People v. Teeter
| Decision Date | 30 April 1976 |
| Citation | 382 N.Y.S.2d 938,86 Misc.2d 532 |
| Parties | The PEOPLE of the State of New York v. Elizabeth TEETER and Michael Kropman, Defendants. |
| Court | New York Supreme Court |
Defendants Teeter and Kropman have been convicted after a jury trial of the crime of Conspiracy in the first degree (105.15 P.L.). At the close of the People's case and again at the close of proof the defendants moved for trial orders of dismissal of the Conspiracy charge. Decision was reserved both times and the matter was submitted to the jury.
The Conspiracy count of the indictment under which they were tried alleges that the defendants 'did agree with one or more persons, to wit, one another and also Ronald Cantaben, Anthony Cotsworth, and others, * * *' to have certain named persons murdered. It further alleges that in furtherance of the conspiracy 'one or more of the conspirators did commit overt acts including but not limited to the following * * *'. The indictment then sets forth two payments of money to Ronald Cantaben. These are the only alleged overt acts spelled out in the indictment.
One of the major problems, apparent from the above, is that the only overt acts alleged are payments from one coconspirator to another. It is alleged that the first payment was 'a down payment for the murder' and the other 'to be used as payment for the murder * * *'. Case after case has held that, citing only one:
(People v. Wolff, 24 A.D.2d 828, 264 N.Y.S.2d 40.)
Here, the indictment alleges payment to a co-conspirator, not to be paid to another for services but for the co-conspirator and, therefore, would not constitute an overt act such as is required by law.
People v. DeCabia, 10 Misc.2d 923, 172 N.Y.S.2d 1004, submitted by the prosecution in support of its position is easily distinguishable. In DeCabia, money was given to a co-conspirator 'to be used by him for the proposed bribe', in other words, to pass on to someone else.
In Hines, supra, one of the overt acts alleged was that the defendant was paid $500 to $1,000 a week for performing his part in the conspiracy, for committing criminal acts toward fulfilling the purpose of the conspiracy.
Here, it is alleged that one of the co-conspirators received two payments for performing his part in the conspiracty: to commit murder, the purpose of the conspiracy.
While it is true, as the People maintain, that the Court of Appeals and the Appellate Division in Hines, supra, did not address themselves to the trial court's fuling that such payment to Hines was merely something done as part of the agreement to cement the conspiracy (People v. Hines, 168 Misc. 453, 457, 6 N.Y.S.2d 2, 4), it is sufficient for our purposes to point out that the Appellate Division, Fourth Department, held that that was the rule in Wolff, supra.
The People argue that, in addition to setting forth the two payments, the indictment says that the overt acts committed included such payments but were 'not limited to' such payments. They claim, therefore, that even if the two payments did not constitute overt acts they could show other overt acts to satisfy the legal requirements. While it is true that on the trial the People can prove overt acts in addition to those alleged, they must in all events prove the overt acts alleged (People v. Ferguson, 55 Misc.2d 823, 829, 286 N.Y.S.2d 924, 931). While it might well be that the journey taken to show the 'hit man' where the intended victims lived could be considered an overt act (People v. Rivera, 281 App.Div. 911, 120 N.Y.S.2d 91, affd. 306 N.Y. 588, 115 N.E.2d 687), it cannot fill the gap left by the failure to prove an overt act alleged in the indictment, if such a gap exists. I say 'if such a gap exists' because if Cantaben was not a co-conspirator then the alleged payments to him by one who was would constitute an overt act such as would sagisfy the requirements of Section 105.20 of the Penal Law.
The more perplexing arguments were those presented on the motions to dismiss...
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