People v. Tavormina

• Decision Date: 15 July 1931
• Citation: 257 N.Y. 84,177 N.E. 317
• Parties: PEOPLE v. TAVORMINA et al.
• Court: New York Court of Appeals Court of Appeals

257 N.Y. 84

177 N.E. 317

PEOPLE

v.TAVORMINA et al.

Court of Appeals of New York

July 15, 1931.

Criminal prosecution by the People of the State of New York against Louis Tavormina and others. From a judgment of the Appellate Division (233 App. Div. 690,249 N. Y. S. 928), which affirmed a judgment of the Trial Term (138 Misc. Rep. 752, 246 N. Y. S. 65), sustaining demurrers to an indictment which charged the defendants with the crime of conspiracy, the People appeal by premission of a judge of the Court of Appeals.

Judgments reversed, and the demurrers overruled.

Appeal from Supreme Court, Appellate Division, Second department.

William F. X. Geoghan, Dist. Atty., of Brooklyn (Henry J. Walsh, Asst. Dist. Atty., of Brooklyn, of counsel), for the People.

William M. Smith, of New York City, for respondent Joseph M. Cohn.

Michael F. Longo, of Brooklyn, for respondents Palumbo, Longo and Safina.

Thomas Cradock Hughes, of Brooklyn, for respondent Louis Tavormina.

Caesar B. F. Barra, of New York City, for respondent Gennaro Ascione.

HUBBS, J.

The defendants were indicted in the county of Kings for the crime of conspiracy. Penal Law (Consol. Laws, c. 40) § 580. Demurrers were filed to the indictment and were sustained upon the ground that the indictment charged a misdemeanor, that the overt acts set out therein alleged that the conspiracy charged resulted in the commission of felonies, and that the misdemeanor merged in the felonies. The indictment charges that the defendants unlawfully conspired to cheat the City Trust Company, the Atlantic State Bank, and the Harlem Bank of Commerce out of money and property. It alleges in various ways the methods employed to accomplish such result. It sets out many overt acts by which the conspiracy was consummated. The overt acts alleged indicate that, in carrying out the conspiracy, the defendants committed other acts which constituted felonies. The learned trial justice, in sustaining the demurrers, followed the dictum delivered in the case of Lambert v. People, 9 Cow. 578, to the effect that an indictment which charges an executed conspiracy to commit a crime is fatally defective, as the conspiracy is absorbed or merged in the actual commission of the crime and the indictment should be for the crime actually committed. That was the first expression of judicial opinion upon the subject in this jurisdiction. It was stated that the principle applied if the crime charged to have been committed as a result of a conspiracy was a misdemeanor. Three years later the case of People v. Mather, 4 Wend. 229, 265, 21 Am. Dec. 122, stated: ‘A conspiracy is only a misdemeanor, and when its object is only to commit a misdemeanor it cannot be merged. Where two crimes are of equal grade there can be no legal technical merger.’

This court has never definitely passed upon the questionand it is at liberty to adopt a rule which is in accord with sound public policy, and which will promote the ends of justice and be conducive to efficient enforcement of the criminal law.

Since the opinion in Lambert v. People, supra, there have been statements made in opinions by eminent judges in this state expressing approval of the principle there stated. People v. Fish, 4 Parker Cr. R. 206, 212; People v. Wiechers, 94 App. Div. 19, 87 N. Y. S. 897, affirmed 179 N. Y. 459, 72 N. E. 501,1 Ann. Cas. 475;People v. Coney Island Jockey Club, 68 Misc. Rep. 302, 304, 123 N. Y. S. 669;People v. Thorn, 21 Misc. Rep. 130, 131, 47 N. Y. S. 46;People v. McKane, 7 Misc. Rep. 478.28 N. Y. S. 397;People v. Wicks, 11 App. Div. 539, 42 N. Y. S. 630;People v. Rose, 101 Misc. Rep. 650, 168 N. Y. S. 933. The doctrine has not been free from criticism, however. People v. Petersen, 60 App. Div. 118, 69 N. Y. S. 941;People v. Rathbun, 44 Misc. Rep. 88, 89 N. Y. S. 746;People v. Willis, 24 Misc. Rep. 537, 54 N. Y. S. 129;People v. Palmisano, 132 Misc. Rep. 244, 229 N. Y. S. 462;People v. Dunbar Contracting Co., 82 Misc. Rep. 174, 143 N. Y. S. 337. It is asserted by the respondents that this court in Elkin v. People, 28 N. Y. 177;People ex rel. Lawrence v. Brady, 56 N. Y. 182; and People v. Wiechers, 179 N. Y. 459, 72 N. E. 501,1 Ann. Cas. 475, has expressly approved the rule as stated in Lambert v. People, supra.

We do not so understand those cases. In the Elkins Case the defendant was indicted and convicted of a conspiracy to cause one Laube to be arrested for the crime of larceny. The conspiracy consisted in procuring Westendorff to make a complaint against Laube and falsely swear to the larceny charge. It was urged that the conspiracy charge against the defendant was merged in the felony of subornation of perjury. This court held that the facts did not establish that the defendant had committed the crime of subornation of perjury and, therefore, that there could be no merger of the misdemeanor in a felony. The opinion did not hold or intimate that if the evidence had established that the defendant had committed the crime of subornation of perjury, the misdemeanor of conspiracy would have merged in the felony.

The Lawrence Case was an appeal by the relator from a judgment dismissing a writ of habeas corpus. The case only holds that in a complaint charging one with the crime of conspiracy to defraud it is necessary to set out the means by which the fraud was effected. In so deciding the opinion cited the case of Lambert v. People, and stated that it decided that question, and expressly approved the decision upon that point only. The opinion does not refer to the question of merger which was discussed in the Lambert Case.

In People v. Wiechers the opinion in the Appellate Division (94 App. Div. 19, 87 N. Y. S. 897) indicates that if the decision had so required the court would have held that the crime of conspiracy was merged in the consummated crime of obtaining money by false pretenses. The decision, however, went upon the ground that the indictment charged an unexecuted conspiracy and was, therefore, legal. This court held that the question of the validity of the indictment could not be passed upon in this court as it was not properly raised. One judge dissented upon the ground that this court had jurisdiction to pass upon the question upon the record as presented. The court did not directly or indirectly pass upon the question of merger.

Under the early common law of England, it was held that where, in an indictment for a misdemeanor, facts were set out showing the commission of a felony, the indictment should be dismissed as the misdemeanor merged in the felony. This was on the theory that when the lesser offense met the greater, the lesser was absorbed or sank into the greater. The same principle applied where upon the trial of a misdemeanor the evidence established the commission of a felony. The principle followed by the English courts was based upon the distinction which then existed between a misdemeanor and a felony. It was not deemed advisable to intrust the prosecutor with authority to prosecute either charge at his discretion, as the trial of a felony differed greatly from a trial for a misdemeanor. In a trial for a felony the defendant was not entitled to counsel, and the right to challenge jurors and to a copy of the indictment were limited. It was also held that the King was entitled to a conviction of felony with its attendant forfeiture. Rex v. Westbeer, 1 Leach C. C. 12, 2 Strange, 1133; Rex v. Parry, 7 Carr. & P. 836, 32 Eng. C. L. 898; Rex v. Doran, 1 Leach, 538; State v. Setter, 57 Conn. 461, 18 A. 782,14 Am. St. Rep. 121;Graff v. People, 208 Ill. 312, 70 N. E. 299.

As early as 1809 the question came before the Supreme Court of Massachusetts, in the case of Commonwealth v. Kingsbury, 5 Mass. 106. The counsel for the defendant cited English cases which supported the doctrine of merger. The court followed the reasoning of those cases and held that the misdemeanor of conspiracy charged in the indictment was merged in the consummated crime. That case was cited in the opinion of Senator Spencer, delivered in the case of Lambert v. People, supra, and its reasoning adopted. The basis of both decisions, therefore, was the early English common-law decisions, which were founded upon conditions which have long since ceased to exist. Nevertheless, opinions in different state courts continue to cite those opinions as authority for the proposition that a misdemeanor is merged in a felony. The reason for the rule having disappeared, the rule itself should be abrogated unless it can be justified upon other grounds. The Massachusetts courts have abandoned the rule, and now hold that, ‘The fact that the defendant has been guilty of a higher offence than that alleged is no defence.’ Commonwealth v. Walker, 108 Mass. 309, 314. ‘It is not open to them [defendants] to object that they are not indicted for the greater offence.’ Commonwealth v. Andrews, 132 Mass. 263, 265. ‘The offense of conspiracy was not merged in the specific crimes afterwards committed in pursuance thereof, although the conspiracy was only a misdemeanor and the subsequent crimes were felonies.’ Commonwealth v. Stuart, 207 Mass. 563, 571, 93 N. E. 825, 828;Commonwealth v. Marsino, 252 Mass. 224, 147 N. E. 859.

The federal courts hold that a conspiracy to commit a crime constitutes a distinct offense, different from the consummated crime, and is not merged therein. United States v. Rabinowich, 238 U. S. 78, 35 S. Ct. 682, 59 L. Ed. 1211.

Section 37 of the Federal Criminal Code (U. S. Code Apno., tit. 18, § 88) makes conspiracy a felony, and the doctrine that the lesser crime merges in the greater is not applicable in the federal courts. Nevertheless, the United States Supreme Court holds that the conspiracy and the offense which the conspiracy contemplates are entirely separate and distinct offenses.

In New Jersey an indictment for a conspiracy to falsely charge a person with an offense and procure his arrest therefor is good, although the indictment...