People v. Joyce

• Decision Date: 09 April 1984
• Citation: 100 A.D.2d 343,474 N.Y.S.2d 337
• Parties: The PEOPLE, etc., Respondent, v. Robert Patrick JOYCE, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 337

474 N.Y.S.2d 337

100 A.D.2d 343

The PEOPLE, etc., Respondent, v. Robert Patrick JOYCE, Appellant.

Supreme Court, Appellate Division,

Second Department.

April 9, 1984.

Judd Burstein, New York City (Gerald L. Shargel, New York City, of counsel), for appellant.

Patrick Henry, Dist. Atty., Riverhead (Steven A. Hovani, Commack, of counsel), for respondent.

Before MOLLEN, P.J., and WEINSTEIN, BROWN and BOYERS, JJ.

MOLLEN, Presiding Justice.

On this appeal, we are called upon to determine whether a conviction of conspiracy in the fourth degree can be sustained in the absence of proof that, as part of a conspiracy to burglarize a bank, the defendant agreed with his coconspirators that, if necessary, what would appear to be a firearm was to be displayed during the burglary. We hold that, in the absence of such proof, the conviction cannot stand.

By Suffolk County Indictment Number 1764/82, Robert Patrick Joyce, the defendant, was accused of committing the crime of conspiracy in the fourth degree. The indictment charged that "from on or about and during the month of August, 1981, to on or about and during the month of October, 1981, with intent to steal property from the Republic National Bank, by means of conduct constituting the crimes of Burglary in the Second Degree and Robbery in the First Degree" the defendant agreed with a named codefendant, one Louis Calo, and with others, to engage in such conduct. In the answer to a request for a bill of particulars, the People stated that the subdivisions of the statutes setting forth the crimes of burglary in the second degree and robbery in the first degree which would have been violated as a result of the alleged conspiracy were, respectively, sections 140.25 (subd. 1, par. [d] ) and 165.15 (subd. 4) of the Penal Law.

Defendant was tried separately from his codefendant. After the taking of testimony, the court concluded that whatever agreements may have been made concerning the commission of a robbery, they had been abandoned prior to the defendant's entry into the conspiracy. The case was therefore submitted to the jury on the theory that the defendant conspired with Calo, and others, to commit a class C felony, viz., burglary in the second degree as defined in section 140.25 (subd. 1, par. [d] ) of the Penal Law and that to this end certain overt acts were committed. As an alternative, the court instructed the jury that they could consider the crime of conspiracy in the fifth degree, as a lesser included offense, if they found that the conspiracy did not encompass burglary in the second degree but, rather, burglary in the third degree. Specifically the court charged that if the People failed to prove beyond a reasonable doubt that the conspiracy encompassed the possible "use of a weapon * * * [t]hen you don't have Burglary in the Second Degree; you have Burglary in the Third Degree * * * Now if you have Burglary in the Third Degree, that's not a Class C Felony that's a Class D Felony and, therefore, the defendant cannot be guilty of Conspiracy in the Fourth Degree. But he can be guilty of Conspiracy in the Fifth Degree". Defendant was found guilty of conspiracy in the fourth degree.

On appeal, the defendant contends, inter alia, that assuming a conspiracy existed to commit burglary in the second degree, as defined in paragraph (d) of subdivision 1 of section 140.25 of the Penal Law, there was no evidence that, when he allegedly joined the conspiracy approximately one month after its inception, he agreed to the plan to display what would appear to be a firearm during the burglary of the Republic National Bank or that he was even aware of that plan. The defendant contends that, at most, the People proved him guilty of the crime of conspiracy in the fifth degree.

The People, in essence, argue that to sustain the defendant's conviction it is sufficient to establish that the conspiracy encompassed the plan "to display a weapon", and that the defendant conspired with his coconspirators to burglarize the bank. The People further argue that they are under no legal obligation to demonstrate the defendant's acquiescence in or awareness of that part of the conspiracy which called for the display of what would appear to be a firearm. The People in effect concede the absence of proof that the defendant's conspiratorial agreement included such a display.

In People v. Schwimmer 66 A.D.2d 91, 94-95, 411 N.Y.S.2d 922, affd. 47 N.Y.2d 1004, 420 N.Y.S.2d 218, 394 N.E.2d 288 we stated that "Central to the crime of conspiracy is the agreement to commit some other, substantive crime. More fundamentally, the basis of conspiratorial liability is not to punish the agreement per se, but rather, like other inchoate crimes, to punish the firm purpose to commit a substantive crime, while hopefully preventing the actual commission thereof. Although constituted by agreement, the crime of conspiracy is directed at the intended result of the agreement

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"The most pervasive aspect of conspiracy is its status as an inchoate crime. Like attempt and solicitation, conspiracy is directed at conduct which is preparatory to the commission of a substantive offense. However, liability for conspiracy attaches at a much earlier stage than does liability for attempt or solicitation. Consequently, particular caution is required in establishing liability for conspiracy.

"An essential element of every conviction for conspiracy in New York, regardless of degree, is that a person with intent to commit a substantive crime, agrees with another to commit such crime (see Penal Law, art 105). In the context of the early stage of attaching criminal liability, the element of agreement is required to identify the manifestation of the firm criminal purpose to commit a substantive crime. Thus, the 'act' of agreeing is concrete and unambiguous as an expression of each actor's intent to violate the law. Like other inchoate crimes, the raison d'etre of conspiracy is the underlying substantive crime. Thus, the agreement itself must be to 'engage in or cause the performance' of a substantive crime. Furthermore, the statutory grading system makes the degree of conspiratorial liability contingent upon the grade of the substantive crime sought to be committed. From this perspective, the mens rea of conspiracy is to agree with one or more persons to perform a substantive criminal act. The fact of agreement serves only to unequivocally establish a particular actor's intent to commit the object crime by acting with others".

In New York, the Legislature has set forth six degrees of conspiracy (see Penal Law, §§ 105.00, 105.05, 105.10, 105.13, 105.15, 105.17). A distinguishing factor among them is the grade of the substantive crime...