 |
| Citation | 547 N.Y.S.2d 814,547 N.E.2d 69,74 N.Y.2d 381 |
| Parties | , 547 N.E.2d 69 The PEOPLE of the State of New York, Respondent, v. Roy COLEMAN, Appellant. |
| Court | New York Court of Appeals Court of Appeals |
The defendant was convicted, after a jury trial, of attempted promoting prostitution in the second degree (Penal Law §§ 110.00, 230.30[2] and grand larceny in the third degree (Penal Law former § 155.30[5]. The evidence presented at trial established that the defendant had approached a 24-year-old undercover police officer whom he believed to be a 15-year-old runaway, encouraged her to engage in prostitution and proposed to act as her pimp. The defendant also asked the decoy to give him the gold chain she was wearing, and when she refused, he snatched it from around her neck and later sold it for $30. The defendant's conviction was affirmed by the Appellate Division. 143 A.D.2d 552, 532 N.Y.S.2d 862.
The issue presented by this appeal is the propriety of the defendant's conviction for attempted promoting prostitution in the second degree. Section 230.30(2) of the Penal Law provides that a person is guilty of promoting prostitution in the second degree, a class C felony, "when he knowingly * * * [a]dvances or profits from prostitution of a person less than sixteen years old " (emphasis added). According to section 230.15(1) of the Penal Law, "advancing prostitution" includes the situation where an actor "knowingly causes or aids a person to commit or engage in prostitution * * * or engages in any other conduct designed to institute, aid or facilitate an act or enterprise of prostitution." In the case now before us, although there is ample evidence that the defendant believed the officer to be 15 when he encouraged her to become a prostitute, it was nonetheless impossible for him to have been convicted of the completed crime of promoting prostitution in the second degree since the officer was in fact 24. The defendant concedes that he could properly have been convicted of promoting prostitution in the fourth degree, a class A misdemeanor where age is not an element of the crime at all.
Section 110.00 of the Penal Law states that "[a] person is guilty of an attempt to commit a crime when, with intent to commit a crime, he engages in conduct which tends to effect the commission of such crime." In other words, an attempt is an act done with an intent to commit some other crime. As we noted in People v. Bracey, 41 N.Y.2d 296, 299, 392 N.Y.S.2d 412, 360 N.E.2d 1094, the theory is that although the defendant may have failed in the purpose, the conduct can be treated as a crime in itself if carried far enough to cause a sufficient risk of harm. In order to prove an attempt, it is necessary to establish (1) that the defendant had the intent to commit a specific offense; and (2) that the defendant engaged in some affirmative act to carry out that intent (id., at 300, 392 N.Y.S.2d 412, 360 N.E.2d 1094; see also, People v. Moran, 123 N.Y. 254, 257, 25 N.E. 412).
In this case, it was reasonable for the jury to conclude that the defendant had intended to encourage the officer to engage in prostitution. The only remaining question is whether the defendant's mistake as to the true age of the officer should negate his culpability where, but for her age, his conduct would otherwise constitute the completed offense of promoting prostitution in the second degree. We conclude that it does not.
In reaching this conclusion, we are guided by the clear language of section 110.10 of the Penal Law, that where a person engages in conduct that otherwise constitutes an attempt, "it is no defense to a prosecution for such attempt that the crime charged to have been attempted was, under the attendant circumstances, factually or legally impossible of commission, if such crime could have been committed had the attendant circumstances been as such person believed them to be." The defendant did all that was necessary to complete the crime of promoting prostitution in the second degree and would have been guilty of the completed crime if the attendant circumstances had been as he believed them to be, that is, if the officer had been 15 instead of 24. The defendant's mistake in that respect should not block his conviction for the attempt where it is the sole obstacle to his conviction for the completed crime.
Defendant contends, however, that attempted promoting of prostitution in the second degree is a nonexistent crime because it makes criminal...
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