People v. Menache

Decision Date30 December 1983
Citation470 N.Y.S.2d 171,98 A.D.2d 335
PartiesThe PEOPLE, etc., Appellant, v. Moises MENACHE, Respondent.
CourtNew York Supreme Court — Appellate Division

Carl A. Vergari, Dist. Atty., White Plains (Richard E. Weill, Gerald D. Reilly and Anthony J. Servino, White Plains, of counsel), for appellant.

Candee & Hilpert, Buchanan (Richard S. Candee, Buchanan, of counsel), for respondent.

Before DAMIANI, J.P., and TITONE, WEINSTEIN and BRACKEN, JJ.

TITONE, Justice.

The question before us is whether a telephonic conversation may constitute an overt act in furtherance of a conspiracy. We conclude that it may when the conversation is an act independent of the agreement itself and tends to carry out the object of the conspiracy. Because these criteria are lacking here, we affirm the order of dismissal, 110 Misc.2d 987, 443 N.Y.S.2d 204.

Defendant, Moises Menache, a physician, was indicted for conspiracy in the sixth degree (Penal Law, § 105.00). It is alleged that he agreed with three other individuals to influence certain unnamed employees of a medical college to accept his son for admission as a student. In pursuit of the scheme, defendant allegedly paid the sum of $5,000 to one of the coconspirators who, in turn, was supposed to pass this money to the employees at the medical college.

An indictment charging conspiracy is jurisdictionally defective unless it is alleged that an overt act was committed within the Statute of Limitations (Grunewald v. United States, 353 U.S. 391, 396-397, 77 S.Ct. 963, 969-970, 1 L.Ed.2d 931; People v. Hines, 284 N.Y. 93, 112-114, 29 N.E.2d 483). Since conspiracy in the sixth degree is a class B misdemeanor (Penal Law, § 105.00) the applicable Statute of Limitations is two years (CPL 30.10, subd. [2], par. c).

The indictment before us sets forth five overt acts, the first four of which are clearly outside the two-year limitations period. Our concern is only with the fifth overt act which charges that "[o]n or about and between January 1, 1979 and August 1, 1979, the defendant communicated by telephone with [a named coconspirator] concerning the progress of [the coconspirator's] efforts to secure the admission of the defendant's son into the * * * [m]edical [c]ollege".

The County Court granted defendant's motion to dismiss the indictment. 1 We now affirm.

To place the issue before us in proper focus, it should be noted that at common law the gist of the offense of conspiracy was the unlawful combination or agreement. No overt act was necessary to complete the crime (see People v. Sheldon, 139 N.Y. 251, 265, 34 N.E. 785; Clark & Marshall, The Law of Crimes [7th ed.], § 9.00, pp. 550-551). While this remains the rule in some states, New York, as well as the Federal government and several sister states, have added an overt act requirement by statute (Penal Law, § 105.20; Clark & Marshall, op. cit., pp. 552-553; LaFave & Scott, Criminal Law, § 62, pp. 476-477).

As observed by the Supreme Court, "[t]he function of the overt act in a conspiracy prosecution is simply to manifest 'that the conspiracy is at work,' * * * and is neither a project still resting solely in the minds of the conspirators nor a fully completed operation no longer in existence" (Yates v. United States, 354 U.S. 298, 334, 77 S.Ct. 1064, 1084, 1 L.Ed.2d 1356). New York law appears to be in accord (see People v. McGee, 49 N.Y.2d 48, 58, 424 N.Y.S.2d 157, 399 N.E.2d 1177; People v. Hines, 284 N.Y. 93, 29 N.E.2d 483,supra; People v. Tavormina, 257 N.Y. 84, 93, 177 N.E. 317; People v. Sheldon, 139 N.Y. 251, 34 N.E. 785, supra ). An overt act, therefore, may be committed by any one of the conspirators and, while it need not be unlawful in and of itself, it must be a step towards the execution of the conspiracy and not simply a part of the agreement (People v. McGee, supra, 49 N.Y.2d p. 57, 424 N.Y.S.2d 157, 399 N.E.2d 1177; People v. Sheldon, supra, 139 N.Y. pp. 265-266, 34 N.E. 785; People ex rel. Conte v. Flood, 53 Misc.2d 109, 277 N.Y.S.2d 697; People v. De Cabia, 10 Misc.2d 923, 924, 172 N.Y.S.2d 1004, affd. 8 A.D.2d 825, 190 N.Y.S.2d 142, affd. 7 N.Y.2d 823, 196 N.Y.S.2d 701, 164 N.E.2d 720; cf.People v. Russo, 57 A.D.2d 578, 393 N.Y.S.2d 435, mot. for lv. to app.den. 42 N.Y.2d 979, 398 N.Y.S.2d 1040, 367 N.E.2d 875).

Insofar as some cases might be read as suggesting that the overt act must be the commencement of the criminal act, or an element of the offense which is the object of the conspiracy (see, e.g., People v. Bauer, 32 A.D.2d 463, 305 N.Y.S.2d 42, affd. 26 N.Y.2d 915, 310 N.Y.S.2d 101, 258 N.E.2d 399), we agree with LaFave and Scott that they "are incorrect for they are inconsistent with the function of the overt act requirement * * * If the agreement has been established but the object has not been attained, virtually any act will satisfy the overt act requirement" (LaFave & Scott, op. cit., pp. 477-478; see People v Sheldon, 139 N.Y. 251, 266, 34 N.E. 785, supra ). 2

It is thus too much of a generalization to state, in a conclusory fashion, that "mere talk", without more, can never constitute an overt act in furtherance of a conspiracy. The more apt question is the content and the context of the conversation (see People v. Sher, 68 Misc.2d 917, 925-926, 329 N.Y.S.2d 2; cf. People v. Ozarowski, 38 N.Y.2d 481, 488, 381 N.Y.S.2d 438, 344 N.E.2d 870; People v. Lakomec, 86 A.D.2d 77, 78-80, 449 N.Y.S.2d 71; People v. Teeter, 86 Misc.2d 532, 535, 382 N.Y.S.2d 938, affd. 62 A.D.2d 1158, 404 N.Y.S.2d 210, affd. 47 N.Y.2d 1002, 420 N.Y.S.2d 217, 394 N.E.2d 286).

We have no doubt, for example, that a telephonic conversation in which the implements of the crime are ordered would constitute an overt act in furtherance of a conspiracy (see United States v. Strickland, 493 F.2d 182, 187 (5th Cir.1974), cert.dsmd. 419 U.S. 801, 95 S.Ct. 9, 42 L.Ed.2d 32). But other communications may not be that clear cut. Conversation among conspirators may merely be cementing the agreement itself (cf People v. Russo, 57 A.D.2d 578, 393 N.Y.S.2d 435, supra; People v. Wolff, 24 A.D.2d 828, 264 N.Y.S.2d 40) or may be an overt act in furtherance of the agreement (see People v. Sher, supra, 68 Misc.2d pp. 925-926, 329 N.Y.S.2d 2; LaFave & Scott, op. cit., p. 478). And, conversation which attempts to enlist others may or may not constitute an overt act in furtherance of the conspiracy (cf People ex rel. Conte v. Flood, 53 Misc.2d 109, 110, 277 N.Y.S.2d 697, supra ). "The object of the statute [requiring proof of an overt act] is accomplished when it is shown that the parties have proceeded to act upon the unlawful agreement (People v. Sheldon, 139 N.Y. 251 )" (People v. De Cabia, 10 Misc.2d 923, 924, 172 N.Y.S.2d 1004, supra ).

The telephonic communications in this case, however, as alleged by the People, simply involve conversations between two coconspirators. Neither singly nor in combination do they constitute sufficiently independent acts "as would tend to flow from the unlawful agreement and tend to carry out the object of the conspiracy" (People v. De Cabia, supra, 10 Misc.2d p. 924, 172 N.Y.S.2d 1004). Consequently, they do not satisfy the overt act requirement.

For the reasons stated, the order of the County Court should be affirmed.

Order of the County Court, Westchester County, dated October 1, 1981, affirmed.

DAMIANI, J.P., and WEINSTEIN and BRACKEN, JJ., concur in the opinion...

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