People v. Menache

• Decision Date: 01 October 1981
• Citation: 443 N.Y.S.2d 204,110 Misc.2d 987
• Parties: The PEOPLE of the State of New York v. Moises MENACHE, Defendant.
• Court: New York County Court

Page 204

443 N.Y.S.2d 204

110 Misc.2d 987

The PEOPLE of the State of New York v. Moises MENACHE, Defendant.

County Court, Westchester County.

Oct. 1, 1981.

Carl A. Vergari, Dist. Atty., White Plains, for the People.

Hersh & Hersh, Peekskill, for defendant.

GERARD E. DELANEY, Judge.

By its order dated August 4, 1981 in this same matter the Court reserved decision on defendant's motion to dismiss the indictment pursuant to CPL § 210.30 and implicitly CPL § 210.20(1)(f). The Court has not received a further memorandum of law from the People and reviewed that portion of the Grand Jury presentment relating to the instant indictment.

Defendant has been indicted for the crime of Conspiracy in the Sixth Degree, in substance, that he is alleged to have conspired with a George Durr, Vincent Logozio and Ronald DiDonato to pay a fee of $5,000.00 to unnamed employees of the New York Medical College in order to have his son admitted to such school.

In his initial moving papers, defendant specifically attacked the sufficiency of the evidence before the Grand Jury on the basis that from the indictment's alleged overt acts in furtherance of that conspiracy, no overt acts occurred within the running of the two year statute of limitations for class (B) Misdemeanors, prior to the filing of the indictment on February 24, 1981 and thus implicitly also sought relief under CPL § 210.20(1)(f). He also attacked the indictment under CPL § 210.25 on the basis that it is defective within the meaning of CPL § 200.50(6) and (7). Under the same rationale this Court found the indictment superficially correct under CPL § 200.50, in that sufficient allegations of Conspiracy in the Sixth Degree and certain proper overt acts appeared on the face to be valid; however, the Court further stated that more was required in a Conspiracy charge to avoid jurisdictional defects by not effectively charging the defendant with the commission of a crime. Cf. People v. Iannone, 45 N.Y.2d 589, 594, 412 N.Y.S.2d 110, 384 N.E.2d 656. In order to convict on the charged Conspiracy, P.L. § 105.20 requires an "overt act (to be) alleged and proved to have been committed by one of the conspirators in furtherance of the conspiracy." (emphasis added) Failure to allege a sufficient overt act is a failure to allege the crime of conspiracy and is a jurisdictional defect. People v. Russo, 57 App.Div.2d 578, 579, 393 N.Y.S.2d 435 (Second Dept. 1977).

Set forth below are the five overt acts alleged by the People and the Court's prior rulings on each:

" '1. On or about and between December 1, 1978 and January 19, 1979, the defendant met with the said George Durr in the City of Peekskill and told the said George Durr that he, the defendant, would pay a sum of money to secure the admission of his son into the New York Medical College.'

A meeting to discuss plans is not an overt act done in furtherance of the conspiracy, but is only part of the agreement itself. People v. Hines, 284 N.Y. 93 People v. Russo, supra. This is not an overt act.

'2. On or about and between December 1, 1978 and January 15, 1979, George Durr and Vincent Logozio met with Donald DiDonato at the latters' office at the Westchester Medical Center located at Valhalla, New York, and discussed the payment of $5,000.00 to be paid to unnamed employees of the New York Medical College to secure the admission of the defendant's son to said college.'

This is not an overt act. See People v. Hines, and People v. Russo, supra.

'3. On or about and between January 1, 1979 and February 15, 1979, the defendant in the City of Peekskill gave George Durr $5,000.00 in United States Currency to be given to unnamed employees of the New York Medical College.'

It is clear that this allegation, if true, constituted an act 'for purposes of carrying out and furthering the unlawful agreement already entered into by all parties concerned,' People v. DeCabia, 10 Misc.2d 923, 925 aff'd. 8 App.Div.2d 825 aff'd. 7 N.Y.2d 823 accord People v. Teeter, 62 App.Div.2d 1158 aff'd. 47 N.Y.2d 1002 and is an overt act for purposes of this motion.

'4. On or about and between January 1, 1979 and February 15, 1979, George Durr and Vincent Logozio gave $5,000.00 in United States currency to Ronald DiDonato at his office at the Westchester County Medical Center to be paid to unnamed employees of the New York Medical College. Ronald DiDonato was then an employee of the County of Westchester and in the position of Associate Director of the Westchester County Medical Center.'

This alleges a sufficient overt act for purposes of this motion. Id.

'5. On or about and between January 1, 1979 and August 1, 1979, the defendant communicated by telephone with Ronald DiDonato concerning the progress of DiDonato's efforts to secure the admission of the defendant's son into the New York Medical College.'

This mere communication by telephone of defendant with one of his alleged co-conspirators did not constitute an overt act; People v. Russo; People v. Hines, supra, for purposes of this motion."

As was noted earlier, and made clear by defendant's motion, the problem occurs when the further observation is made that both overt acts Nos. 3 and 4 are alleged to have occurred "on or about and between January 1, 1979 and February 15, 1979." Both acts are alleged to have occurred more than two years prior to the filing of the indictment on February 24, 1981 and thus would appear to fall beyond the two year Statute of Limitations for the prosecution of Conspiracy in the Sixth Degree. CPL § 30.10(2)(c). Generally the Statute of Limitations runs from the date of the last overt act done pursuant to the conspiracy. Cf.Matter of Doyle, 257 N.Y. 244, 177 N.E. 489; Dennis v. U. S., 384 U.S. 855, 86 S.Ct. 1840, 16 L.Ed.2d 973; Brown v. Elliott, 225 U.S. 392, 32 S.Ct. 812, 56 L.Ed. 1136.

If it is assumed, arguendo, that the "overt act" No. 5, as designated by the People, is not a sufficient overt act for the jurisdictional question, then the first issue is whether or not the Statute of Limitations (CPL § 30.10(2)(c)--2 years) bars prosecution of the instant crime where the only legal overt acts (Peoples' Nos. 3 and 4) occurred over two years prior to the commencement of the criminal action. The resolution of such issue must, by necessity, rest on two major Court of Appeals cases: People v. Hines, 168 Misc. 453, 6 N.Y.S.2d 2, aff'd. on other grounds, 258 App.Div. 466, 17 N.Y.S.2d 141, mod. 284 N.Y. 93, 29 N.E.2d 483 and People v. Kohut, 30 N.Y.2d 183, 331 N.Y.S.2d 416, 282 N.E.2d 312, both such cases decided on factual and legal grounds which occurred prior to the enactment of the CPL which became effective in September 1971. See infra. There are several introductory steps which must be taken to appreciate both the law before the Hines and Kohut courts and the effect such had, and continue to have, on the recognition of the crime of Conspiracy as it has been recognized by the New York courts for over one hundred years.

"The offense of conspiracy was complete at common law on proof of the unlawful agreement. It was not necessary to allege or prove any overt act in pursuance of the agreement (3 Ch. Cur. Laws, 142; Reg. v. O'Connell, 11 CLK and FIN. 155). In this state this rule of common law was changed by the Revised Statutes; and, with certain exceptions, it was provided that no agreement should be deemed a conspiracy 'unless some act beside such agreement be done to effect the object thereof by one or more of the parties to such agreement' (2 Rev.St. 692 § 10); this principle was re-enacted in the Penal Code (§ 171) [The rule was carried forth in substance in the Penal Law § 105.20 (L. 1965, Ch. 1030, eff. Sept. 1, 1967)].

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The object of the statute was to require something more than a mere agreement to constitute a criminal conspiracy. There must be some act in pursuance thereof and done to effect its object before the crime is consumated. A mere agreement followed by no act, is insufficient ... The object of the statute is accomplished when it is shown that the parties have proceeded to act upon the agreement."

People v. Sheldon, 139 N.Y. 251, 265-266, 34 N.E. 785.

Thus, current P.L. § 105.20 is read into and becomes an element of each degree of conspiracy offense under Penal Law Article 105, People v. Hines, 284 N.Y. 93, 29 N.E.2d 483; compare People v. Fauntleroy, 94 Misc.2d 606, 608-611, 405 N.Y.S.2d 931, rev. on other grounds, 74 A.D.2d 612, 424 N.Y.S.2d 736, (on the operation of P.L. 130.05(3)(a) and the "element" of consent or lack thereof, in crimes of "statutory rape").

It is not sufficient, then, for the People to allege merely the elements constituting the illegal combination of the classic common law conspiracy. New York has long required the additional "element" of the overt act. See supra. "Thus, if an individual has the requisite mens rea and does ... agree with others and commits an overt act in furtherance of performing the substantive crime, then there is no persuasive reason why that individual should escape criminal sanction." People v. Schwimmer, 66 App.Div.2d 91, 96, 411 N.Y.S.2d 922, aff'd. 47 N.Y.2d 1004, 420 N.Y.S.2d 218, 394 N.E.2d 288.

"Those who believe that proof of the overt act should be required rest their case upon the traditional doctrine that a mere evil state of mind is not punishable; that additional proof should be required to establish that the conspiracy is 'at work' and not a project resting solely in the minds of the conspirators; that the danger that equivocal conduct may be found criminal is thus minimized."

Sobel, The Anticipatory Offenses in the New Penal Law, 32 Brooklyn L.Rev. 257, 264 (1966)

It is noted and emphasized by this Court that the allegations of the instant indictment, if proven at trial, show reprehensible conduct on the part of defendant worthy of criminal sanction. That one would conspire to bribe educational officials for the purpose of gaining admission to a medical school of an...