People v. Tavormina , 257 N.Y. 84 ( 1931 )

The rule that the misdemeanor of conspiracy is merged in a felony committed in pursuance of the conspiracy is founded upon technical considerations that are now obsolete. Since the rule now serves no useful purpose and tends to obstruct justice, it should be abandoned. The question still remains whether that abandonment should be decreed by the Legislature or the courts.

Crimes are defined by the Penal Law. The courts may not enlarge the definition formulated by the Legislature. When the definition of conspiracy was formulated by the Legislature the rule that a misdemeanor was merged in a felony, committed in pursuance thereof, had the effect of making the conspiracy merely a step in the consummated felony. It was not a separate and distinct crime. It may be that when the rule of merger is abandoned, the legislative definition of the crime of conspiracy is wide enough to make the conspiracy a separate and distinct crime. That question is not now before us, unless abandonment of the rule of merger must be founded upon a determination that a conspiracy is a separate and distinct crime from the crime which was the purpose of the conspiracy.

An attempt to commit a crime is concededly not separate and distinct from the consummated crime. No one would contend that there might be trial and conviction of an attempt to commit a crime after a conviction for the consummated crime. Nevertheless, the Legislature has provided that there should be no merger of attempt to commit a crime in the consummated crime. (See Penal Law, art. 22.) There may be a conviction of the lesser crime, though the proof may show that a greater crime has been accomplished.

A conspiracy to accomplish certain specified wrongful ends is a crime though these ends may be other than to commit a crime. (Penal Law, § 580.) There, certainly, the crime of the conspiracy is separate and distinct from a consummated crime committed merely as an overt act or step in accomplishing the purpose of the conspiracy. So, too, a conspiracy to commit one crime is by its nature and definition separate and distinct from another and different crime accomplished in the course of the conspiracy. There, abandonment of the rule of merger and of crime is not complicated by any question of whether the conspiracy and the consummated crime are separate and distinct crimes.

In such cases it is plain that the rule of merger of the conspiracy in a felony accomplished in its course was in no manner founded upon any view that the conspiracy was not separate and distinct from the felony. The rule may be abandoned in a case where the consummated crime represents the accomplishment of the conspiracy itself, though in such case we should assume that the Legislature did not intend to define the conspiracy as a separate and distinct crime. Even then, reason would point to the abandonment of the outworn rule. Then the conspiracy would be analogous to a lesser degree of the consummated crime, and should be treated accordingly. Allegation or proof of consummated crime might then be given the same effect as the Legislature has indicated in its formulation of the rules governing prosecution for an attempt to commit a crime. Whether the Legislature intended that a conspiracy and its successful accomplishment might, if the obstacle of the rule of merger is removed by the courts, be punished as separate and distinct crimes, is not now before us. I concur with the majority of the court in the result of the opinion, but in the result only if the opinion is to be construed as holding that the crimes are separate and distinct.

CARDOZO, Ch. J., POUND, CRANE and O'BRIEN, JJ., concur with HUBBS, J.; LEHMAN, J., concurs in result in separate opinion in which KELLOGG, J., concurs.

Judgments reversed, etc.