People v. Wisan

• Decision Date: 14 July 1986
• Citation: 132 Misc.2d 691,505 N.Y.S.2d 361
• Parties: PEOPLE of the State of New York v. Judith WISAN, Defendant.
• Court: New York Supreme Court

Page 361

505 N.Y.S.2d 361

132 Misc.2d 691

PEOPLE of the State of New York v. Judith WISAN, Defendant.

Supreme Court, Criminal Term,

Richmond County.

July 14, 1986.

William L. Murphy, Dist. Atty., Richmond County (Judith Waldman, Asst. Dist. Atty., of counsel), for the People.

Schwartz, DiBlasi & Cimini, Queens, (Barry A. Schwartz and Joseph DiBlasi, of counsel), for defendant.

OPINION OF THE COURT

NORMAN J. FELIG, Justice.

The question raised on this aspect of the defendant Wisan's prosecution is whether the acts alleged in paragraphs numbered 17 through 21 of the conspiracy count of the underlying indictment are "overt acts" within the meaning of Section 105.20 of the Penal Law. In sum and substance, that section provides, inter alia, that no one may be convicted of the substantive crime of conspiracy unless "an overt act ... committed by one of the conspirators in furtherance of the conspiracy" is both alleged and proven. In the court's opinion, this question must be answered in the negative.

The defendant, Judith Wisan, together with Earl Jones and Andre Berry, were indicted for the crimes of murder in the second degree, conspiracy in the second degree and criminal possession of a weapon in the second degree. Jones and Berry have pleaded guilty to manslaughter in the first degree and are awaiting sentence. A jury has been selected in the trial of Judith Wisan. At a pre-trial conference, the court discussed with counsel the 21 alleged overt acts listed in the conspiracy count. Rulings were made as to all except those numbered 17 through 21. The court then advised counsel that its decision on the remaining acts would be made prior to the prosecution's opening statement.

At issue here is the status of these five alleged "overt acts", each of which was allegedly committed by one or more of the co-conspirators after the central purpose of the alleged conspiracy, i.e. the murder of defendant's husband, had been accomplished. They include Jones driving Berry from the scene of the alleged murder to New Jersey (17); Berry dropping the weapon alleged to have been used in the shooting into a sewer in New Jersey (18); the payment of money by the defendant, Wisan, to Jones (19); and a meeting between Jones and Berry at which time Jones gave Berry a sum of money (20 and 21). Each of these five acts was allegedly committed on the day of, or on the day following, the commission of the alleged murder, either in the State of New York or in the State of New Jersey.

The United States Supreme Court has held on more than one occasion that the mere existence of a conspiracy to achieve a specific object crime does not imply the existence of a continuing conspiracy to conceal the detection and apprehension of the co-conspirators after the "main aim" or "central criminal purpose" of the underlying conspiracy has been accomplished. Thus, the duration of a conspiracy cannot be indefinitely extended in this manner so as to make the subsequent acts or statements of one of the co-conspirators binding upon the others (see, Grunewald v. United States, 353 U.S. 391, 400-406, 77 S.Ct. 963, 974, 1 L.Ed.2d 1344; Lutwak v. United States, 344 U.S. 604, 615-620, 73 S.Ct. 481, 490, 97 L.Ed. 593; Krulewitch v. United States, 336 U.S. 440, 69 S.Ct. 716, 93 L.Ed. 790). Here, the prosecution does not contend that there was an express agreement among the defendant, Wisan, and her two alleged conspirators "to continue to act in concert in order to cover up, for their own self-protection, traces of the crime after its commission" (Grunewald v. United States, supra, p. 404, 77 S.Ct. p. 974), accordingly, the language of that case is particularly apposite. As the Supreme Court stated:

"We cannot accede to the proposition that the duration of a conspiracy can be indefinitely lengthened merely because the conspiracy is kept a secret, and merely because the conspirators take steps to bury their traces, in order to avoid detection and punishment after the central criminal purpose has been accomplished ... [A] vital distinction must be made between acts of concealment done in furtherance of the main criminal objectives of the conspiracy, and acts of concealment done after the central objectives have been attained, for the purpose only of covering up after the crime" (Grunewald v. United States supra, p. 405, 77 S.Ct. p. 974).

The "main aim" or "central criminal purpose" of a conspiracy having been accomplished, the subsequent acts of concealment or covering up or disposing of the murder weapon "can by themselves indicate nothing more than that the conspirators do not wish to be apprehended--a concomitant, certainly, of every crime since Cain attempted to conceal the murder of Abel from the Lord." ( Grunewald v. United States, supra, pp. 405-406, 77 S.Ct. p. 974). Thus, in the case at bar, when Stephen Wisan was shot and killed, the sole objective of the conspiracy was accomplished, and the conspiracy was at an end.

"There...