130 Misc. 2d 191 | N.Y. Sup. Ct. | 1985
OPINION OF THE COURT
The instant proceeding involves 14 separate indictments. Of
This series of indictments arose out of an investigation into the use of coercive practices to force legal tenants from their apartments, allegedly for the commercial benefit of their landlords. A group of 21 people, led by Morris Lender and Hardmon Lambert (the Lender-Lambert group), was found to have moved from building to building in New York County over a period of five years, from 1979 to 1984, threatening, intimidating, menacing, assaulting and burglarizing tenants and otherwise destroying the property of established residents, resulting in the total or almost total depopulation of at least 20 buildings. There is reasonable cause to believe that Lender and Lambert directed these activities pursuant to agreements with owners of each building, whereby a fixed price would be paid for each tenant who surrendered an apartment as a result of the group’s practices. Lender, Lambert and all but two of the apprehended members of their group have pleaded guilty to conspiracy, coercion, burglary and related charges.
Twelve of the 14 remaining defendants are owners of buildings vacated or attempted to be vacated by the Lender-Lambert group. Each of these defendants is charged with having conspired with the Lender-Lambert group to commit coercion and other crimes by forcing their legal tenants to abandon their apartments, and with multiple counts of coercion and grand larceny in regard to each of their individual tenants. The People concede that there is insufficient evidence to link all 12 landlords together in a single conspiracy. There is no proof that any landlord was motivated by anything other than his own economic interest, or shared any intent to commit crimes against tenants other than those as to whom he had such an interest. The evidence suggests that each owner or group of owners dealt directly and separately with Lender and Lambert, according to building. No one aspect of the operation depended upon or even related to the success of any other, beyond consideration of the availability of the Lender-Lambert group. It cannot be said, therefore, that each landlord who employed the Lender-Lambert group of necessity knew the
This was, rather, a wheel conspiracy, in which the landlords were the " 'separate spokes meeting in a common center’ ” which was the Lender-Lambert group, without any "rim of the wheel to enclose the spokes.” (Kotteakos v United States, 328 US 750, 755 [1946].) Neither actual knowledge that other landlords were using Lender-Lambert (see, e.g., United States v Varelli, 407 F2d 735, 743 [7th Cir 1969]), nor the similarity of methods and purposes of the various landlord-Lender-Lambert arrangements (United States v Varelli, supra, at p 743; United States v Baxter, 492 F2d 150, 158-159 [9th Cir 1973]) establishes such a linkage. What is required is evidence of a commonalty of interest in addition to knowledge and method.
There were subsidiary groups of landlords as to whom such an interest has been shown. Specifically, and by way of illustration, the defendants Leisner and Marx (indictment No. 8144/84) not only were aware of each other’s use of the Lender-Lambert group to vacate buildings each owned separately, they also jointly purchased, and employed Lender-Lambert to vacate, a series of six buildings from December 1978 to July 1980. These defendants thus acted together to employ the Lender-Lambert group to vacate buildings for their mutual benefit. The existence of their partnership extended the economic benefits derived from each defendant’s use of the scheme to both. This mutuality of economic interest augmented the influence of each defendant in regard to the Lender-Lambert group and enabled them to coordinate their efforts. In other words, it established a rim between the Leisner and Marx spokes sufficient to bring them together with the Lender-Lambert group in a single conspiracy. (See, e.g., United States v Tilton, 610 F2d 302, 307 [5th Cir 1980]; United States v Bernstein, 533 F2d 775, 791 [2d Cir 1976], cert denied 429 US 998; United States v Friedman, 445 F2d 1076, 1080 [9th Cir 1971]; United States v Flick, 516 F2d 489, 494 [7th Cir 1975], cert denied 423 US 931.)
The People’s position is that although there were seven
The court finds, however, that there is a significant variation between the recent amendment to CPL 200.40 and Federal statutes. The applicable Federal rule states: "Two or more defendants may be charged in the same indictment * * * if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses.” (Fed Rules Crim Pro, rule 8 [b].) Under this Federal rule, courts have permitted joinder of concededly separate but "related” conspiracies involving some of the same defendants. (See, e.g., Series of Acts or Transactions, Ann., 62 ALR Fed 106, 117, § 7.) The Supreme Court has described "related” conspiracies as "adventures of like character” having separate "though similar, purposes”, as opposed to "the common purpose of a single enterprise” which constitutes a single conspiracy. (Kotteakos v United States, 328 US 750, 769, supra.) The required relationship has been characterized as "different from an overall common purpose required for a finding of a single conspiracy. The nexus, as stated in Rule 8, is at least concerned with the identity of parties to the transaction, the character of the transaction, the modus operand!, the area of operations, the lapse of time, etc.” (United States v Varelli, supra, at p 747.) Such a nexus may arguably exist among the conspiracies charged in these indictments. The court holds, however, that more is required for consolidation under our State statute.
The purpose of recent amendments to CPL 200.40 was to "ease court congestion and reduce the burdens on crime victims who were required to testify at multiple trials” by
The central element in the crime of conspiracy is agreement (see, e.g., People v Schwimmer, 66 AD2d 91, 94 [2d Dept 1978], affd 47 NY2d 1004; compare, United States v Rosenblatt, 554 F2d 36 [2d Cir 1977]). Agreement means " 'concert of action, all the parties working together understandingly, with a single design for the accomplishment of a common purpose’ ” which is or contemplates the commission of substantive crimes (Marino v United States, 91 F2d 691, 694 [9th Cir 1937]; see, People v Ozarowski, 38 NY2d 481 [1976]). The court finds no distinction between a single conspiracy and "a common scheme or plan” upon which "all the offenses charged are based”. (CPL 200.40 [1] [b]), or "a group of acts * * * so closely related in criminal purpose or objective as to constitute elements or integral parts of a single criminal venture” (CPL 40.10 [2] [b]; incorporated by reference CPL 200.40 [1] [c]).
The phrase "common scheme or plan” is a term of art derived from the common law of evidence, where it is used to determine the admissibility of evidence of uncharged crimes to prove the defendant’s commission of the crime charged. It is often improperly equated with the concept of an unusual modus operand! as evidence of identity (see, Matter of Brandon, 55 NY2d 206, 212-213 [1982]). In fact, to establish a "common scheme or plan”, "[m]ere similarity * * * between the crime charged and the uncharged crime is not sufficient; much more is required. There must be 'such a concurrence of common features that the various acts are naturally to be explained as caused by a general plan of which they are the individual manifestations’ (2 Wigmore, Evidence [3d ed.], § 304, p. 202)” (People v Fiore, 34 NY2d 81, 84-85 [1974]).
Offenses which are the "individual manifestations of a general plan” which has motivated the offenders to commit them, of necessity, constitute aspects of a single conspiracy (see, e.g, United States v Varelli, 407 F2d 735, 742, supra; cf. Blumenthal v United States, 332 US 539, 557 [1947]). This is
Moreover, the statutory definition of a single criminal transaction as the relation of "acts * * * so close * * * in criminal purpose or objective as to constitute elements or integral parts of a single criminal venture” (CPL 40.10 [2] [b]) is almost verbatim Wigmore’s definition of a common scheme or plan as the common cause of " 'acts * * * which * * * are [its] individual manifestations’ (2 Wigmore, Evidence [3d ed.], § 304, p. 202)” (People v Fiore, supra, at p 85). The court does not understand the People to contend that these events involving 28 defendants at more than 20 locations at various periods during an interval of five years were "so closely related and connected in point of time and circumstance of commission as to constitute a single criminal incident”. (CPL 40.10 [2] [a]; 200.40 [1] [c]; cf., e.g., People v Pabon, 96 AD2d 870 [2d Dept 1983].)
In any event, the incorporation by reference within CPL 200.40 of the definition of a criminal transaction as that term is used in context of statutory prohibition against repeated prosecution for the same crime (CPL 40.10 [2]; 40.20 [2]) also tends to negate the People’s position. If related but separate conspiracies were included within the scope of a single criminal venture under CPL 40.10 (2) (b) unwonted results would ensue in terms of statutory bar to prosecution. Specifically, all similar agreements entered into by any defendant prosecuted for conspiracy and all acts undertaken by that defendant pursuant to any of the agreements would have to be prose
The effect of the amendments to the consolidation statute in regard to prosecution for conspiracy is to permit the joinder in a single proceeding of all aspects of the single conspiracy, including all defendants and all substantive offenses committed pursuant to the conspiracy, even though not every defendant is chargeable with each substantive offense (see, People v McGee, 49 NY2d 48, 56-58 [1979]). The court holds, however, that separate conspiracies, "related” though they may be as a "series of * * * transactions” within the Federal statute, are not thereby subject to consolidation or joinder in a single indictment under our State statute (CPL 200.40; cf. Fed Rules Crim Pro, rule 8 [b]).
In the interest of clarity, the court also holds that consolidation of these indictments beyond the scope of the several conspiracies actually proven would be inappropriate even under the Federal standard. All of the factors which led the court in Kotteakos v United States (328 US 750, 766-777, supra) to reverse the conviction of members of eight separate conspiracies improperly joined together in a single trial are also present here. "The sheer * * * numbers, both of defendants and of conspiracies proven * * * the burden of defense to a defendant, connected with one or a few of so many distinct transactions, is vast * * * not only in preparation for trial, but also in looking out for and securing safeguard against evidence affecting other defendants” (328 US, at pp 766-767). "The dangers of transference of guilt from one to another across the line separating conspiracies, subconsciously or otherwise, are so great that * * * prejudice to substantial right” is inevitable (328 US, at p 774).
On the other hand, insofar as the individual conspiracies
The motion to consolidate is, therefore, denied, except as to the following indictments involving defendants as to whom the evidence has established a single conspiracy:
Insofar as the events in regard to 601 East 11th Street were not proved to have been undertaken pursuant to the single conspiracy charged in indictment No. 8144/84, counts 40-54 of that indictment are severed as to the defendant Marx. Count
The defendants’ motions in regard to severance and in opposition to consolidation are denied except to the extent indicated herein.
The court finds eight separate conspiracies. The evidence in regard to indictment No. 8144/84 failed to establish that defendant Leisner’s use of the Lender-Lambert group to vacate 601 East 11th Street, two years after the previous joint endeavors of Marx and Leisner ended in July 1980, was
