People v. Wilczynski

• Decision Date: 09 September 1977
• Citation: 97 Misc.2d 307,412 N.Y.S.2d 239
• Parties: The PEOPLE of the State of New York, Plaintiff, v. Joseph WILCZYNSKI, Defendant.
• Court: New York Supreme Court

Page 239

412 N.Y.S.2d 239

97 Misc.2d 307

The PEOPLE of the State of New York, Plaintiff, v. Joseph WILCZYNSKI, Defendant.

Supreme Court, Trial Term, New York County, Part 32.

Sept. 9, 1977.

Robert M. Morganthau, Dist. Atty., Benjamin Brafman, Asst. Dist. Atty., New York City, for plaintiff.

Washor & Washor, Brooklyn, Michael S. Washor, Brooklyn, of counsel, for defendant.

DECISION ON MOTION

BENTLEY KASSAL, Justice:

HISTORY

The indictment accused the defendant, a police officer, of two counts of Grand Larceny and one of Official Misconduct for stealing a sum of money from an individual while effecting an arrest. While the indictment did not specifically accuse the defendant of accessorial conduct in the commission of the crimes or allege that any other individuals were present, evidence was admitted at trial that other police officers participated in the commission of the crimes. The jury was instructed that the actions of the other participants could be considered as evidence against the defendant if the element of accessorial conduct (Article 20 of the Penal Law) were first established.

Defendant moves to set aside the jury verdict on the grounds that the Court committed error in improperly charging the jury that the defendant could be found guilty on the basis of either accessorial conduct or his individual actions. The basis for the motion is that the indictment did not specifically accuse the defendant of accessorial conduct in committing alleged criminal acts and that the Grand Jury minutes should have been examined to determine if the Grand Jury considered and rejected this theory of criminal liability.

ISSUE

The issue presented by this motion is whether the Court may charge the jury that the defendant may be found guilty on the basis of his accessorial conduct when the language of the indictment accuses him as a principal.

DECISION

In essence, it is defendant's position that since the indictment accused him only as a principal, the Court erroneously changed the theory of the indictment by permitting the introduction of evidence and charging the jury with respect to his liability as an accessory.

The principal cases cited by defendant are inapposite since they deal with the situation that arises when the Court charges a substantive crime not appearing in the indictment or amends the indictment to charge additional criminal acts or crimes. In the present case, the Court did not charge an additional substantive crime (one cannot now be convicted of a crime called "accessorial conduct" but only of the underlying crime which he aids, assists, etc. another to commit). Here, the Court merely explained to the jury the legal bases of potential criminal liability, in accordance with the proof on trial. The jury was instructed that the defendant could be found guilty of the crimes charged on the basis of his independent conduct or under Article 20 of the Penal Law if he solicited, requested, commanded, importuned or intentionally aided another person to engage in such conduct, with the appropriate Mens rea.

The above jury instructions did not go beyond that which was encompassed by the indictment. It has long been held that an indictment need not specify that the defendant solicited, requested, commanded, importuned or intentionally aided another in the commission of the crime charged. "It is sufficient that the indictment charged him as a principal in the words of the statutes proscribing the conduct." People v. Alvarez, 88 Misc.2d 709, 714, 389 N.Y.S.2d 980, 984; People v. Katz, 209 N.Y. 311, 325-326, 103 N.E. 305, 309; People v. Bliven, 112 N.Y. 79, 19 N.E. 638; People v. Henry, 18 A.D.2d 293, 239 N.Y.S.2d 146.

As long ago as 1889, our Court of Appeals thoroughly considered this question and, after reviewing the history of this area of the law, came to the conclusion that such indictments are sufficient. As the Court stated in People v. Bliven, supra, 112 N.Y. pp. 92-93, 19 N.E. pp. 644-645:

"By holding this indictment (accusing the defendant in the language of a principal) to be insufficient to admit proof of the defendant's guilt by reason of his procuring and advising the act to be done, instead of doing it himself, we think we should be taking a step backwards in regard to the proper rules which should obtain in criminal pleadings. * * *"

The measure of the specificity required in an indictment is that the crimes charged be described in language sufficiently clear to

1. identify the crime charged so as to bar subsequent charge for the same offense, and

2. enable the defendant to prepare a defense. CPL 200.50; People v. Williams, 243 N.Y. 162, 153 N.E. 35; People v. R., 78 Misc.2d 616, 356 N.Y.S.2d 1006, affd. 47 A.D.2d 599, 365 N.Y.S.2d 998.

Although similar to and containing some of the elements of the crime of conspiracy (Article 105 of the Penal Law), accessorial conduct (Article 20 of the Penal Law) is not now a separate crime for which a defendant...