The PEOPLE of the State of New York, Respondent,
OPINION OF THE COURT
COOKE, Chief Judge.
Two trials are considered here. Out of one evolve appeals by defendants McGee, Edwards and Tolliver, who were convicted, after a jury trial, of one count of conspiracy in the third degree and 28 counts of bribery in the second degree. From the other, arise appeals by defendants Quamina and Waters, who were convicted, upon a jury verdict, of one count of conspiracy in the third degree and 10 counts of bribery in the second degree. The judgments of conviction were affirmed by five separate orders of the Appellate Division and leave to appeal to this court was granted. For the reasons that follow, the order affirming the judgment of conviction of McGee should be modified to the extent of reversing the conviction on the bribery counts and dismissing the indictment as to those counts, and as so modified, affirmed. The remaining orders affirming the convictions of Quamina, Waters, Edwards and Tolliver should be affirmed.
At the joint trial of Quamina and Waters, the People's theory was that the defendants proposed an arrangement whereby Rochester Police Officers Gerald Luciano and Gustave J. D'Aprile, members of the Vice Squad, would be paid to prevent the arrest of defendants' gambling associates while enforcing the law against competitors. The evidence at trial consisted of the testimony of Luciano, D'Aprile, defendants and others, as well as tape recordings of conversations between the officers and defendants.
In an effort to enlist Quamina as an informant, Luciano suggested that a meeting be arranged to discuss organized crime activities in the black community. Quamina expressed interest, mentioning that he and Jake Waters had previously considered meeting with the officers. Quamina ultimately arranged a meeting for the morning of December 9, 1973. At [p. 55] this and other prearranged meetings, D'Aprile was equipped with a hidden microphone for monitoring and recording. The officers sought information concerning mob activities in the Rochester area, and Quamina and Waters complained of pressures exerted by one Lippa, a purported mob leader, on black numbers operators. Both Quamina and Waters indicated that blacks should have some control of the numbers operation in their own community and discussed the formation of a black organization to replace the Lippa organization. They stressed the need for police protection, noting that profits would be enhanced if police pressure were exerted on competing operators. The officers were offered monetary and other benefits in exchange for their assistance.
At a subsequent meeting on March 3, the agreement to pay the officers for their services was reaffirmed with a minor modification: until the plan became fully operative, the officers were to be paid for each arrest rather than at a weekly rate. A list of competing numbers operators to be arrested was given to the officers. Five arrests were made based on the information supplied. At a meeting in late April, defendants supplied the officers with a list of operators who were not to be arrested. At an earlier April meeting Quamina and Waters each gave the officers $100; at two meetings in July, Waters paid a total of $200.
The defendants asserted the defense of coercion under section 200.05 of the Penal Law and the affirmative defense of entrapment under section 40.05 of the Penal Law. The defense presented evidence that in the fall of 1974, Waters complained to a friend that he had been shaken down by some police officers and repeated that claim to an official of the State Police and a Deputy Attorney- General. Quamina had made similar complaints. At trial, both Quamina and Waters testified that their fear of being arrested if they did not co-operate was their motivation for meeting and paying the officers.
Defendants McGee, Edwards and Tolliver were later brought into the operation. In October, 1974, Quamina arranged an organizational meeting at which he, Edwards, Tolliver and the officers were present. Edwards, proclaiming himself spokesman for those present as well as McGee, articulated the group's desire to start a black organization, and suggested that the officers could make money if they wanted [p. 56] to be "outlaws". At a subsequent meeting with Edwards, the officers were told that they would receive a percentage of the receipts from assigned numbers writers in exchange for police protection. On November 13, there was a meeting with Edwards and McGee at which the group discussed the scope of police activity, as well as weekly payments to the police. No payments were made at that meeting. During the meeting, McGee indicated that he was in accord with Edwards' goals. At various intervals during the ensuing months, Edwards made payments to the officers.
As in the trial of the other defendants, Edwards, Tolliver and McGee asserted coercion and entrapment defenses. According to Edwards, the officers threatened to put Edwards out of business if he did not agree to their terms. The parties finally agreed upon the sum of $100. Edwards admitted making payments but asserted that he stalled on giving information. Pressure was allegedly applied to Tolliver when Edwards failed to keep his appointments in an attempt to end the relationship. Edwards testified that he had no income from gambling, that the officers were shaking down the defendants, and that Edwards had never bribed a police officer.
* * *
McGee argues that the Trial Judge erred in charging the jury that
he could be found guilty of the substantive offense of bribery by virtue
of his status as a conspirator. After determining that there was sufficient
evidence of an agreement among the defendants to go to the jury on the
conspiracy count, the court charged that each conspirator could be convicted
of bribery on the basis of acts of any one of the coconspirators committed
in furtherance of the conspiracy (see Pinkerton v. United States, 328 U.S.
640, 66 S.Ct. 1180, 90 L.Ed. 1489). The court also charged that McGee alone
could be convicted of the bribery if he solicited, requested, commanded,
importuned or intentionally aided another to engage in that offense (see
Penal Law, s 20.00). McGee is correct in his contention that the portion
of the charge concerning conspirator liability was erroneous. It is held
that liability for the substantive offense may not be independently predicated
upon defendant's participation in an [p. 57] underlying conspiracy. As
there was no evidence of McGee's complicity in the bribery counts submitted
to the jury,[n. 1] and thus no basis for accomplice liability, there must
be a reversal of the conviction of bribery and a dismissal of the indictment
as to those counts.
1. The trial court dismissed two bribery counts on the ground that there was no agreement on November 13 to pay the specific amount of $50 to each officer as charged in the indictment. The court determined, however, that there was sufficient evidence of an agreement among defendants and the remaining counts were submitted to the jury.
In rejecting the notion that one's status as a conspirator standing alone is sufficient to support a conviction for a substantive offense committed by a coconspirator, it is noted that the Legislature has defined the conduct that will render a person criminally responsible for the act of another. Conspicuously absent from section 20.00 of the Penal Law is reference to one who conspires to commit an offense. That omission cannot be supplied by construction. Conduct that will support a conviction for conspiracy will not perforce give rise to accessorial liability (compare Penal Law, s 105.05, with s 20.00). True, a conspirator's conduct in many instances will suffice to establish liability as an accomplice, but the concepts are, in reality, analytically distinct. To permit mere guilt of conspiracy to establish the defendant's guilt of the substantive crime without any evidence of further action on the part of the defendant, would be to expand the basis of accomplice liability beyond the legislative design.
The crime of conspiracy is an offense separate from the crime that is the object of the conspiracy. Once an illicit agreement is shown, the overt act of any conspirator may be attributed to other conspirators to establish the offense of conspiracy (cf. People v. Salko, 47 N.Y.2d 230, 417 N.Y.S.2d 894, 391 N.E.2d 976; People v. Sher, 68 Misc.2d 917, 329 N.Y.S. 202) and that act may be the object crime. But the overt act itself is not the crime in a conspiracy prosecution; it [p. 58] is merely an element of the crime that has as its basis the agreement (cf. People v. Hines, 284 N.Y. 93, 29 N.E.2d 483). It is not offensive to permit a conviction of conspiracy to stand on the overt act committed by another, for the act merely provides corroboration of the existence of the agreement and indicates that the agreement has reached a point where it poses a sufficient threat to society to impose sanctions (see 72 Harv.L.Rev. 920, 998; 16 Ford L.Rev. 275, 277). But it is repugnant to our system of jurisprudence, where guilt is generally personal to the defendant (see Sayre, Criminal Responsibility for the Acts of Another, 43 Harv.L.Rev. 689), to impose punishment, not for the socially harmful agreement to which the defendant is a party, but for substantive offenses in which he did not participate (Commonwealth v. Stasiun, 349 Mass. 38, 206 N.E.2d 672; see, generally, 56 Yale L.J. 371).
We refuse to sanction such a result and thus decline to follow
the rule adopted for Federal prosecutions in Pinkerton v. United States,
328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489, Supra. Accessorial conduct
may not be equated with mere membership in a conspiracy and the State may
not rely solely on the latter to prove guilt of the substantive offense.[n.
3. We are not unmindful of cases indicating that "(e)ach conspirator is liable * * * for the acts of every associate done in the effort to carry the conspiracy into effect" (e. g., People v. Collins, 234 N.Y. 355, 361, 137 N.E. 753, 755; see, also, People v. Luciano, 277 N.Y. 348, 14 N.E.2d 433; People v. Michalow, 229 N.Y. 325, 128 N.E. 228; People v. McKane, 143 N.Y. 455, 38 N.E. 950). Those cases, however, do not support extending the agency rationale to impose liability for the substantive offense solely on the basis of liability for the agreement. Indeed, closer examination of each of them reveals that the defendant had actively participated to a degree sufficient to impose accessorial liability.
* * *
Accordingly, the order of the Appellate Division in People v. McGee should be modified in accordance with this opinion by dismissing the bribery counts of the indictment and, as so modified, affirmed. The orders of the Appellate Division as to the other defendants should be affirmed.
JASEN, GABRIELLI, JONES, WACHTLER and FUCHSBERG, JJ., concur with COOKE, C. J.
MEYER, J., concurs in a separate opinion. [omitted]