People v. Schwimmer , 66 A.D.2d 91 ( 1978 )

OPINION OF THE COURT

Rabin, J.

The appeal, as limited by the People’s brief, is from so much of an order of the Supreme Court, Kings County, entered February 22, 1978, as dismissed the first and second counts of the indictment, charging defendant with conspiracy in the second and third degrees, respectively.

The issue on appeal is whether the defendant may be convicted of conspiracy when all the other members of the alleged conspiracy have feigned agreement and never intended to perform the object crime. Criminal Term concluded that when agreement "is simulated and without an intent to perform, there is no concerted activity upon which a charge of criminal conspiracy can be founded” and, accordingly, dismissed the conspiracy counts of the indictment. We interpret article 105 of the Penal Law as authorizing a conspiracy prosecution of a particular defendant regardless of the culpability of the other coconspirators. Therefore, that part of the order which dismissed the conspiracy counts should be reversed.

On October 26, 1977 the defendant was arrested for his involvement in a conspiracy to steal diamonds owned by the City of New York and valued at more than $1,500. The defendant was subsequently indicted for (1) conspiracy in the second degree, (2) conspiracy in the third degree, (3) attempted criminal possession of stolen property in the first degree and (4) criminal solicitation in the second degree (two counts).

The first conspiracy count alleges that the defendant, "with the intent that conduct constituting * * * robbery in the second degree be performed, agreed with Joseph Coll and Ernest Colellie, to engage in and cause the performance of such conduct.” The count then recites two overt acts allegedly performed by the defendant in furtherance of committing the substantive crime.

The second conspiracy count alleges that the defendant "with the intent that conduct constituting * * * criminal possession of stolen property in the first degree be performed, agreed with Joseph Coll and Ernest Colellie, to engage in and cause the performance of such conduct.” This count recites the same overt acts as were charged in the first conspiracy count.

Joseph Coll is an undercover New York City police officer and Ernest Colellie is a confidential police informant. Neither Coll nor Colelli had any intention of committing the underlying substantive crimes. Instead, they merely feigned agreement for law enforcement purposes.

As part of an omnibus motion, the defendant sought the dismissal of the two conspiracy counts. The defendant essentially argued that neither Coll nor Colellie ever intended to commit the underlying substantive crimes; that absent a mutual intent there can be no criminal meeting of the minds; and that therefore, there can be no conspiratorial agreement. As noted, Criminal Term accepted this position. We do not.

Prior to the revision of the Penal Law (L 1965, ch 1030), there is no doubt that the defendant would have prevailed in his contentions. At that time, conspiracy was simply and traditionally defined as a combination of two or more persons to commit an illegal act (former Penal Law, §§ 580, 580-a). Essential to the traditional formulation of conspiracy was the participation of at least two persons who shared the prescribed mens rea and joined together to commit the substantive offense. Pursuant to that formulation, if a defendant’s sole coconspirator had been acquitted then, as a matter of law, the defendant must also have been acquitted. Under this doctrine, it would be impossible for the instant defendant to be guilty of conspiracy because he combined with no other person who shared his criminal intent. Thus, the defendant merely acted alone and this cannot constitute conspiracy because "[i]t is impossible in the nature of things for a man to conspire with himself’ (see Morrison v California, 291 US 82, 92).

The traditional doctrine has been characterized as the "bilateral approach” because of its dependence on the existence of at least two conspirators in determining the guilt of any single conspirator. However, in the last two decades, a new approach has been suggested which focuses solely upon the particular defendant, regardless of the culpability of the co-conspirators. This "unilateral approach” is exemplified by the Model Penal Code (10 Uniform Laws Ann., §§ 5.03, 5.04).

The basic elements of conspiracy are the same under either formulation, but by "concentrating on individual, rather than group, liability, the guilt of a particular actor is made independent of that of his co-conspirator(s). Such treatment is important when, for example, defendant’s only co-conspirator (a) is legally irresponsible or immune or incapable of committing a particular offense, (b) has feigned agreement, usually as part of some law enforcement scheme, or (c) is unknown, unapprehended, unindicted, unconvicted, or acquitted. A unilateral definition of conspiracy means that none of these circumstances will preclude defendant’s conviction where the evidence is otherwise sufficient” (Conspiracy: Statutory Reform Since the Model Penal Code, 75 Col L Rev 1122, 1136-1137).

The instant appeal involves situation (b) above, i.e., the other participants have feigned agreement. Dispositive of whether the conspiracy indictment may be sustained is whether the New York Revised Penal Law (Penal Law, art 105), has retained the bilateral approach or whether the unilateral approach has been adopted. The question has not previously been directly confronted by a New York appellate court. It is noted that some appellate decisions (see, e.g., People v Mackell, 47 AD2d 209, affd 40 NY2d 59) contain bilateral characterizations of conspiracy. However, those cases do not deal with the precise issue here raised. While several trial courts have thoroughly and analytically considered the issue, they have reached disparate outcomes. People v Lanni (95 Misc 2d 4) exemplifies those decisions which conclude that New York has adopted the unilateral approach and has accordingly upheld conspiracy indictments, whereas People v Hanley (92 Misc 2d 465, 468) typifies those cases which conclude that there has been no departure from the rule that "there must be a corrupt agreement between two or more individuals each possessing the prescribed mens rea”. Our review of the criminal character of conspiracy, and analysis of the applicable New York statutes, especially as they compare to the Model Penal Code, leads to the conclusion that New York has adopted the unilateral approach.

The crime of conspiracy is as ancient as the common law, yet "[t]he modern crime of conspiracy is so vague that it almost defies definition” (Krulewitch v United States, 336 US 440, 446). Central to the crime of conspiracy is the agreement to commit some other, substantive crime. More fundamentally, the basis of conspiratorial liability is not to punish the agreement per se, but rather, like other inchoate crimes, to punish the firm purpose to commit a substantive crime, while hopefully preventing the actual commission thereof. Although constituted by agreement, the crime of conspiracy is directed at the intended result of the agreement. As noted by Mr. Justice Oliver Wendell Holmes in United States v Kissel (218 US 601, 607): "It is true that the unlawful agreement satisfies the definition of the crime, but it does not exhaust it.”

The most pervasive aspect of conspiracy is its status as an inchoate crime. Like attempt and solicitation, conspiracy is directed at conduct which is preparatory to the commission of a substantive offense. However, liability for conspiracy attaches at a much earlier stage than does liability for attempt or solicitation. Consequently, particular caution is required in establishing liability for conspiracy.

An essential element of every conviction for conspiracy in New York, regardless of degree, is that a person with intent to commit a substantive crime, agrees with another to commit such crime (see Penal Law, art 105). In the context of the early stage of attaching criminal liability, the element of agreement is required to identify the manifestation of the firm criminal purpose to commit a substantive crime. Thus, the "act” of agreeing is concrete and unambiguous as an expression of each actor’s intent to violate the law. Like other inchoate crimes, the raison d’etre of conspiracy is the underlying substantive crime. Thus, the agreement itself must be to "engage in or cause the performance” of a substantive crime. Furthermore, the statutory grading system makes the degree of conspiratorial liability contingent upon the grade of the substantive crime sought to be committed. From this perspective, the mens rea of conspiracy is to agree with one or more persons to perform a substantive criminal act. The fact of agreement serves only to unequivocally establish a particular actor’s intent to commit the object crime by acting with others.

The identity and degree of participation by the other persons are wholly irrelevant. Also irrelevant are the niceties of contract law concerning when an agreement is consummated (e.g., meeting of the minds). It is the individual who is prosecuted and necessarily it is the individual who must have the prescribed mens rea. The requisite intent is to join with others to commit a substantive crime. If an individual believes he has so joined, it is sufficient to establish complicity, regardless of the actual fact of agreement. Such mistake of fact certainly does not relieve the individual of criminal liability (Penal Law, § 15.20). If the individual defendant misapprehends the true intent of the other persons with whom he sought to join, it may have an adverse effect on the successful accomplishment of committing the underlying crime, but it does not detract from the culpable mental state of the defendant. "[T]he major basis of conspiratorial liability, the unequivocal evidence of a firm purpose to commit a crime, remains the same.” (The Treatment of Inchoate Crimes in the Model Penal Code of the American Law Institute, 61 Col L Rev 957, 966.)

The above conceptualization is not inconsistent with the aspect of conspiracy which seeks to punish group activity. It is believed that the act of combining to commit a crime is more dangerous than an individual’s effort because of the increased likelihood that the substantive crime will be committed. The perceived danger is increased because of the psychological and practical effects of combination. But if an individual may himself accomplish the criminal objective, the mere belief that combination has occurred is sufficient to have produced the undesirable effects. Certainly, the culpable actor’s expectations are aroused and his criminal resolve will be strengthened. The mere appearance of group support may be sufficient to increase the likelihood that the culpable actor will himself attempt to accomplish the criminal objective. This is particularly so in the instant situation where, barring the serious problems of entrapment, it appears that the individual defendant is the originator of the criminal plan and the one most anxious to see the successful completion of the criminal objective.

One result of the above conceptualization is the unilateral approach to conspiracy. The focus of the unilateral approach is to prosecute each defendant for the person’s participation in the criminal conspiracy. Thus, if an individual has the requisite mens rea and does, albeit from his perspective, agree with others and commits an overt act in furtherance of performing the substantive crime, then there is no persuasive reason why that individual should escape criminal sanction. Although departing from traditional formulations of conspiracy, the unilateral approach is completely compatible with the primary principles of conspiracy as an inchoate crime.

Turning to the applicable statutes, the defendant was indicted for violating sections 105.05 and 105.10 of the Penal Law. We note that at the time of the indictment, these sections referred to conspiracy in the third and second degrees, respectively; however by chapter 422 of the Laws of 1978, two new degrees of conspiracy were added, resulting in the redenomination of sections 105.05 and 105.10 to conspiracy in the fifth and fourth degrees, respectively. The sole distinction between the two grades of conspiracy is the grade of the underlying substantive offense sought to be performed. As relevant to the instant case, the statutes essentially provide that "a person is guilty of conspiracy * * * when, with intent that conduct constituting a felony be performed, he agrees with one or more persons to engage in or cause the performance of such conduct” (Penal Law, § 105.05; see, also, Penal Law, § 105.10). This departs from the prior New York definition of "[i]f two or more persons conspire” (former Penal Law, §§ 580, 580-a). The distinction between these two definitions is that the former law defined conspiracy in terms of what two or more people did, whereas the present law defines conspiracy in terms of what the individual defendant does. The revised statute is similar to the parallel provision of the Model Penal Code (10 Uniform Laws Ann.):

"5.03. Criminal Conspiracy

"(1) Definition of Conspiracy. A person is guilty of conspiracy with another person or persons to commit a crime if with the purpose of promoting or facilitating its commission he:

"(a) agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime; or

"(b) agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime.”

In their article The Treatment of Inchoate Crimes in the Model Penal Code of the American Law Institute (61 Col L Rev 957), Professors Wechsler (Chief Reporter of the Model Penal Code) Jones and Korn (Special Consultants for the Model Penal Code), state that the above definition fully establishes a unilateral approach to conspiracy prosecutions. As previously noted, such an approach anticipates the successful prosecution of an individual, even though all his supposed coconspirators had merely feigned agreement (61 Col L Rev 957, 966). The New York statute now employs a definition of conspiracy which is analogous to the Model Penal Code definítion. Consequently, it must be inferred that the effect of such definition, i.e., the unilateral approach, has also been adopted.

This precise analysis was adopted by the Supreme Court of Minnesota in State v St. Christopher (305 Minn 226), which involved the same basic issue which we seek to resolve. Prior to the amendment of their penal code, Minnestoa, like New York, defined conspiracy as "[WJhen two or more persons shall conspire: (1) To commit a crime” (Minn St 1961, § 613.70). However, the revised statute defines conspiracy in terms analogous to the Model Penal Code: "Whoever conspires with another to commit a crime and in furtherance of the conspiracy one or more of the parties does some overt act in furtherance of such conspiracy may be sentenced as follows” (Minn St § 609.175, subd 2). The Minnesota Supreme Court concluded that the wording of the Minnesota statute was "phrased in unilateral terms similar to those used in the Model Penal Code” (State v St. Christopher, supra, p 235) and held that under the unilateral approach the defendant could be properly convicted of conspiracy even though the only coconspirator had feigned agreement and never intended to commit the object crime. In now adopting a similar result, we note that the New York statute more closely tracks the Model Penal Code definition of conspiracy than does the Minnesota statute.

Any doubt that New York has adopted a unilateral approach to conspiracy is dissolved by section 105.30 of the Penal Law, which provides: "It is no defense to the prosecution for conspiracy that, owing to criminal irresponsibility or other legal incapacity or exemption, or to unawareness of the criminal nature of the agreement or the object conduct or of the defendant’s criminal purpose or to other factors precluding the mental state required for the commission of conspiracy or the object crime, one or more of the defendant’s co-conspirators could not be guilty of conspiracy or the object crime.” In the Fourth Interim Report of the State of New York Temporary Commission on Revision of the Penal Law and Criminal Code (Feb. 1, 1965), the Revision Commission made the following comment on section 105.30 of the Penal Law (NY Legis Doc, 1965, No. 25, pp 25-26): "A new 'no defense’ section has been added (N § 105.30), providing that lack of criminal responsibility or lack of culpability on the part of a person or persons with whom a defendant 'agrees’ or 'conspires’ do not absolve the defendant from liability for conspiracy” (emphasis supplied).

The analogous Model Penal Code provision is section 5.04 (subd [1], pars [a] and [b]) which provides that (10 Uniform Laws Ann.):

"§ 5.04. Incapacity, Irresponsibility or Immunity of Party to Solicitation or Conspiracy

"(1) Except as provided in Subsection (2) of this Section, it is immaterial to the liability of a person who solicits or conspires with another to commit a crime that:

"(a) he or the person whom he solicits or with whom he conspires does not occupy a particular position or have a particular characteristic which is an element of such crime, if he believes that one of them does; or

"(b) the person whom he solicits or with whom he conspires is irresponsible or has an immunity to prosecution or conviction for the commission of the crime.”

The thrust of the Model Penal Code provision is that the liability of a particular defendant will not be affected by the legal incapacity of the other coconspirators and that for purposes of inchoate crimes "the defendant’s culpability is to be measured by the circumstances as he believes them to be” (The Treatment of Inchoate Crimes in the Model Penal Code of the American Law Institute, 61 Col L Rev 957, 1019).

The language of the New York statute clearly establishes that New York has prohibited any defense premised upon the legal incapacity of a particular defendant’s coconspirators. Thus, the statute expressly refers to such factors as the coconspirator’s: criminal irresponsibility; other legal incapacity or exemption; and unawareness of the criminal nature of the agreement, the object conduct, or the defendant’s criminal purpose, as not constituting a defense. However, the statute goes further and includes the catchall language that it is no defense that there are "other factors precluding the [coconspirator’s] mental state required for the commission of conspiracy or the object crime” (Penal Law, § 105.30). The only possible interpretation of this language is that a particular defendant may not raise a defense to a prosecution for conspiracy which is premised upon the nonliability of his coconspirators because they did not have the requisite mens rea. In the instant case, the defendant’s coconspirators were agents of the New York City police and, as an incident to the commendable performance of their duty, they were essentially precluded from forming the requisite "mental state required for the commission of conspiracy or the object crime”. However, this does not necessarily preclude the defendant from forming the requisite criminal mental state or from verily believing that he had successfully conspired to commit the object crimes.

Pursuant to this statutory construction, the defendant may be found guilty of conspiracy even though neither Coll or Colellie possessed the prescribed mental state required for the commission of conspiracy or the object crimes. This, of course, does not relieve the prosecution from its formidable burden of proving beyond a reasonable doubt that the defendant, from the defendant’s perspective, agreed with another to commit the object crimes, that the defendant intended that the object crimes be committed, and that an overt act in furtherance of the conspiracy was committed by him.

Based on the above analysis, so much of the order dismissing the conspiracy counts of the indictment should be reversed and those counts reinstated. We, therefore, do not reach the other contentions raised on appeal.