People v. Lay

• Decision Date: 29 June 1972
• Citation: 334 N.Y.S.2d 398,39 A.D.2d 904
• Parties: The PEOPLE of the State of New York, Respondent, v. Preston LAY, Jr., Defendant-Appellant. The PEOPLE of the State of New York, Respondent, v. Hannibal THOMAS, Defendant-Appellant. The PEOPLE of the State of New York, Respondent, v. Wallace MARKS, Defendant-Appellant. The PEOPLE of the State of New York, Respondent, v. Ebb GLENN, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 398

334 N.Y.S.2d 398

39 A.D.2d 904

The PEOPLE of the State of New York, Respondent, v. Preston LAY, Jr., Defendant-Appellant.

The PEOPLE of the State of New York, Respondent, v. Hannibal THOMAS, Defendant-Appellant.

The PEOPLE of the State of New York, Respondent, v. Wallace MARKS, Defendant-Appellant.

The PEOPLE of the State of New York, Respondent, v. Ebb GLENN, Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

June 29, 1972.

H. A. Levine, New York City, for respondent.

Larry Rabinowitz, New York City, for defendants-appellants.

Before MARKEWICH, J.P., and MURPHY, McNALLY, TILZER and EAGER, JJ.

PER CURIAM.

Judgments of conviction, Supreme Court, New York County, rendered June 9, 1971, after trial to a jury, affirmed.

The evidence was sufficient, if accepted by the jury, to justify the verdict that defendants were guilty beyond a reasonable doubt of the crimes of which they were convicted. The fact that defendants were acquitted of the conspiracy counts is no reason to reject conviction of the counts of possession of contraband. Even were the dispositions inconsistent--and they are not--it is a jury's traditional right to be inconsistent.

As to all the convictions except those of Glenn for possession of bombs, and Lay and Thomas of possession of a rifle, we are unanimous in affirming. As to the counts on which we are divided, there seems to be no doubt that the convictions should stand. Intent to possess contraband for unlawful purposes requires no conspiracy to be shown. The requisite intent in respect of possession of the rifle by Lay and Thomas is established in the dissent itself: '. . . Thomas gave it to Lay to fit with a silencer.'; 'It is true that the defendants had conversations about future use of the rifle . . .' We are unaware of any requirement of law that the unlawful intent to use may be established only by proof that the intent to use unlawfully must be for Immediate, contemporaneous use. Nor do we know of any principle of law to the effect that an operable rifle, i.e., one capable of being loaded and discharged, may be considered a deadly weapon or a dangerous instrument only if actually loaded.

As to the possession by Glenn of bombs, the dissent agrees that '. . . Glenn supplied one ingredient for the bomb.' The proof was to the effect that he did so with intent that it be so used. This is sufficient to make Glenn an accessory (section 20.00, Penal Law) to possession by another, which Glenn facilitated. Indeed, the only citation in the dissent striking at the theory of 'accessory-to-possession' is itself of a dissent.

All concur except MURPHY, J., who dissents in part as to Appeals Nos. 5488 and 5489 and who dissents as to Appeal No. 5491 in the following memorandum:

I disagree and would reverse Glenn's conviction of possession of bombs (Penal Law § 265.05(1) and the convictions of Lay and Thomas of possessing a rifle with intent to use it unlawfully against another (Penal Law § 265.05(9)).

With the assistance of two undercover agents, all four defendants (and two others, one of whom was acquitted and the charges against the other dismissed at the close of the prosecution's case) were indicted for conspiring to murder, rob and burglarize and for possession of weapons. After a lengthy jury trial all four appellants were acquitted of the conspiracies and convicted of possession of bombs, Lay and Thomas were also convicted of possessing an M--1 rifle and Marks was also convicted of possessing a loaded pistol.

The entire thrust of the prosecution, which was rejected by the jury, was to establish the existence of the four alleged conspiracies. In connection with the possession counts, the Trial Court charged that, in the event the conspiracies were established, all of the defendants could be found guilty if any one of them was proven guilty of possessing a weapon in furtherance of any one or more of said conspiracies. Alternatively, the jury was also instructed that they could find any defendant not physically possessed of a weapon guilty as an accomplice.

This alternate theory of culpability, in my opinion, was error since the crime of accessory-to-possession does not exist. (See dissenting memorandum in People v. DeLeon, 38 A.D.2d 900, 330 N.Y.S.2d 761 decided March 9, 1972.)

Moreover, implicit in the jury's verdict in this case is their rejection, also, of such crime. Only defendants Lay and Thomas were convicted of possessing the M--1 rifle on May 10, 1968, when, in the presence of Glenn, Thomas gave it to Lay to fit with a silencer; and only Marks was convicted of possessing a loaded pistol on May 9, 1968, although he exhibited it to Lay, Glenn and Thomas.

A seeming contradiction is the conviction of all four defendants of possession of the bombs on May 16, 1968, especially the conviction of Glenn who was not even present in Thomas' apartment on that date. However, the trial testimony disclosed that Lay, who made the two bombs, passed them around, that they were handled by Thomas and Marks and were...