People v. Ettman
| Decision Date | 03 April 1979 |
| Parties | The PEOPLE of the State of New York v. Harvey ETTMAN, Defendant. |
| Court | New York City Court |
John J. Santucci, Dist. Atty., Queens County by Henry Ramirez, Asst. Dist. Atty., Kew Gardens, for the People.
Sidney J. Ettman, New York City, for defendant.
The defendant was arrested on December 29, 1978 and charged with two Class A Misdemeanors to wit, an attempt to possess stolen property in the second degree (110.00/165.45 P.L.) and criminal solicitation in the second degree (100.05 P.L.).
The defendant moves for a dismissal of the "information" pursuant to the provisions of Sec. 170.30 1(a) CPL and 170.35 1(a) CPL alleging Inter alia that the complaint is defective on its face (CPL 100.40; Sec. 100.15 CPL) in that a crime was not spelled out in the accusatory instrument, and more specifically as regards the attempt to possess stolen property. The People orally opposed the motion but submitted no affidavit in opposition.
The defendant rented a stall for the purpose of buying and selling property at a "Flea Market" located in Queens County. On December 29, 1978, an agent for the New York City Police Department engaged in a conversation with the defendant and sold him a Leica camera, one 8-track auto stereo, and a Lafayette stereo, all for the sum of $25. At the time the property was sold it is alleged that the defendant was advised that the items were stolen property. In fact, the items had been procured from the New York City Police Department Property Clerk's Office and had a value substantially in excess of $250. After the conclusion of the transaction, the defendant was arrested and charged as set forth above:
The defendant contends that:
1. No crime of criminally receiving stolen property exists where the property was not stolen,
2. Defendant did not engage in any conduct which tended to effect the commission of a crime, and
3. Defendant did not solicit anyone to commit a crime.
The elements of the crime that must be met to establish the defendant's culpability under Sec. 165.45 of the P.L. are:
1. Knowing possession of;
2. Stolen property;
3. With intent to benefit himself;
4. When he is in the business of buying or selling property.
"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." (110.00 P.L.). The Court of Appeals in People v. Bracey, 1977, 41 N.Y.2d 295, 392 N.Y.S.2d 412, 415, 360 N.E.2d 1094, 1097, discussed the requirements that establish the crime of "attempt to commit a crime." "(I)t must first be established that the defendant acted with a specific intent; that is, that he intended to commit a specific crime." People v. Bracey, supra, and secondly, "there be 'conduct which tends to effect the commission of' the crime contemplated." People v. Bracey, supra.
Based on the uncontroverted facts, the defendant at the time and place of occurrence was a dealer buying and selling property. He allegedly purchased property believing that said property was stolen. The property was not, in fact, stolen at the time the defendant purchased it, since the property was being sold by an agent of the Police Department. Under the operative facts, can a defendant be convicted of an attempt to possess "stolen" property under the mistaken belief that the property is stolen?
For the purpose of this motion there can be no question but that the defendant was specifically seeking to purchase property that he believed was stolen. In fact, he did purchase the property as part of this undercover police operation. The requirements of the statute (110.00 P.L.) as interpreted by Bracey have been met.
We now come to the issue of whether the attempt to commit the crime must fall because of legal impossibility, to wit, since the defendant could never have been convicted of the completed crime of possession of stolen property the property was not stolen does that vitiate the attempt to commit that crime? People v. Jaffe, decided by the Court of Appeals in 1906, 185 N.Y. 497, 78 N.E. 169, held that one who received goods which he believed to be stolen, but which were not in fact stolen, was not guilty of an attempt to receive stolen goods. The Jaffe case had been specifically overruled when the Penal Law was revised in 1967. (See 110.10 P.L.). The change in the law rejected impossibility as a defense upon the theory that impossibility does not detract from the offender's culpability. (McKinney's Cons. Laws of N.Y., Book 39, Penal Law, Practice Commentary to Sec. 110.10, p. 320).
It has been held that impossibility was neither a defense in a motion to inspect Grand Jury minutes, nor a basis for a further order of dismissal upon the grounds that the evidence submitted to the...
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