People v. Schwimmer

• Decision Date: 29 December 1978
• Citation: 411 N.Y.S.2d 922,66 A.D.2d 91
• Parties: The PEOPLE, etc., Appellant, v. Leon SCHWIMMER, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 922

411 N.Y.S.2d 922

66 A.D.2d 91

The PEOPLE, etc., Appellant, v. Leon SCHWIMMER, Respondent.

Supreme Court, Appellate Division, Second Department.

Dec. 29, 1978.

Eugene Gold, Dist. Atty., Brooklyn (Lionel Rene Saporta, Brooklyn, of counsel), for appellant.

Paikin & Lurie, P. C., New York City (Sanford S. Lurie, New York City, of counsel), for respondent.

Before LATHAM, J. P., and DAMIANI, TITONE and RABIN, JJ.

RABIN, Justice.

The appeal, as limited by the People's brief, is from so much of an order of the Supreme Court, Kings County, entered February 22, 1978, as dismissed the first and second counts of the indictment, charging defendant with conspiracy in the second and third degrees, respectively.

The issue on appeal is whether the defendant may be convicted of conspiracy when all the other members of the alleged conspiracy have feigned agreement and never intended to perform the object crime. Criminal Term concluded that when agreement "is simulated and without an intent to perform, there is no concerted activity upon which a charge of criminal conspiracy can be founded" and, accordingly, dismissed the conspiracy counts of the indictment. We interpret article 105 of the Penal Law as authorizing a conspiracy prosecution of a particular defendant regardless of the culpability of the other coconspirators. Therefore, that part of the order which dismissed the conspiracy counts should be reversed.

On October 26, 1977 the defendant was arrested for his involvement in a conspiracy to steal diamonds owned by the City of New York and valued at more than $1,500. The defendant was subsequently indicted for (1) conspiracy in the second degree, (2) conspiracy in the third degree, (3) attempted criminal possession of stolen property in the first degree and (4) criminal solicitation in the second degree (two counts).

The first conspiracy count alleges that the defendant, "with the intent that conduct constituting * * * robbery in the second degree be performed, agreed with Joseph Coll and Ernest Colellie, to engage in and cause the performance of such conduct." The count then recites two overt acts allegedly performed by the defendant in furtherance of committing the substantive crime.

The second conspiracy count alleges that the defendant "with the intent that conduct constituting * * * criminal possession of stolen property in the first degree be performed, agreed with Joseph Coll and Ernest Colellie, to engage in and cause the performance of such conduct." This count recites the same overt acts as were charged in the first conspiracy count.

Joseph Coll is an undercover New York City police officer and Ernest Colellie is a confidential police informant. Neither Coll or Colellie had any intention of committing the underlying substantive crimes. Instead, they merely feigned agreement for law enforcement purposes.

As part of an omnibus motion, the defendant sought the dismissal of the two conspiracy counts. The defendant essentially argued that neither Coll nor Colellie ever intended to commit the underlying substantive crimes; that absent a mutual intent there can be no criminal meeting of the minds; and that therefore, there can be no conspiratorial agreement. As noted, Criminal Term accepted this position. We do not.

Prior to the revision of the Penal Law (L.1965, ch. 1030), there is no doubt that the defendant would have prevailed in his contentions. At that time, conspiracy was simply and traditionally defined as a combination of two or more persons to commit an illegal act (former Penal Law, §§ 580, 580-a). Essential to the traditional formulation of conspiracy was the participation of at least two persons who shared the prescribed Mens rea and joined together to commit the substantive offense. Pursuant to that formulation, if a defendant's sole coconspirator had been acquitted then, as a matter of law, the defendant must also have been acquitted. Under this doctrine, it would be impossible for the instant defendant to be guilty of conspiracy because he combined with no other person who shared his criminal intent. Thus, the defendant merely acted alone and this cannot constitute conspiracy because "(i)t is impossible in the nature of things for a man to conspire with himself" (see Morrison v. California, 291 U.S. 82, 92, 54 S.Ct. 281, 285, 78 L.Ed. 664).

The traditional doctrine has been characterized as the "bilateral approach" because of its dependence on the existence of at least two conspirators in determining the guilt of any single conspirator. However, in the last two decades, a new approach has been suggested which focuses solely upon the particular defendant, regardless of the culpability of the coconspirators. This "unilateral approach" is exemplified by the Model Penal Code (10 Uniform Laws Ann., §§ 5.03, 5.04).

The basic elements of conspiracy are the same under either formulation, but by "concentrating on individual, rather than group, liability, the guilt of a particular actor is made independent of that of his co-conspirator(s). Such treatment is important when, for example, defendant's only co-conspirator (a) is legally irresponsible or immune or incapable of committing a particular offense, (b) has feigned agreement, usually as part of some law enforcement scheme, or (c) is unknown, unapprehended, unindicted, unconvicted, or acquitted. A unilateral definition of conspiracy means that none of these circumstances will preclude defendant's conviction where the evidence is otherwise sufficient" (Conspiracy: Statutory Reform Since Model Penal Code, 75 Col.L.Rev. 1122, 1136-1137).

The instant appeal involves situation (b) above, i. e., the other participants have feigned agreement. Dispositive of whether the conspiracy indictment may be sustained is whether the New York Revised Penal Law (Penal Law, art. 105), has retained the bilateral approach or whether the unilateral approach has been adopted. The question has not previously been directly confronted by a New York appellate court. It is noted that some appellate decisions (see, e. g., People v. Mackell, 47 A.D.2d 209, 366 N.Y.S.2d 173, affd. 40 N.Y.2d 59, 386 N.Y.S.2d 37, 351 N.E.2d 684) contain bilateral characterizations of conspiracy. However, those cases do not deal with the precise issue here raised. While several trial courts have thoroughly and analytically considered the issue, they have reached disparate outcomes. People v. Lanni (95 Misc.2d 4, 406 N.Y.S.2d 1011) exemplifies those decisions which conclude that New York has adopted the unilateral approach and have accordingly upheld conspiracy indictments, whereas People v. Hanley (92 Misc.2d 465, 468, 400 N.Y.S.2d 319, 322) typifies those cases which conclude that there has been no departure from the rule that "there must be a corrupt agreement between two or more individuals each possessing the prescribed Mens rea ". Our review of the criminal character of conspiracy, and analysis of the applicable New York statutes, especially as they compare to the Model Penal Code, leads to the conclusion that New York has adopted the unilateral approach.

The crime of conspiracy is as ancient as the common law, yet "(t)he modern crime of conspiracy is so vague that it almost defies definition" (Krulewitch v. United States, 336 U.S. 440, 446, 69 S.Ct. 716, 720, 93 L.Ed. 790). Central to the crime of conspiracy is the agreement to commit some other, substantive crime. More fundamentally, the basis of conspiratorial liability is not to punish the agreement per se, but rather, like other inchoate crimes, to punish the firm purpose to commit a substantive crime, while hopefully preventing the actual commission thereof. Although constituted by agreement, the crime of conspiracy is directed at the intended result of the agreement. As noted by Mr. Justice OLIVER WENDELL HOLMES in United States v. Kissel (218 U.S. 601, 607, 31 S.Ct. 124, 125, 54 L.Ed. 1168): "It is true that the unlawful agreement satisfies the definition of the crime, but it does not exhaust it."

The most pervasive aspect of conspiracy is its status as an inchoate crime. Like attempt and solicitation, conspiracy is directed at conduct which is preparatory to the commission of a substantive offense. However, liability for conspiracy attaches at a much earlier stage than does liability for attempt or solicitation. Consequently, particular caution is required in establishing liability for conspiracy.

An essential element of every conviction for conspiracy in New York, regardless of degree, is that a person with intent to commit a substantive crime, agrees with another to commit such crime (see Penal Law, art. 105). In the context of the early stage of attaching criminal liability, the element of agreement is required to identify the manifestation of the firm criminal purpose to commit a substantive crime. Thus, the "act" of agreeing is concrete and unambiguous as an expression of each actor's intent to violate the law. Like other inchoate crimes, the Raison d'etre of conspiracy is the underlying substantive crime. Thus, the agreement itself must be to "engage in or cause the performance" of a substantive crime. Furthermore, the statutory grading system makes the degree of conspiratorial liability contingent upon the grade of the substantive crime sought to be committed. From this perspective, the Mens rea of conspiracy is to agree with one or more persons to perform a substantive criminal act. The fact of agreement serves only to unequivocally establish a particular actor's intent to commit the object crime by acting with others.

The identity and degree of participation by the other persons is wholly irrelevant. Also irrelevant are the fineties of contract law concerning when an agreement is consummated (e. g., meeting of the minds). It is the individual who is prosecuted and necessarily it is the individual who must have the prescribed Mens rea. The requisite intent is to join with others to commit a substantive...