People v. Lubow
| Decision Date | 06 July 1971 |
| Citation | 29 N.Y.2d 58,323 N.Y.S.2d 829 |
| Parties | , 272 N.E.2d 331 The PEOPLE of the State of New York, Respondent, v. Samuel LUBOW and Oscar Gissinger, Appellants. |
| Court | New York Court of Appeals Court of Appeals |
Ira Richard Ressler, New York City, for Samuel Lubow, appellant.
Sheldon Fried, New York City, for Oscar Gissinger, appellant.
Frank S. Hogan, Dist. Atty. (Lewis R. Friedman, and Michael R. Juviler, New York City, of counsel), for respondent.
The revised Penal Law creates a new kind of offense, simpler in structure than an attempt or a conspiracy, and resting solely on communication without need for any resulting action (art. 100, Criminal Solicitation, part of tit. G, Anticipatory Offenses, L.1965, ch. 1030) Consol.Laws, c. 40. Attempts to commit crimes and conspiracies are continued with some changes as crimes and these, too, are grouped within title G as 'Anticipatory Offenses' (art. 105, Conspiracies; art. 110, Attempts).
The basic statutory definition of criminal solicitation is that with intent that another person shall 'engage in conduct constituting a crime' the accused 'solicits, requests, commands, importunes or otherwise attempts to cause such other person to engage in such conduct'. This basic definitory language is continued through three grades of solicitation, the gravity depending on what crime the conduct sought to be induced would effectuate.
If the conduct would be 'a crime' it is criminal solicitation in the third degree, a 'violation' ( § 100.00); if the conduct would be 'a felony' it is criminal solicitation in the second degree, a class A misdemeanor ( § 100.05); and if the conduct would be murder or kidnapping in the first degree it is criminal solicitation in the first degree, a class D felony ( § 100.10).
As it has been noted, nothing need be done under the statute in furtherance of the communication ('solicits, commands, importunes') to constitute the offense. The communication itself with intent the other person engage in the unlawful conduct is enough. It needs no corroboration.
And an attempt at communication which fails to reach the other person may also constitute the offense for the concluding clause 'or otherwise attempts to cause such other person to engage in such conduct' would seem literally to embrace as an attempt an undelivered letter or message initiated with the necessary intent.
Appellants have been convicted after a trial by a three-Judge panel in the Criminal Court of the City of New York of violation of section 100.05 which describes solicitation to commit a felony. The information on which the prosecution is based is made by complainant Max Silverman. It describes the charge as criminal solicitation and states that 'defendants attempted to cause deponent to commit the crime of grand larceny' in that they 'attempted to induce the deponent to obtain precious stones on partial credit with a view towards appropriating the property to their own use and not paying the creditors, said conduct constituting the crime of larceny by false promise'.
Although the Penal Law section number is not stated in the information, it was clearly stated in court before the opening of the trial that the charge was a violation of section 100.05 and the facts alleged that the inducement was to commit grand larceny, a felony, which gave adequate notice of the nature of the offense involved.
The proof in support of the charge, if factually accepted by the trial court, as it was by a majority of the Judges (one dissenting), was sufficient to warrant conviction. The Appellate Term affirmed unanimously.
The evidence showed that complainant Silverman and both defendants were engaged in the jewelry business. It could be found that defendant Lubow owed Silverman $30,000 for diamonds on notes which were unpaid; that Lubow had told Silverman he was associated with a big operator interested in buying diamonds and introduced him to defendant Gissinger.
It could also be found that in October, 1967, Silverman met the two defendants together at their office, demanded his money, and said that because of the amount owed him he was being forced into bankruptcy.
Silverman testified in response to this Lubow said 'Well, let's make it a big one, a big bankruptcy', and Gissinger said this was a good idea. When Silverman asked 'how it is done' he testified that Lubow, with Gissinger participating, outlined a method by which diamonds would be purchased partly on credit, sold for less than cost, with the proceeds pyramided to boost Silverman's credit rating until very substantial amounts came in, when there was to be a bankruptcy with Silverman explaining that he had lost the cash gambling in Puerto Rico and Las Vegas. The cash would be divided among the three men. The gambling explanation for the disappearance of cash would be made to seem believable by producing credit cards for Puerto Rico and Las Vegas. Silverman testified that Lubow said 'we would eventually wind up with a quarter of a million dollars each' and that Gissinger said 'maybe millions'.
Silverman reported this proposal to the District Attorney in October, 1967 and the following month a police detective equipped Silverman with a tape recorder concealed on his person which was in operation during conversations with defendants on November 16 and which tends to substantiate the charge. The reel was received in evidence on concession that it was taken from the machine Silverman wore November 16.
A police detective testified as an expert that a 'bust out operation' is a 'pyramiding of credit by rapid purchasing of merchandise, and the rapid selling of the same merchandise sometimes 10 and 20 per cent the cost of the merchandise itself, and they keep selling and buying until they establish such a credit rating that they are able to purchase a large order at the end of their operation, and at this time they go into bankruptcy or they just leave'.
There thus seems sufficient evidence in the record to find that defendants intended Silverman to engage in conduct constituting a felony by defrauding creditors of amounts making out grand larceny and that they importuned Silverman to engage in such conduct. Thus the proof meets the actual terms of the statute.
The statute itself is a valid exercise of legislative power. Commentators closely associated with the drafting of the Model Penal Code of the American Law Institute, from which the New York solicitation statute stems, have observed: 1
Solicitation to commit a felony was a misdemeanor at common law (People v. Bush, 4 Hill 133, 135; Rex v. Higgins, 2 East 5). Summarizing this historical fact Judge Cardozo observed: 'So at common law, incitement to a felony, when it did not reach the stage of an attempt, was itself a separate crime, and like conspiracy, which it resembled, was a misdemeanor, not a felony' (People v. Werblow, 241 N.Y. 55, 66, 148 N.E. 786, 791, citing Higgins and Rex v. Gregory, L.R. 1 C.C.R. 77).
But as People v. Bush demonstrates, the solicitation in early New York cases was treated as closely related to an attempt. There defendant asked another to burn a barn and gave him a match for that purpose. This principle was followed to some extent (e.g., People v. Bloom, 149 App.Div. 295, 296--299, 133 N.Y.S. 708, 709--711) but there were fundamental difficulties with it under the concept of attempt and it seems not to have been followed after Bloom.
Although this Penal Law provision is the first statutory enactment in New York, there have been statutes aimed at criminal solicitation in some other States, notably California.
In commenting on the criminal solicitation enactment of article 100, two lawyers who were active in the work of the State Commission on Revision of the Penal Law and Criminal Code which prepared the present statute observed that article 100 'closes that gap' for those who believe, as apparently the commission and the American Law Institute did, that 'solicitation to commit a crime involves sufficient culpability to warrant criminal sanctions'. 2
There are, however, potential difficulties inherent in this penal provision which should be looked at, even though all of them are not decisive in this present case. One, of course, is the absence of any need for corroboration. The tape recording here tends to give some independent support to the testimony of Silverman, but there are types of criminal conduct which might be solicited where there would be a heavy thrust placed on the credibility of a single witness testifying to a conversation. Extraordinary care might be required in deciding when to prosecute; in determining the truth; and in appellate review of the factual decision.
One example would be the suggestion of one person to another that he commit a sexual offense; another is the suggestion that he commit perjury. The Model Penal Code did not require corroboration; but aside from the need for corroboration which is traditional in some sexual offenses, there are dangers in the misinterpretation of innuendos or remarks which could be taken as invitations to commit sexual offenses. These are discussed by Wechsler-Jones-Korn (61 Col.L.Rev., p. 623, Supra) with the comment that 'it is a risk implicit in the punishment of almost all inchoate crimes'.
In two opinions for the California Supreme Court, Justice Traynor has analyzed that State's criminal solicitations statute (Penal Code, § 653f; Benson v. Superior Ct. of Los Angeles County, 57 Cal.2d 240, 18 Cal.Rptr. 516, 368 P.2d 116 (1962), and People v. Burt, 45 Cal.2d 311, 288...
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People v. Ryan
...that independent third parties can listen to it and produce a reasonable transcript" (People v. Mincey, supra; People v. Lubow, 29 N.Y.2d 58, 68, 323 N.Y.S.2d 829, 272 N.E.2d 331). The question of whether a tape recording should be admitted into evidence is within the discretion of the tria......
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...which is sufficiently specific to focus attention upon the particular issue sought to be raised on appeal. In People v. Lubow, 29 N.Y.2d 58, 68, 323 N.Y.S.2d 829, 272 N.E.2d 331, for example, the Court of Appeals refused to consider, inter alia, a defendant's claim that there had been no pr......
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