People v. Spencer

• Decision Date: 11 June 1971
• Citation: 322 N.Y.S.2d 266,66 Misc.2d 658
• Parties: The PEOPLE of the State of New York, Plaintiff, v. Willie SPENCER, Defendant.
• Court: New York City Court

Page 266

322 N.Y.S.2d 266

66 Misc.2d 658

The PEOPLE of the State of New York, Plaintiff, v. Willie SPENCER, Defendant.

Criminal Court of the City of New York, Queens County.

June 11, 1971.

Thomas Mackell, Dist. Atty. Queens County, Joseph Joch, Jr., Asst. Dist. Atty., of counsel, for the People.

Richard O. Tolchin, for defendant.

OPINION

M. MARVIN BERGER, Judge:

At a preliminary hearing, held before this Court, the defendant was charged with the felony of attempted sodomy and endangering the welfare of a minor, a misdemeanor.

The charges, contained in the affidavit of the mother of an 8-year old boy, state that the defendant, seated in an automobile, called the child to the car and offered him money to commit an act of sodomy. The boy rejected the offer and reported the incident to his mother the same day.

At the preliminary hearing, the sworn testimony of the arresting officer supported some details of the boy's unsworn account.

The child's evidence, both in chief and under cross-examination, made it clear that the defendant remained in his automobile, drove past the child without stopping or changing the direction of the vehicle, that he kept his hands on the steering wheel and did not expose himself.

The threshold question is whether a verbal solicitation to commit a crime constitutes an attempt to commit the crime.

Section 110 of the Penal Law defines an attempt as follows:

'A person is guilty of an attempt to commit a crime when, with intent to commit a crime, he engages in conduct which tends to effect the commission of such crime. * * *'

It derives from Section 2 of the old Penal Law which defined an attempt as 'an act done, with intent to commit a crime, and tending but failing to effect its commission.'

According to the annotations in the McKinney's Edition of the Penal Law (Vol. 39, p. 180), the attempt had to proceed beyond mere preparation and approach consummation of the forbidden act.

The People assert that the defendant, by slowing down his vehicle to keep pace with the infant's gait and by offering him money to commit fellatio on him, engaged in a direct effort to commit sodomy. By focusing his solicitation on a specific person, the defendant had progressed from preparation--the search for a likely victim of his advances--to an attempt.

People v. Ditchik, 288 N.Y. 95, 96, 41 N.E.2d 905 (1942), frequently cited in decisions dealing with attempts, states:

'Acts in furtherance of a criminal project do not reach the stage of an attempt, unless they carry the project forward within dangerous proximity to the criminal end to be attained. (People v. Werblow, 241 N.Y. 55, 61, 62, 148 N.E. 786, 789; People v. Collins, 234 N.Y. 355, 359, 360, 137 N.E. 753).'

Other cases, principally People v. Rizzo, 246 N.Y. 334, 158 N.E. 888 (1927), make it clear that the purpose or intent must be linked to an overt act tending to the commission of the crime albeit not 'the last proximate one for the completion of the offense.' (People v. Sullivan, 173 N.Y. 122, 134, 65 N.E. 989, 992 (1903)).

In short, in the words of the Official Draft of the Model Penal Code (Sec. 5.01) the 'substantial step in a course of conduct planned to culminate in * * * commission of a crime' must be '* * * strongly corroborative of the actor's criminal purpose.'

The court's inquiry must then focus on whether verbal solicitation of another to engage in criminal conduct is an attempt to commit a crime.

In the absence of any reported New York case on this point, we must rely on other sources.

The general proposition stated in 21 Am.Jur.2d § 113, is as follows:

'Though solicitation may constitute an element in some attempts, the usual view seems to be that soliciting another to commit a crime is not, by itself, sufficient to constitute an attempt to commit that crime. This has been explained on the ground that the offenses of solicitation and attempt are analytically distinct in their elements, and that there is no overt act, since solicitation is in the nature of preparation rather than perpetration. Some cases however take the view that even though a solicitation to commit a misdemeanor does not constitute an attempt to commit the misdemeanor, a solicitation to commit a felony may be punished as an attempt.'

The majority view is set forth in Gervin v. State, 212 Tenn. 653, 656--657, 371 S.W.2d 449, 450--451 (1963) as follows:

'The weight of American authority holds, as a general proposition, that mere criminal solicitation of another to commit a crime does not constitute an attempt. 1 Wharton, Criminal Law and Procedure, Sec. 81 at 168 (1957); 1 Burdick, Law of Crime, Sec. 106 at 117 (1946); Perkins, Criminal Law, 505, 508 (1957); Clark & Marshall, Crimes, Sec. 4.05 at 200 (6th ed. 1958); Model Penal Code, Sec. 5.02 comment at 86 (Tent. Draft No. 10, 1960); 14 Am.Jur. Criminal Law, Sec. 66 at 814 (1938) and 22 C.J.S. Criminal Law § 73 at p. 225 (1961). The one significant exception to this position is, Bishop Criminal Law, Secs. 767, 768 at 543--546 (9th ed. 1923).'

To the same effect is State v. Blechman, 135 N.J.L. 99, 101--102, 50 A.2d 152, 154 (1946) in which the court states:

'The solicitation constitutes a substantive crime in itself, and not an abortive attempt to perpetrate the crime solicited. It falls short of an attempt, in the legal sense, to commit the offense solicited.'

In the area of what the Penal Law collectively describes as 'Sex Offenses' (Art. 130), there appears to be no New York precedent spelling out the distinction between solicitation and attempt.

In the article dealing with adultery, in 2 Am.Jur.2d 966, the following is stated:

'The weight of authority also is that solicitation is not an overt act leading up to the commission of the crime and accordingly solicitation to commit adultery is not an attempt to commit the offense and is not indictable as such.'

In State v. Butler, 8 Wash. 194, 195, 35 P. 1093 (1894), the Supreme Court of Washington reviewed a conviction for attempted adultery based on defendant's efforts 'by means of promises of the payment of money, and by direct invitation by word of mouth * * * to persuade and procure' the complainant, a married woman, to have sexual intercourse with the defendant.

In writing the unanimous opinion of the Court, sustaining the granting of defendant's motion in arrest of judgment, Scott, J. said:

'Now, it seems to us that solicitation to commit adultery is no part of the act of adultery itself, and consequently cannot be held to be an attempt. What is it? It involves the expression of a desire and a willingness on the part of one person to commit the act of adultery with another, and an attempt to get that person's consent, but no more.'

And in another early case, Smith v. Commonwealth, 54 Pa. 209, 213, 214, 93 Am.Dec. 686 (1867), the Supreme Court of Pennsylvania said:

'* * * a rule of law which should make mere solicitation to fornication or adultery indictable would be an impractical rule--one that in the present usages and manners of society would lead to great abuses and oppressions * * *. In a high moral sense, it may be true that solicitation is an attempt, but in a legal sense it is not.'

To the same effect is Cole v. State, 14 Okl.Cr. 18, 166 P. 1115 (1917). See also, State v. Bowles, 70 Kan. 821, 79 P. 726 (1905).

Very close to the fact situation in the instant case is State v. Harney, 101 Mo. 470, 14 S.W. 657 (1890) in which the defendant on a public street asked a girl under 12 years of age to accompany him to a wooden shed to engage in sexual intercourse. The state appealed from a judgment quashing the defendant's indictment on a charge of attempted rape. (The Missouri statute defined sexual intercourse with a female child under 12 as rape.) Likewise, the statutes provided that 'every person who shall attempt to commit an offense prohibited by law, and in such attempt shall do any act towards the commission of such offense, but shall fail in the perpetration thereof, shall be punished.'

Brace, J., for a unanimous Supreme Court wrote in Harney, supra (p. 472, 14 S.W. p. 657):

'The only charge that can be evolved from the verbose reiterations of this indictment is that the defendant, by verbal solicitations, tried to obtain the consent of a child under the age of 12 years to have sexual intercourse with him and failed. However despicable and deserving of punishment such conduct may be, it falls short of the criminal offense attempted to be charged, to constitute which there must be an actual attempt to have intercourse with such child. So long as the evil purpose dwells in contemplation only, it is beyond the grasp of these provisions of the law. The indictment, failing to charge any actual attempt upon the part of the defendant to have sexual intercourse with the child, was properly quashed, and the judgment is affirmed.'

Accordingly the defendant cannot be charged with attempted sodomy and that portion of the charge is dismissed.

The People urge that the testimony was sufficient to spell out a charge of endangering the welfare of a minor in violation of section 260.10 of the Penal Law.

Since the defendant is not the complainant's parent or guardian, the charge must fall within subdivision 1 of the section which makes it a crime to act in a manner likely to be injurious to the physical, mental or moral welfare of a child less than 16 years of age.

The defendant urges that in the absence of physical acts performed to the complainant (People ex rel. Tanis v. Benedict, 28 N.Y.S.2d 202 (Sup.1941)) or in a situation which would impair a child's morals (People ex rel. Kwiatkowski v. Trenkle, 169 Misc. 687 (1938)) the charge cannot be supported.

However, under the predecessor statute, sec. 483 of the Penal Law which punishes a person who wilfully causes a child under 16 to be placed in a situation 'that its life or limb is endangered, or its health is likely to be injured, or its morals likely to be impaired', the courts...