The PEOPLE of the State of New York, Respondent,
Samuel LUBOW and Oscar Gissinger, Appellants
Court of Appeals of New York
29 N.Y.2d 58 (1971)
[p. 62] BERGAN, Judge.
The revised Penal Law creates a new kind of offense, simpler in structure than an attempt or a conspiracy, and resting solely on communication without need for any resulting action (art. 100, Criminal Solicitation, part of tit. G, Anticipatory Offenses, L.1965, ch. 1030) Consol.Laws, c. 40. Attempts to commit crimes and conspiracies are continued with some changes as crimes and these, too, are grouped within title G as 'Anticipatory Offenses' (art. 105, Conspiracies; art. 110, Attempts).
The basic statutory definition of criminal solicitation is that with intent that another person shall 'engage in conduct constituting a crime' the accused 'solicits, requests, commands, importunes or otherwise attempts to cause such other person to engage in such conduct'. This basic definitory language is continued through three grades of solicitation, the gravity depending on what crime the conduct sought to be induced would effectuate.
If the conduct would be 'a crime' it is criminal solicitation in the third degree, a 'violation' (s 100.00); if the conduct would be 'a felony' it is criminal solicitation in the second degree, a class A misdemeanor (s 100.05); and if the conduct would be murder or kidnapping in the first degree it is criminal solicitation in the first degree, a class D felony (s 100.10).
As it has been noted, nothing need be done under the statute in furtherance of the communication ('solicits, commands, importunes') to constitute the offense. The communication itself with intent the other person engage in the unlawful conduct is enough. It needs no corroboration.
And an attempt at communication which fails to reach the other person may also constitute the offense for the concluding clause 'or otherwise attempts to cause such other person to engage in such conduct' would seem literally to embrace as an attempt an undelivered letter or message initiated with the necessary intent.
Appellants have been convicted after a trial by a three-Judge panel in the Criminal Court of the City of New York of violation of section 100.05 which describes solicitation to commit a felony. The information on which the prosecution is based is made by complainant Max Silverman. It describes the charge as criminal solicitation and states that 'defendants attempted to cause [p. 63] deponent to commit the crime of grand larceny' in that they 'attempted to induce the deponent to obtain precious stones on partial credit with a view towards appropriating the property to their own use and not paying the creditors, said conduct constituting the crime of larceny by false promise'.
Although the Penal Law section number is not stated in the information, it was clearly stated in court before the opening of the trial that the charge was a violation of section 100.05 and the facts alleged that the inducement was to commit grand larceny, a felony, which gave adequate notice of the nature of the offense involved.
The proof in support of the charge, if factually accepted by the trial court, as it was by a majority of the Judges (one dissenting), was sufficient to warrant conviction. The Appellate Term affirmed unanimously.
The evidence showed that complainant Silverman and both defendants were engaged in the jewelry business. It could be found that defendant Lubow owed Silverman $30,000 for diamonds on notes which were unpaid; that Lubow had told Silverman he was associated with a big operator interested in buying diamonds and introduced him to defendant Gissinger.
It could also be found that in October, 1967, Silverman met the two defendants together at their office, demanded his money, and said that because of the amount owed him he was being forced into bankruptcy.
Silverman testified in response to this Lubow said 'Well, let's make it a big one, a big bankruptcy', and Gissinger said this was a good idea. When Silverman asked 'how it is done' he testified that Lubow, with Gissinger participating, outlined a method by which diamonds would be purchased partly on credit, sold for less than cost, with the proceeds pyramided to boost Silverman's credit rating until very substantial amounts came in, when there was to be a bankruptcy with Silverman explaining that he had lost the cash gambling in Puerto Rico and Las Vegas. The cash would be divided among the three men. The gambling explanation for the disappearance of cash would be made to seem believable by producing credit cards for Puerto Rico and Las Vegas. Silverman testified that Lubow said 'we would eventually wind up with a quarter of a million dollars each' and that Gissinger said 'maybe millions'.
[p. 64] Silverman reported this proposal to the District Attorney in October, 1967 and the following month a police detective equipped Silverman with a tape recorder concealed on his person which was in operation during conversations with defendants on November 16 and which tends to substantiate the charge. The reel was received in evidence on concession that it was taken from the machine Silverman wore November 16.
A police detective testified as an expert that a 'bust out operation' is a 'pyramiding of credit by rapid purchasing of merchandise, and the rapid selling of the same merchandise sometimes 10 and 20 per cent the cost of the merchandise itself, and they keep selling and buying until they establish such a credit rating that they are able to purchase a large order at the end of their operation, and at this time they go into bankruptcy or they just leave'.
There thus seems sufficient evidence in the record to find that defendants intended Silverman to engage in conduct constituting a felony by defrauding creditors of amounts making out grand larceny and that they importuned Silverman to engage in such conduct. Thus the proof meets the actual terms of the statute.
The statute itself is a valid exercise of legislative power.
Commentators closely associated with the drafting of the Model Penal Code
of the American Law Institute, from which the New York solicitation statute
stems, have observed: 'Purposeful solicitation presents dangers calling
for preventive intervention and is sufficiently indicative of a disposition
towards criminal activity to call for liability. Moreover, the fortuity
that the person solicited does not agree to commit or attempt to commit
the incited crime plainly should not relieve the solicitor of liability,
when otherwise he would be a conspirator or an accomplice.'[n. 1]
1 Herbert Wechsler, Chief Reporter, Model Penal Code; William Kenneth Jones, Special Consultant, Model Penal Code, and Harold L. Korn, Special Consultant, Model Penal Code, The Treatment of Inchoate Crimes in the Model Penal Code of the American Law Institute: Attempt, Solicitation, and Conspiracy, 61 Col.L.Rev. 571, 622.Solicitation to commit a felony was a misdemeanor at common law (People v. Bush, 4 Hill 133, 135; Rex v. Higgins, 2 East 5). Summarizing this historical fact Judge Cardozo observed: 'So at common law, incitement to a felony, when it did not reach the stage of an attempt, was itself a separate crime, and like [p. 65] conspiracy, which it resembled, was a misdemeanor, not a felony' (People v. Werblow, 241 N.Y. 55, 66, 148 N.E. 786, 791, citing Higgins and Rex v. Gregory, L.R. 1 C.C.R. 77).
But as People v. Bush demonstrates, the solicitation in early New York cases was treated as closely related to an attempt. There defendant asked another to burn a barn and gave him a match for that purpose. This principle was followed to some extent (e.g., People v. Bloom, 149 App.Div. 295, 296--299, 133 N.Y.S. 708, 709--711) but there were fundamental difficulties with it under the concept of attempt and it seems not to have been followed after Bloom.
Although this Penal Law provision is the first statutory enactment in New York, there have been statutes aimed at criminal solicitation in some other States, notably California.
In commenting on the criminal solicitation enactment of article
100, two lawyers who were active in the work of the State Commission on
Revision of the Penal Law and Criminal Code which prepared the present
statute observed that article 100 'closes that gap' for those who believe,
as apparently the commission and the American Law Institute did, that 'solicitation
to commit a crime involves sufficient culpability to warrant criminal sanctions'.[n.
2 Richard G. Denzer, Executive Director of the Commission on Revision of the Penal Law and Criminal Code, and Peter McQuillan, Counsel to the Commission, Practice Commentary to Penal Law, art. 100, McKinney's Cons.Laws of N.Y., Book 39, Penal Law, p. 169.There are, however, potential difficulties inherent in this penal provision which should be looked at, even though all of them are not decisive in this present case. One, of course, is the absence of any need for corroboration. The tape recording here tends to give some independent support to the testimony of Silverman, but there are types of criminal conduct which might be solicited where there would be a heavy thrust placed on the credibility of a single witness testifying to a conversation. Extraordinary care might be required in deciding when to prosecute; in determining the truth; and in appellate review of the factual decision.
One example would be the suggestion of one person to another that he commit a sexual offense; another is the suggestion that he commit perjury. The Model Penal Code did not require corroboration; [p. 66] but aside from the need for corroboration which is traditional in some sexual offenses, there are dangers in the misinterpretation of innuendos or remarks which could be taken as invitations to commit sexual offenses. These are discussed by Wechsler- Jones-Korn (61 Col.L.Rev., p. 623, Supra) with the comment that 'it is a risk implicit in the punishment of almost all inchoate crimes'.
In two opinions for the California Supreme Court, Justice Traynor has analyzed that State's criminal solicitations statute (Penal Code, s 653f; Benson v. Superior Ct. of Los Angeles County, 57 Cal.2d 240, 18 Cal.Rptr. 516, 368 P.2d 116 (1962), and People v. Burt, 45 Cal.2d 311, 288 P.2d 503 (1955)).
The first case was for solicitation to commit perjury and the second for solicitation to commit extortion.
The California statute is based on a specific list of serious crimes to which criminal solicitation expressly applies; but as to all of them the statute requires that the offense 'must be proved by the testimony of two witnesses, or of one witness and corroborating circumstances'.
The basic public justification for legislative enactment is, however, very similar to New York's and was developed in the Burt opinion: 'Legislative concern with the proscribed soliciting is demonstrated not only by the gravity of the crimes specified but by the fact that the crime, unlike conspiracy, does not require the commission of any overt act. It is complete when the solicitation is made, and it is immaterial that the object of the solicitation is never consummated, or that no steps are taken toward its consummation.' The California Legislature was concerned 'not only with the prevention of the harm that would result should the inducements prove successful, but with protecting inhabitants of this state from being exposed to inducements to commit or join in the commission of the crimes specified' (45 Cal.2d 311, Supra, p. 314, 288 P.2d 503, p. 505).
Another potential problem with the statute is that it includes an attempt to commit unlawful solicitation, i.e., solicits, etc., 'or otherwise attempts to cause' the conduct. This has the same effect as the Model Penal Code, but the language there is different. The code spells the purpose out more specifically that: 'It is immaterial * * * that the actor fails to communicate with the person he solicits to commit a crime if his conduct [p. 67] was designed to effect such communication' (Model Penal Code, s 5.02, subd. (2), Tent. Draft No. 10, as analyzed by Wechsler-Jones-Korn, op. cit., p. 621). This could be an attempt in the classic sense and might be committed by a telephone message initiated but never delivered. The present Penal Law, stated in different language, has the same effect.
Appellants raise a point based on the reduplicative overplay of section 100.00 which is a 'violation' and section 100.05, of which they have been convicted, a 'class A misdemeanor'.
Literally, the same act could fall within either section; and specifically the acts charged to appellants could come within either.
Section 100.00 relates to solicitation of another person to 'engage in conduct constituting a crime' and section 100.05 to 'engage in conduct constituting a felony'.
Since a felony is a crime, whenever a charge is made based on solicitation to commit felony, it would come within both sections. It is not entirely clear why the statute was drawn this way. The commentators Denzer and McQuillan observe that although section 100.00 'embraces solicitation to commit any crime from a class B misdemeanor up to a class A felony, its principal application would normally be to those solicitation offenses not covered by the higher degrees' (op. cit., pp. 169--170).
Whatever may be said of the abstract merits of a choice of prosecution based on the same act between a higher or lesser degree of crime, it seems to have been decided that prosecution for the higher degree is permissible (People v. Bord, 243 N.Y. 595, 154 N.E. 620; see, also, People v. Bergerson, 17 N.Y.2d 398, 401, 271 N.Y.S.2d 236, 237--238 218 N.E.2d 288, 289--290; People v. Hines, 284 N.Y. 93, 105, 29 N.E.2d 483, 489).
* * *
[p. 69] The judgment should be affirmed.
FULD, C.J., and SCILEPPI, BREITEL, JASEN and GIBSON, JJ., concur with BERGAN, J.
BURKE, J., concurs in result only.