People v. Lakomec

• Decision Date: 08 April 1982
• Parties: The PEOPLE of the State of New York, Respondent, v. John Moe LAKOMEC, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 71

449 N.Y.S.2d 71

86 A.D.2d 77

The PEOPLE of the State of New York, Respondent, v. John Moe LAKOMEC, Appellant.

Supreme Court, Appellate Division Third Department.

April 8, 1982.

Boreanaz, NeMoyer & Baker, Buffalo (Harold J. Boreanaz, Buffalo, of counsel), for appellant.

Patrick D. Monserrate, Dist. Atty., Binghamton (Gerald Mollen, Asst. Dist. Atty., Binghamton, of counsel), for respondent.

Before MAHONEY, P. J., and SWEENEY, KANE, WEISS and LEVINE, JJ.

MAHONEY, Presiding Justice.

In December of 1976, defendant entered into a partnership with Edward Lynch and Robert Story to purchase and operate the Parkway Tavern in Kirkwood, New York. Difficulties arose among the owners and the employees. These problems culminated in the arrest of defendant and Jeannie Mancini, a former waitress at the tavern, on October 29, 1978. Accused of conspiracy to murder Story, defendant and Mancini were charged by indictment with conspiracy in the second degree, criminal solicitation in the second degree and criminal possession of a weapon in the second degree. ¹ Following the severance of Mancini's case, defendant was convicted on all three counts. He was given a 6- to 18-year sentence on the conspiracy count and concurrent indeterminate sentences of 5 and 10 years on the charges of criminal solicitation and criminal possession of a weapon, respectively.

On this appeal, defendant contends that (1) the conspiracy count of the indictment was jurisdictionally defective in that it failed to sufficiently allege an overt act in furtherance of the conspiracy, (2) hearsay declarations of Mancini were improperly introduced into evidence against defendant, and (3) the trial court's conduct in connection with a motion to set aside the verdict due to juror misconduct violated defendant's right to due process.

The conspiracy count of the indictment charged that defendant and Mancini "did agree with each other to cause the murder of one Robert B. Story and did enlist the aid of a third person to commit said crime". Section 105.20 of the Penal Law requires that an overt act in furtherance of the conspiracy be alleged and proved before a person can be convicted of conspiracy. Defendant argues that the conspiracy count was jurisdictionally defective in that it did not allege an overt act with the factual specificity mandated by CPL 200.50 (subd. 7, par. We disagree. The conspiracy count of the indictment sufficiently informed defendant of each and every element of the crime being charged and defendant's remedy, if he believed the factual allegations inadequate to enable him to prepare a defense, was to request a bill of particulars pursuant to CPL 200.90 (People v. Jackson, 46 N.Y.2d 721, 413 N.Y.S.2d 369, 385 N.E.2d 1296; People v. Iannone, 45 N.Y.2d 589, 412 N.Y.S.2d 110, 384 N.E.2d 656; see People v. Cohen, 52 N.Y.2d 584, 439 N.Y.S.2d 321, 421 N.E.2d 813).

Equally unpersuasive is defendant's related contention that "enlistthe aid of a third person" does not, as a matter of law, constitute an overt act committed in furtherance of the conspiracy. This contention is based on caselaw which holds that acts which cement the conspiratorial agreement among the participants are not done in furtherance of the conspiracy and thus do not qualify as overt acts necessary to support a conspiracy conviction (People v. Russo, 57 A.D.2d 578, 393 N.Y.S.2d 435; People v. Wolff, 24 A.D.2d 828, 264 N.Y.S.2d 40). A more recent case, however, has held that acts which may appear to be done to cement the conspiratorial agreement may constitute overt acts if the person being enlisted does not intend to become a member of the conspiracy (People v. Teeter, 47 N.Y.2d 1002, 420 N.Y.S.2d 217, 394 N.E.2d 286, affg. 62 A.D.2d 1158, 404 N.Y.S.2d 210).

Teeter involved a situation where payments were made by a conspirator to an undercover agent to secure his participation in the conspiracy. The jury was instructed that although the payments could not be considered overt acts if it were found that the undercover agent was a conspirator, they could consider the payments as overt acts if it were found that the undercover agent lacked the necessary criminal intent to be a conspirator. This charge was upheld by the Fourth Department over a vigorous dissent by two justices (People v. Teeter, 62 A.D.2d 1158, 404 N.Y.S.2d 210 ). On appeal to the Court of Appeals, the issue was argued but not mentioned by the court in its affirming memorandum (People v. Teeter, 47 N.Y.2d 1002, 420 N.Y.S.2d 217, 394 N.E.2d 286, supra ).

In the instant case, the proof established that the third person whose aid was enlisted by defendant and Mancini was Clarence Courtright, a police informer. It is clear that Courtright never intended to participate in the conspiracy and the question of his criminal intent was thus not presented to the jury. There was evidence, however, that defendant gave Courtright a gun and bullets with which to kill Story in addition to paying him $100 as partial payment for his participation. In view of this evidence and under constraint of the affirmance by the Court of Appeals in People v. Teeter, supra, we hold that the jury was free to find that defendant's conduct in enlisting the aid of Courtright, who was not a conspirator, constituted an overt act committed in furtherance of the conspiracy.

Defendant's second issue concerns the propriety of the trial court's action in allowing hearsay statements by Mancini to be introduced into evidence against defendant. This issue involves a recognized exception to the hearsay rule which provides that out-of-court declarations by a conspirator, made during the course of and in furtherance of a conspiracy, are admissible against a coconspirator (People v. Berkowitz, 50 N.Y.2d 333, 341, 428 N.Y.S.2d 927, 406 N.E.2d 783; People v. Salko, 47 N.Y.2d 230, 237, 417 N.Y.S.2d 894, 391 N.E.2d 976; People v. Rastelli, 37 N.Y.2d 240, 244, 371 N.Y.S.2d 911, 333 N.E.2d 182). Before such statements may be admitted, however, the People must establish, by independent evidence, a prima facie case of conspiracy (People v. Berkowitz, supra; People v. Salko, supra, 47 N.Y.2d pp. 237-238, 417 N.Y.S.2d 894, 391 N.E.2d 976). Defendant contends that the conspiracy case against him rested solely on hearsay statements made by Mancini and was not supported by any independent evidence. The People point to various items of independent proof, both real and circumstantial, which they claim amply establish the existence of a conspiracy between defendant and Mancini. We find it unnecessary to resort to a detailed examination of the evidence since the conspiracy was sufficiently established by a tape recording between defendant...