People v. Schwimmer , 411 N.Y.S.2d 922 ( 1978 )

Titone, J. (dissenting).

Any analysis of the question now before this court logically begins with the statutory definition of conspiracy under article 105 of the present Penal Law. Section 105.10 of such article provides:

"A person is guilty of conspiracy in the second degree when, with intent that conduct constituting a class B or class C felony be performed, he agrees with one or more persons to engage in or cause the performance of such conduct.

"Conspiracy in the second degree is a class E felony.” (Section 105.10 now defines conspiracy in the fourth degree [L 1978, ch 422] in substantially the same language.)

In deciding to reverse Criminal Term and reinstate the first two counts of the indictment charging defendant with conspiracy in the second and third degrees, respectively, the majority states that the traditional doctrine as to conspiracy, to wit, the "bilateral approach”, which depends upon evidence of at least two conspirators in determining the guilt of any single coconspirator, has been abandoned. Substituted in its place, opines the majority, is the "unilateral approach” in which, by concentrating on individual, rather than group, liability, the guilt of a particular actor is made independent of that of his coconspirators. Thus, concludes the majority, under this new concept, the defendant may be guilty of the crime of conspiracy even though his purported cohorts were in reality either undercover police officers, informants, or both. I cannot agree either with the majority’s reasoning or conclusions.

Although the language defining conspiracy in the present Penal Law concededly is directed toward the actions and intent of an accused, nowhere in article 105 of the Penal Law, entitled Conspiracy, is there contained any language which expressly or impliedly indicates that the Legislature intended to abandon the historical concept of the crime of conspiracy, namely, inter alia, that there must be a corrupt compact between or among two or more persons. Indeed the majority concedes as much when it states: "The basic elements of conspiracy are the same under either formulation”.

Significantly, in his article The Anticipatory Offenses in the New Penal Law (32 Bklyn L Rev 257, 264) Mr. Justice Sobel states: "It may be noted that the new definition of conspiracy adopts the 'unilateral approach’ i.e., it states 'a person is guilty’ etc., rather than the old definition 'If two or more persons conspire’ etc. A consequence of the true unilateral approach is to make immaterial the conviction of other conspirators. But the Commission notes [Commission Staff Notes to the Proposed New York Laws: Senate Int. 3918, Assembly Int. 5376 (1964)] expressly state that no major changes other than those discussed are contemplated by the conspiracy article. We may then assume that the existing rule remains in effect—there must be a conviction of at least two conspirators.” (Emphasis supplied.)

Specifically, the definition of conspiracy, quoted above, mandates that there be an "agreement” between two or more persons to engage in, or cause, the commission of a crime. This is no radical departure from the age-old concept of conspiracy. An agreement in common parlance is essentially a meeting of minds in a common intention and implies two or more persons to the pact. In the instant situation the police officer and the informant concededly had no intention of allowing the alleged robbery scheme to come to fruition.

With respect to the crime of conspiracy, agreement has been defined as the union of two or more minds in a thing done or to be done, a coming or knitting together of minds, or a mutual assent to do a thing (Odneal v State, 117 Tex Cr Rep 97). The essence of a criminal conspiracy is an unlawful agreement or combination. To constitute a conspiracy there must be a combination of two or more persons; one person cannot conspire by himself. To constitute the offense, as far as the combination is concerned, there must be a meeting of minds, a mutual implied understanding or tacit agreement. All the parties working together, with a single design, for the accomplishment of a common purpose. Conspiracy imparts a corrupt agreement between not less than two persons with guilty knowledge on the part of each (Morrison v California, 291 US 82; People v Bauer, 32 AD2d 463, 466, affd 26 NY2d 915; People v Mackell, 47 AD2d 209, affd 40 NY2d 59; 15A CJS, Conspiracy, §§ 35 [1], 38).

As late as February, 1977 this court, in reviewing the conviction of one defendant for having conspired with a co-defendant, stated (People v Brooks, 56 AD2d 634): "Since we are reversing the conspiracy conviction of codefendant Vario for failure of proof * * * the conspiracy conviction of defendant Brooks must also fall.”

Thus, under no analysis of the crime of conspiracy as it is defined under New York’s present statute, can it be logically rationalized that feigned agreement by one of the purported conspirators satisfies the essential element of a corrupt agreement between two or more persons. By its very nature conspiracy is a joint or group offense requiring a concert of free will (Moore v State, 290 So 2d 603 [Miss]). After the elimination of an officer acting in the discharge of his duty, or an informer who conspires solely for the purpose of informing, there must be at least two persons to a conspiracy (Moore v State, supra, p 605). It is well established that one who acts as a government agent and enters into a purported conspiracy in the secret role either of an undercover officer or an informer cannot be a coconspirator (see United States v Chase, 372 F2d 453, cert den 387 US 907; Sears v United States, 343 F2d 139; People v Teeter, 86 Misc 2d 532, 535, affd 62 AD2d 1158). A person who pretends to join a conspiracy in order to trap the criminals is not a coconspirator (1 Wharton’s Criminal Law and Procedure, § 83).

Moreover, I do not agree with the majority’s assertion that under section 105.30 of the Penal Law, entitled "Conspiracy; no defense”, police officers may be coconspirators notwithstanding a lack of criminal intent on their part. As stated succinctly and, in my opinion, accurately, in People v Teeter (supra, pp 535-536), such section relates to a person’s lack of intent due to a lack of mental capacity or unawareness precluding the formation of a criminal intent. It does not, as here, pertain to a person in full possession of his mental faculties and who has a full awareness of his situation. Section 105.30 of the Penal Law in effect precludes the interposition of a defense in a case where, except for the failure of responsibility on the part of one or more of the coconspirators, a conspiracy has otherwise taken place (see, also, People v Hanley, 92 Misc 2d 465; Marks and Paperno, Criminal Law in New York Under Revised Penal Law, § 66).

Further evidence that there must be a corrupt agreement involving two or more persons before a conspiracy is created, is found in the following language contained in section 105.20 of the Penal Law, entitled Conspiracy; pleading and proof; necessity of overt act: "A person shall not be convicted of conspiracy unless an overt act is alleged and proved to have been committed by one of the conspirators in furtherance of the conspiracy.” (Emphasis supplied.)

As mentioned above, neither the police officer nor the informer can be classified as a conspirator since neither had the requisite criminal intent either at the inception of the feigned agreement or during its existence. A conspirator has been defined as a person who enters on a common enterprise or adventure with one or more persons and a criminal offense is contemplated (Kelly v State, 31 Ala App 194; see, also, 15A CJS, Conspirator, p 984). A police officer lacking criminal intent cannot be a coconspirator (see People v Teeter, supra, p 535; United States v Chase, supra; Sears v United States, supra).

In my opinion the language contained in section 105.20 of the Penal Law completely destroys the implied position taken by the majority, to wit, that a police officer or informant who feigns agreement, and is therefore incapable of committing the crime of conspiracy, is nevertheless a conspirator or a coconspirator. Under such theory, an allegation and proof that the overt act in furtherance of the conspiracy was committed by the officer or the informant would be sufficient, under section 105.20, to sustain a conspiracy conviction of the nonperforming defendant. I do not believe that the Legislature ever intended that such a bizarre possibility should occur when it enacted section 105.20.

It now appears that by the majority’s action in reinstating the two conspiracy counts, this case will stand for the proposition that an accused with a criminal intent, combining with a police officer without such intent, together with an overt act, could be found guilty of conspiracy. The majority’s interpretation effectively destroys the distinction between the crimes of solicitation and conspiracy and consequently raises the highest grade of the crime of solicitation to a class B felony, whereas formerly its highest grade was a class D felony. (Under recent amendments to the Penal Law [L 1978, ch 422], the highest degree of conspiracy is now an A-l felony and the highest degree of solicitation is a C felony.) However, solicitation and conspiracy, although both are inchoate crimes, are nevertheless separate and distinct offenses. Conspiracy presents a greater potential punishment because concerted criminal activity presents a greater potential threat to the public than individual conduct (People v Hanley, supra, p 468). In this instance the combination of a would-be criminal with undercover agents of the police was in fact notably bereft of antisocial potentialities indigenous to a conspiracy.

Finally, it should be noted that in its discussion of the so-called unilateral approach, the majority accepts as ordained that by a simple shift of terminology from the plural to the singular in the conspiracy definition, the State Legislature intended to change the basic rules pertaining to conspiracy as well as its definition. I perceive no such intent. In my opinion the majority’s reasoning not only brushes aside fundamental precepts of our criminal law, but also does violence to the common sense meaning of everyday English words in order to enunciate a radically new legal concept. Without any encouragement from the Legislature, the majority construes the word "agree” to encompass a feigned acquiescence by the purported coconspirator, and the word "conspirator” to include a law enforcement agent acting in the performance of his duty. However, it has always been my understanding that in the rare instances when a legislature decides to use a word not totally in keeping with its everyday meaning, it will carefully define the new meaning it is ascribing to the word. Specifically I have in mind the definition of the word "sell” as used in the Penal Law with respect to the illegal sale of controlled substances. Under subdivision 1 of section 220.00 of the Penal Law, the word "sell” is defined as follows: "’Sell’ means to sell, exchange, give or dispose of to another, or to offer or agree to do the same.” Obviously such procedure was not used in this instance.

Therefore, I believe the action of Criminal Term in dismissing the two conspiracy counts should be sustained. Tempting and imaginative as the unilateral theory of conspiracy may be, its implementation, I submit, should await clear and convincing legislative action in that regard.

I also disagree with appellant’s contention that in any event the two counts charging defendant with conspiracy should not have been dismissed since the lesser included offense of attempted conspiracy was spelled out. As Mr. Justice Sobel noted in his discussion (The Anticipatory Offenses in the New Penal Law, 32 Bklyn L Rev 257), conspiracy is an inchoate, or anticipatory, crime. It is "anticipatory in the sense that there exists an 'object’ or substantive crime yet to be committed.” Because of the very nature of conspiracy as an inchoate crime there cannot be an attempt to commit it since you would then have an attempt on an attempt. To establish a conspiracy proof is required that the plot or scheme is being acted upon and not resting in the minds of the plotters. Conspiracy is a completed crime only when the agreement is effectuated by an overt act toward fruition of the substantive crime (Sobel, The Anticipatory Offenses in New Penal Law, supra). Thus, even when the conspiracy is established, it is inchoate. To hold that acts which have not reached the minimal level required for an inchoate crime are sufficient to warrant a conviction for attempted conspiracy is untenable. It would render illegal acts which, in themselves, are insufficient even to constitute an anticipatory crime. Thus it would forbid conduct which is not unlawful.

Therefore, I dissent and vote to affirm.

Latham, J. P. and Damiani, J., concur with Rabin, J.; Titone, J., dissents and votes to affirm the order insofar as appealed from, with an opinion.

Order of the Supreme Court, Kings County, entered February 22, 1978, reversed insofar as appealed from, on the law, and counts one and two of the indictment are reinstated.