People v. Ortiz

• Decision Date: 06 March 1984
• Citation: 100 A.D.2d 6,473 N.Y.S.2d 288
• Parties: PEOPLE of the State of New York, Respondent, v. Regina ORTIZ, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 288

473 N.Y.S.2d 288

100 A.D.2d 6

PEOPLE of the State of New York, Respondent, v. Regina ORTIZ, Appellant.

Supreme Court, Appellate Division,

Fourth Department.

March 6, 1984.

Edward J. Nowak, Public Defender, Rochester (Peter Braun, Buffalo, of counsel), for appellant.

Howard R. Relin, Dist. Atty., Rochester (Melvin Bressler, Rochester, of counsel), for respondent.

Before DOERR, J.P., and BOOMER, GREEN, O'DONNELL and SCHNEPP, JJ.

BOOMER, Judge.

Defendant was convicted of conspiracy in the sixth degree for hiring others who agreed to use physical force to collect a debt. On appeal she claims that the court erroneously denied her request to charge that payment of $50 to one of the co-conspirators could not be considered as an overt act if it was made to cement the conspiracy or to secure the participation of a person in the agreement. We conclude that, under the facts of this case, the court was correct in refusing to charge as requested.

The record shows that defendant contacted Lang, a private investigator, to engage his services to collect $800 from one Zugehoer, which amount Zugehoer owed to defendant as the result of a drug transaction. Lang became suspicious and reported the matter to the police. At the direction of the police, Lang and an undercover officer, Kilborn, met with defendant. At the meeting defendant told Lang she wanted to collect the money and she wanted Zugehoer and his wife "slapped around" but not killed. Lang agreed to collect the money for a fee of $50 and a handgun and defendant agreed to pay the fee plus a bonus of $100 if Zugehoer was "put in the hospital". Since Lang expressed concern about payment of his fee, defendant agreed to make a downpayment the following day. The following day defendant gave Kilborn $50 in cash.

An essential element of the crime of conspiracy is an "overt act * * * committed by one of the conspirators in furtherance of the conspiracy" (Penal Law, § 105.20). The overt act alleged in the indictment and relied upon by the prosecution was the payment of $50 to Kilborn. At trial, defendant requested the court to instruct the jury that "an overt act cannot be an act which merely cements the agreement or secures the participation of a person in the agreement". The court refused the request and charged instead that "an overt act is any step or conduct taken by one of the conspirators to achieve or carry forward the purpose or the objective of the conspiracy." Defendant claims that the court erred in refusing to charge as requested, citing People v. Hines, 168 Misc. 453, 6 N.Y.S.2d 2, affd. 258 App.Div. 466, 17 N.Y.S.2d 141, mod. 284 N.Y. 93, 29 N.E.2d 483; People v. De Cabia, 10 Misc.2d 923, 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; People v. Wolff, 24 A.D.2d 828, 264 N.Y.S.2d 40, and People v. Teeter, 86 Misc.2d 532, 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. The language in those cases lend support to defendant's claim.

In People v. Hines (supra), defendant moved to dismiss the indictment charging conspiracy on the ground that it did not sufficiently allege an overt act. The conspiracy charged was to contrive a lottery. The overt acts on the part of defendant alleged in the indictment were that he met with others and discussed plans to influence and bribe judicial officers and that at the same time one of the conspirators, Dutch Schultz, paid him $1,000 in cash. In ruling on the motion to dismiss the court stated, "The first 'overt act' is really a part of the conspiracy, looking toward action in the future, and is not properly an overt act. The receipt by Hines of a payment of $1,000 cash, although alleged as an overt act, is not such, but something done as a part of the agreement to cement the conspiracy" (168 Misc. 453, 457, 6 N.Y.S.2d 2, supra). Nevertheless, the court declined to dismiss the indictment, since the defendant could be held responsible for overt acts committed by other conspirators. After trial, the Court of Appeals reversed the conspiracy conviction (284 N.Y. 93, 29 N.E.2d 483, supra) on the ground that the action was barred by the statute of limitations since all of the overt acts alleged in the indictment were committed more than two years before the commencement of the action. The court indicated that evidence of payments of $1,000 a month to defendant within the two year period of limitations would not support the conviction since those payments were not alleged in the indictment.

The dictum of the trial court in People v. Hines (supra) was first discussed in People v. De Cabia, 10 Misc.2d 923, 925, 172 N.Y.S.2d 1004, supra. There, County Court ruled on a motion to dismiss a conspiracy indictment for failure to allege an overt act. The indictment stated that the defendants gave money to a co-conspirator for the purpose of bribing a public officer. This, the court held, was "an allegation of a subsequent, independent, overt act following an unlawful agreement." Distinguishing Hines, the court stated that Hines received the money "as a quid pro quo" and "as a part of the agreement to cement the conspiracy", while the money received by De Cabia was "for purposes of carrying out and furthering the unlawful agreement already entered into." Both the Appellate Division and the Court of Appeals affirmed without opinion.

The language in Hines was repeated in People v. Wolff, 24 A.D.2d 828, 264 N.Y.S.2d 40, supra, where our court wrote, "Payment of money to a co-conspirator to secure his agreement to the conspiracy is regarded as an act merely cementing the conspiracy and not as an overt act committed in furtherance thereof." The court held that the allegation in the indictment that a payment of money was made " 'for the purpose of securing the services of a person * * * to perform an illegal abortion' " sufficiently alleged an overt act. The court cited People v. De Cabia (supra) to the effect that "if the money is paid to a co-conspirator to be delivered to another in payment of the services constituting the principal crime, such payment is held to constitute an overt act".

In People v. Teeter, 86 Misc.2d 532, 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, supra, defendants Teeter and Kropman were charged with agreeing with one another and with undercover police officers to kill two intended victims. The alleged overt act was the delivery of money to one of the undercover officers as part payment for the murders. Citing People v. Wolff (supra), the trial court held that the indictment alleged "payment to a coconspirator, not to be paid to another for services but for the coconspirator and, therefore, would not constitute an overt act such as is required by law" (86 Misc.2d 532, 534, 382 N.Y.S.2d 938, supra). Following that reasoning, the court charged the jury that if the police officers intended to perform the agreement they were co-conspirators and payment to them would not be an overt act, but if the police officers did not intend to perform, they were not co-conspirators and payment to them would constitute an overt act. The Appellate Division, over a strong dissent, affirmed, stating that the charge was correct. The dissenting justices, citing People v. Wolff (supra), wrote that the issue of whether payment to the undercover officers was an overt act should turn not upon the presence or absence of criminal intent of the officers, but upon the intention of the defendants in making the payment. They concluded that the trial court committed reversible error in refusing to charge in accordance with People v. Wolff (supra) since "[t]here was evidence that the defendants also believed they were making the payments to [the officers] as a quid pro quo for their agreement and for the purpose of 'cementing the conspiracy' and not in furtherance thereof."

The Court of Appeals affirmed the conviction of Teeter, but reversed the conviction of her co-defendant, Kropman. The court adopted the unilateral theory of conspiracy stating that "a defendant may be...