People v. Trepanier

• Decision Date: 29 January 1982
• Citation: 84 A.D.2d 374,446 N.Y.S.2d 829
• Parties: PEOPLE of the State of New York, Appellant, v. Andre TREPANIER, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 829

446 N.Y.S.2d 829

84 A.D.2d 374

PEOPLE of the State of New York, Appellant, v. Andre TREPANIER, Respondent.

Supreme Court, Appellate Division Fourth Department.

Jan. 29, 1982.

Richard A. Hennessy, Jr., Syracuse, (John Cirando, Syracuse, of counsel) for appellant.

Robert L. Tisdell, Syracuse, for respondent.

Before SIMONS, J. P., and CALLAHAN, DENMAN, MOULE, and SCHNEPP, JJ.

SCHNEPP, Justice.

We cannot agree that, in the circumstances of this case, defendant can be exonerated from criminal liability for attempted arson because the accomplice whom he hired to commit the crime had no criminal intent and did not attempt to commit the arson. The Onondaga County Grand Jury indicted the defendant for the crimes of attempted arson in the second degree (Penal Law, §§ 110.00, 150.15), attempted grand larceny in the second degree (Penal Law, §§ 110.00, 155.35), and reckless endangerment in the first degree (Penal Law, § 120.25). The indictment stemmed from defendant's hiring of an undercover New York State trooper to burn down a building containing three apartments and a store.

After reviewing the Grand Jury minutes, County Court granted defendant's motion to dismiss the indictment for legal insufficiency (CPL 210.30) and authorized the District Attorney to resubmit the case to the Grand Jury. With relation to the attempted arson offense the court found that,

party to the alleged agreement to commit the crime of arson was an undercover officer, who never came close to the actual commission of this crime.... Under the facts of this case, the undercover agent went to defendant's residence with an empty gas can for the express purpose of being arrested. There was no intent or an attempt to commit the underlying crime.

The court also found that the minutes were legally insufficient relative to the remaining counts.

There was evidence before the Grand Jury that a police informant introduced defendant to Donald Geary, the undercover State trooper, after defendant asked the informant to secure for him the service of an arsonist. Defendant told Geary when he met him that he wanted his building burnt to the ground as soon as his fire insurance was in effect. Geary agreed to do the job for $500. Defendant suggested that an oil tank filled with kerosene, or new boilers in the basement which had been "blowing back flames" could be used as a basis for the fire. He said that he would leave the south side cellar window open as a means of entering the building and showed Geary the entrance point from the outside. Defendant also told Geary that he had purchased and installed smoke alarms in the building to avoid suspicion. At a later meeting defendant told Geary that the insurance was effective and that the fire should be set on the night of February 13, 1981. Defendant said that he had created an "alibi" for that night and that he would leave the cellar window unlocked and remove the boards covering the window. He also expressed un-concern about the safety of the building's tenants because of his belief that they had been stealing from his store. It was at this time that defendant paid Geary a down payment of $250 for the arson; the balance was due upon completion. During the evening of February 13, Geary, carrying an empty gas can, went to the premises in accordance with defendant's instructions. The boards covering the point of entry had been removed and the window was open. Tenants were observed in the building. Geary walked up to the point of entry with the gas can in his hand when, as previously planned with the Syracuse Police Department, he was placed under arrest for criminal trespass. There was further testimony that defendant had been observed earlier that evening taking most of his belongings from the occupied building and that prior to February 13 the intended point of entry had been boarded up.

Thus, the Grand Jury testimony was sufficient to establish that the defendant (1) hired an arsonist, (2) planned the arson, (3) arranged insurance coverage for the building, (4) created an alibi for himself in anticipation of the arson and (5) prepared the crime scene to permit easy entry of the arsonist into the building. In short, the proof was sufficient to establish that defendant did everything but set the fire himself.

That defendant had a criminal intent is beyond peradventure. This alone is insufficient, however, to establish criminal liability for attempt. Section 110.00 of the Penal Law requires in addition "conduct which tends to effect the commission ..." of the contemplated crime. "(I)t must be proven that the defendant acted to carry out his intent. The law does not punish evil thoughts." (citations omitted) (People v. Bracey, 41 N.Y.2d 296, 300, 392 N.Y.S.2d 412, 360 N.E.2d 1094).

The necessary overt act need not be "the final one towards the completion of the offense" (see People v. Bracey, supra, 41 N.Y.2d p. 300, 392 N.Y.S.2d 412, 360 N.E.2d 1094, citing People v. Sullivan, 173 N.Y. 122, 133, 65 N.E. 989), but it must come or advance "very near to the accomplishment of the intended crime." (People v. DiStefano, 38 N.Y.2d 640, 652-653, 382 N.Y.S.2d 5, 345 N.E.2d 548; see People v. Bracey, supra, 41 N.Y.2d p. 300, 392 N.Y.S.2d 412, 360 N.E.2d 1094; People v. Ditchik, 288 N.Y. 95, 96, 41 N.E.2d 905; People v. Werblow, 241 N.Y. 55, 61, 148 N.E. 786).

Whenever the acts of a person have gone to the extent of placing it in his power to commit the offense unless interrupted and nothing but such interruption prevents his present commission of the offense, at least then he is guilty of an attempt to commit the offense, whatever may be the rule as to his conduct before it reached that stage. (People v. Sullivan, supra, p. 136; People v. Werblow, supra, p. 64-65 ).

Acts of preparation to commit an offense do not constitute an attempt (see People v. Bracey, 41 N.Y.2d 296, 300, 392 N.Y.S.2d 412, 360 N.E.2d 1094, supra). There "must be a step in the direct movement towards the commission of the crime after preparations have been made." (People v. Collins, 234 N.Y. 355, 360, 137 N.E. 753). Thus, procuring tools to commit a burglary does not constitute an attempted burglary (see People v. Collins, supra, p. 359, 137 N.E. 753; People v. Sullivan, 173 N.Y. 122, 135, 65 N.E. 989, supra). Likewise acts of conspiring to commit a crime, or of soliciting another to commit a crime do not per se constitute an attempt to commit the contemplated crime (People v. Werblow, 241 N.Y. 55, 61, 148 N.E. 786, supra; see People v. Lubow, 29 N.Y.2d 58, 65, 323 N.Y.S.2d 829, 272 N.E.2d 331).

The thief who employs a confederate to go to foreign lands and there commit a fraud, has done a wrongful act which is not yet the beginning of the crime, though it incites and prepares for the crime that is to come. The force set in motion is neither continuous nor mechanical, and its operation may be broken before the stage of attempt has been attained ... (citations omitted) (People v. Werblow, supra, p. 65, 148 N.E. 786).

The defendant in this case, however, did more than employ an "arsonist", give him instructions, and send him on his way to commit the crime. The proof is sufficient to establish that on the day fixed by defendant for the arson, and in accordance with the previously made plan, he removed all obstructions to the point of entry through the cellar window and left the window unlocked. These acts go beyond mere planning or preparation. The defendant acted on his plan and took steps to insure its successful implementation. He placed it within the power of the "arsonist" to commit the offense unless interrupted, and, as such, brought the intended crime dangerously near to accomplishment.

Thereafter, the "arsonist" arrived at the scene as planned and went to the agreed upon point of entry. The police "arrested" him as he was about to enter the building through the cellar window.

Although defendant does not dispute the principle that he is bound by his own culpability, he contends that the arson never had any chance of success and did not reach the stage of attempt because the "arsonist" arrived at the scene with an empty gas can. Actually, however, whether or not the gas can was full is irrelevant, since the "arsonist" was a police officer without any intent to commit the offense. Defendant's real argument is that the arson never reached the stage of attempt because the "arsonist" was a police officer who never intended to commit the crime. This argument is without merit.

It is no defense to the crime of attempt that the intended crime was factually or legally impossible of commission, "if such crime could have been committed had the attendant circumstances been as such person believed them to be." (Penal Law, § 110.10; ...