People v. Teeter

• Decision Date: 14 April 1978
• Citation: 62 A.D.2d 1158,404 N.Y.S.2d 210
• Parties: PEOPLE of the State of New York, Respondent, v. Elizabeth TEETER, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 210

404 N.Y.S.2d 210

62 A.D.2d 1158

PEOPLE of the State of New York, Respondent, v. Elizabeth TEETER, Appellant.

Supreme Court, Appellate Division, Fourth Department.

April 14, 1978.

Edward J. Nowak, Rochester, William G. Pixley, Rochester (argued), for appellant.

Lawrence T. Kurlander, Rochester, Melvin Bressler, Rochester (argued), for respondent.

Before MOULE, J. P., and CARDAMONE, SIMONS, DILLON and HANCOCK, JJ.

MEMORANDUM:

The court submitted to the jury the question whether Officers Cantaben and Cotsworth were members of a conspiracy to kill the two intended victims. At the close of its instruction relating to the existence of an overt act, the court charged that if the jury found that these officers were not conspirators but that Teeter and Kropman were, and if the jury found that money was paid to Officer Cantaben by Kropman for the purpose of having the victims killed, then the payment of money would constitute an overt act and the crime would be complete. The charge was correct and by its verdict the jury found that Teeter and Kropman were the only members of the conspiracy and that the payments of money to Officer Cantaben were made for the purpose of having the intended victims killed. These findings are supported by the record.

Judgment affirmed.

All concur, except CARDAMONE and HANCOCK, JJ., who dissent and vote to reverse the judgment and grant a new trial, in the following Memorandum:

Defendants were convicted of conspiracy first degree for allegedly having conspired together and with two police officers, Cantaben and Cotsworth, operating as undercover agents to effect the murder of two named individuals. The only acts of defendants alleged and proven as overt acts in furtherance of the conspiracy were two payments to Cantaben, one in the amount of $40.00 on August 1, 1975 and one in the amount of $70.00 on August 18, 1975. There was no suggestion in the trial that Cantaben and Cotsworth were anything other than police officers or that they were conspirators or that they at any time had criminal intent. However, even though Cantaben and Cotsworth were never in fact co-conspirators, and legally could not have been (see 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; and People v. Hanley, 92 Misc.2d 465, 400 N.Y.S.2d 319), there was no question that the defendants believed Cantaben and Cotsworth were co-conspirators. There was evidence that defendants also believed they were making the payments to Cantaben and Cotsworth as a quid pro quo for their agreement and for the purpose of "cementing the conspiracy" and not in furtherance thereof. (People v. Hines, 168 Misc. 453, 6 N.Y.S.2d 2, affd. on other grounds 258 App.Div. 466, 17 N.Y.S.2d 141, mod. 284 N.Y. 93, 29 N.E.2d 483.)

The law is well settled that "(p)ayment 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" (People v. Wolff, 24 A.D.2d 828, 264 N.Y.S.2d 40; People v. DeCabia, 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. Hines, supra). The determinative test is the conspirator's purpose in making the payments, i. e. whether the payments were made as a quid pro quo and as a part of the agreement or "for purposes of carrying out and furthering the unlawful agreement already entered into by all parties concerned" (People v. DeCabia, supra, 10 Misc.2d at 925, 172 N.Y.S.2d at 1007).

The court, however, in its charge instructed the jury that "(i)f the police officers, in other words for them to be conspirators as alleged in the Indictment, for the police officers to be conspirators they would have to have the criminal intent,...