113 Misc. 2d 462 | N.Y. Sup. Ct. | 1982
OPINION OF THE COURT
The defendant herein has been indicted for the crimes of conspiracy in the fifth degree (Penal Law, § 105.05) and criminal possession of stolen property in the first degree (Penal Law, § 165.50). The defendant has filed an omnibus motion which seeks the dismissal of the first conspiracy count of the indictment as facially defective (CPL 210.25, subd 1; 200.50, subd 7, par [a]), the dismissal of the indictment as unsupported by legally sufficient evidence (CPL 210.20, subd 1, par [b]; 210.30) and as having been voted upon improper legal principles (CPL 210.35, subd 5).
The court has inspected the minutes of the Grand Jury proceedings and finds the evidence legally sufficient to sustain the charges voted in each count of the indictment. The prosecutor’s charge on the law was complete and correct (CPL 210.20, subd 1, pars [b], [c]).
The court grants the defendant’s motion pursuant to CPL 210.25 (subd 1) (see CPL 210.20, subd 1, par [a]) to the
The indictment as drafted is not jurisdictionally defective, since it contains averments of fact “supporting every element of the offense charged and the defendant’s * * * commission thereof” (CPL 200.50, subd 7, par [a]). The crime charged, conspiracy in the fifth degree (Penal Law, § 105.05, subd 1), requires that the People plead and prove that the defendant “with intent that conduct constituting * * * a felony be performed * * *• agree[d] with one or more persons to engage in or cause the performance of such conduct” and that one of the conspirators committed an overt act in furtherance of the conspiracy (Penal Law, § 105.20). The indictment in fact, alleges that the defendant with intent to commit six different felonies conspired with over 40 named conspirators and others to commit the object crimes. The indictment sets forth the outline of the conspiracy in seven subsequent paragraphs and alleges 71 overt acts committed in furtherance thereof. Accordingly, the indictment does not suffer from lack of detail (cf. People v Iannone, 45 NY2d 589, 598-599; People v Jackson, 46 NY2d 721; People v Cohen, 52 NY2d 584).
Nor is it improper for the prosecution to allege in a single conspiracy count all of the object crimes which were the purpose of the conspiracy and all of the persons who combined for that purpose. “Where an offense may be committed by doing any one of several things, the indictment may, in a single count, group them together and charge the defendant with having committed them all, and a conviction may be had on proof of the commission of any one of the things, without proof of the commission of the
The indictment is, nevertheless, defective to the indicated extent since “the basic essential function of an indictment qua document is * * * to notify the defendant of the crime of which he stands indicted * * * It is beyond cavil that a defendant has a basic and fundamental right to be informed of the charges against him so that he will be able to prepare a defense. Hence the courts must exercise careful surveillance to ensure that a defendant is not deprived of this right” (People v Iannone, supra, at pp 598-599). An indictment which alleges facts superfluous to the charge against the defendant, even though otherwise technically sufficient, may be as uninformative as an indictment which fails to allege essential facts. The accused is entitled to “[a] plain and concise factual statement” which describes his conduct “with sufficient precision to clearly apprise [him] * * * of the conduct which is the subject of the accusation” (CPL 200.50, subd 7, par [a]).
In a conspiracy prosecution, it is essential that the prosecution plead and prove the object crimes which were the purpose of the agreement, since it is the essential nature of the agreement by which the culpability of the participants, the relevance of alleged overt acts, the admissibility of coconspirator’s statements and such issues as venue periods of limitation, and the degree of the offense are determined (see United States v Rosenblatt, 554 F2d 36, 38-39, and cases cited therein; Penal Law, art 105). Therefore, an indictment which alleges, in addition to those conspiratorial objectives and combinations with which the evidence sufficiently connects the accused, other objectives or combinations not justified, fails to provide the accused with a fair opportunity to prepare a defense.
As previously noted, the evidence before the Grand Jury was legally sufficient to warrant the conspiracy charge against the defendant. Conversations between the defendant and other members of the conspiracy, seized pursuant to court-ordered electronic surveillance, together with other testimony, established that the defendant agreed to sell a large quantity of garments stolen by burglary from a garment manufacturer, Lynn Stevens. (People v Salko, 47
There is another facet of the conspiracy with which the defendant is charged which is, in the court’s view, unsupported by the evidence. The alleged middlemen, operating as Melo Fashions, allegedly paid a detective Thomas Holland to provide confidential law enforcement information to protect the operation from investigation and the operatives from arrest. There is no evidence that the defendant participated in or had actual knowledge of this aspect of the conspiracy. Since the inference of defendant’s knowledge of the existence of others in the enterprise is justified by the essential nature of the conspiracy (United States v Agueci, supra, at p 827), and since bribery and bribe
Accordingly, for the foregoing reasons, that portion of the indictment which alleges an agreement to commit bribery and bribe receiving as objects of the conspiracy, and all references to Thomas Holland as a member of the conspiracy are deleted from the indictment, and the first count is sustained as modified.