In the early 1960s, a man who was a resident of Queens County and a meter reader for a certain Company entered upon a scheme under which he accepted money from various investors, agreeing to pay them a return of 1% a week and explaining to them that this high return was being paid by a factoring company which loaned out moneys to various companies in the fur, textile and other industries where there was a need for immediate cash. However, a New York Criminal Lawyer said there was no factoring company and he was merely repaying these people from their own moneys.
Sometime in March of 1971, after being the victim of a real or apparent robbery, and being ostensibly unable to continue to pay off investors, the said man fled New York City and went to San Francisco. His whereabouts were unknown to the authorities until a year later, when he was discovered by two irate investors and was returned to New York City by them.
Consequently, within two weeks after the said man was brought back to New York City, he was indicted for 35 counts of grand larceny. Thereafter, a New York Criminal Lawyer said he pled guilty to three counts of the 35 counts. He was convicted and sentenced to a conditional discharge.
Meanwhile, the Special Prosecutor secured a 10-count indictment against three other defendants by the Extraordinary Special Grand Jury of the County of Queens based upon allegations that they had been trying to cover up knowledge of the aforesaid scheme. The 10 counts were eventually reduced to six. Of those remaining, two were the hindering of prosecution. One of these was based on allegations that the defendants had misled the Bronx District Attorney’s office and thereby prevented that office from investigating the matter and referring it to a law enforcement agency other than the Queens District Attorney’s office. A New York Drug Possession Lawyer said the other of these hindering prosecution counts was based on allegations that the defendants had falsely advised two investors in the scheme that the matter of the convicted felon’s disappearance was already under investigation, thereby preventing the police from learning about and investigating the scheme. Two other remaining counts were for official misconduct. One was based on allegations that the defendants had failed to conduct an investigation of persons in the Queens District Attorney’s office who were involved in the scheme. The other alleged the defendants’ failure to disclose their knowledge to the Bronx District Attorney’s office, which was conducting an investigation of the scheme. These crimes of hindering prosecution and official misconduct each formed the basis for one of the two conspiracy counts, which were also among the six remaining counts.
The defendants are: defendant-two who was the District Attorney of Queens County; defendant-three, defendant-two’s son-in-law, who was the Deputy Chief Assistant District Attorney; and defendant-one who was a County Detective in the District Attorney’s office.
Allegedly, on 16 March 1971, immediately after the robbery of the aforesaid convicted felon, defendant-one, a large investor who had introduced several members of the Queens District Attorney’s office to the investment plan, told another investor to keep quiet about the matter; the next day, defendant-one told the same man that his office was investigating the matter and told the convicted felon’s wife not to discuss the matter with anybody or do anything, but to leave it in the hands of the District Attorney; in August of 1971 defendant-two concealed his knowledge of the scheme from the District Attorney of Bronx County then, and assigned defendant-three to investigate the matter, even though he knew defendant-three was an investor; on 20 August 1971, defendant-three falsely told the Bronx Assistant District Attorney (ADA) that he did not know whether there was someone with defendant-one’s name in the Queens District Attorney’s office and then, on 30 August 1971, he categorically told the ADA that there was no one by that name in that office; on 13 March 1972, defendant-two told the Chief ADA to prosecute only the convicted felon; and in March of 1972, defendant-two told the Chief ADA not to question defendant-one as a prospective defendant and accomplice of the convicted felon.
On 22 April 1974, the Extraordinary Special and Trial Term of the Supreme Court, Queens County, found defendants guilty of conspiracy in the fourth degree (two counts), hindering prosecution in the third degree (two counts) and official misconduct (two counts), and sentenced each of them to a term of six months upon each count of hindering prosecution, a term of six months upon each count of official misconduct and a term of three months upon each count of conspiracy, all the sentences to run concurrently.
Defendants appeal from the aforesaid judgment.
On the issue of conspiracy:
Under the rules, before a conspiracy can be shown to have existed, there must be proof of an agreement, express or implied, with a common corrupt intent in the minds of at least two or more persons. Neither the agreement nor the criminal intent need be proved by direct evidence. They both may be proved inferentially. In this case, the only evidence of conspiracy was circumstantial. Therefore, the facts proven must exclude to a moral certainty every hypothesis except that of the crime charged and they must be inconsistent with innocence.
Here, the court finds that the evidence against the defendants was insufficient because it was consistent with innocence and would be consistent with a finding that there was no agreement among the actors. A New York Sex Crimes Lawyer said the individual, independent acts of these defendants may reasonably be considered to have been valid exercises of the discretion which inheres in a prosecutor’s office. There is no evidence of facts extant prior to the convicted felon’s disappearance from which any inference of an agreement may be drawn. The defendants’ activities subsequent thereto do not logically lead to the conclusion that there was an agreement among them, let alone an agreement fraught with criminal intent.
Moreover, the court notes the fact that the convicted felon moved for a change of venue because of his fear of over-zealous prosecution, and his motion was thereafter granted. Although not determinative, this does suggest the weakness of the People’s case with respect to the existence of a conspiracy designed to prevent the convicted felon’s prosecution.
Furthermore, even if the existence of an agreement had been proved, evidence of the second element of the crime of conspiracy, i.e., criminal intent, was clearly lacking, as is shown by analysis of the individual counts of the indictment charging the substantive crimes.
On the issue of hindering prosecution:
The law provides that the crime of hindering prosecution in the third degree is committed when a person renders criminal assistance to a person who has committed a felony. A person renders criminal assistance when, with intent to prevent, hinder or delay the discovery or apprehension of, or the lodging of a criminal charge against, a person who he knows or believes has committed a crime or is being sought by law enforcement officials for the commission of a crime; prevents or obstructs, by means of force, intimidation or deception, anyone from performing an act which might aid in the discovery or apprehension of such person or in the lodging of a criminal charge against him.
Here, nothing in the evidence gave rise to any inference that defendant-one had the intention to prevent, hinder or delay the discovery or apprehension of the convicted felon. Theoretically, defendant-one was one of the law enforcement officials seeking the convicted felon. Defendant-one’s suggestion that participants remain quiet about the convicted felon’s disappearance appears to have been designed to avoid the obvious embarrassment of public disclosure. There is nothing to indicate that defendant-one’s statement was designed to enable the convicted felon to escape the law. Thus, the court finds that the evidence does not support a conviction for hindering prosecution. Undoubtedly, defendant-one had nothing to do with misleading the Bronx District Attorney’s office, since he had no communications with that office. The jury’s verdict as to defendant-one is unsupported by the evidence mainly because conspiracy was not proven.
As the first count of hindering prosecution had nothing to do with defendant-one, the second count of hindering prosecution also has nothing to do with defendant-two and defendant-three. Allegedly, defendants falsely advised two investors that the matter of the convicted felon’s robbery was already under investigation by the Queens District Attorney’s office. However, the record clearly shows that the only person who ever spoke to the two investors was defendant-one. There is nothing in the record to indicate that defendant-one spoke to either defendants two or three prior to speaking to the two investors. In fact, at the time defendant-one was alleged to have spoken to the two investors, defendant-two was at a District Attorney’s convention in Hawaii. Since there is not a shred of evidence to connect defendant-two and defendant-three to the facts alleged, the jury’s verdict with respect to them was clearly erroneous.
Moreover, in the absence of direct evidence to the contrary, neither of the two investors was prevented by defendant-one’s statement from going to any other authority. One of the investors admitted at the trial that he had skimmed from money he picked up for others. Laving had allowed his bar establishment to become the headquarters for the convicted felon’s operations. Thus, it is obvious that one of the investor’s own criminal involvement and the other’s fear of jeopardizing his liquor license were perforce a greater deterrent than was defendant-one’s remark.
On the issue of official misconduct:
Under the law, official misconduct occurs when a public official with intent to obtain a benefit knowingly refrains from performing a duty which is imposed upon him by law or which is clearly inherent in the nature of his office.
Here, the first official misconduct charge in the indictment alleged that defendants failed to conduct an investigation of persons in the Queens District Attorney’s Office who were involved in the scheme. The court finds that neither the indictment nor the proof elicited at the trial established with any degree of certainty, other than that provided by hindsight, that the scheme should have resulted in investigation of the investors. The district attorney’s office would have been investigating its own staff. Acquaintance with the scheme was already common to the entire office; investigation of those who were investors would have revealed nothing further. Also, the fact remains that there was no usury involved. There is no doubt that this too-good-to-be-true investment opportunity should have raised the suspicions of the investors. Defendant-two testified that he did not invest because, among other reasons, he considered the investment to be too risky. It may appear upon the record that the defendants were guilty of stupidity and veniality and were unreasonable in what they did. But these qualities are not criminal. The court cannot substitute a reasonable man test for the essential requirement of criminal intent. Without criminal intent there is no crime.
The final count of official misconduct was based upon the allegation that defendants failed to disclose their knowledge of the scheme to the Bronx District Attorney’s office. The court finds that there is nothing in the charge or the evidence presented with respect thereto that relates to defendant-one. His conviction of this count of the indictment was totally unjustified. With respect to defendant-two and defendant-three, it is clear that their reticence was improper. But it was not criminal. Defendant-two’s obligation to disclose knowledge of certain facets of a crime, the prosecution over which he had jurisdiction or control, is not a duty clearly inherent in the nature of his office. That he might be expected to divulge what he knows as a matter of professional courtesy is not to be denied. Failure to do so may be rude, but it does not constitute the crime of official misconduct.
Moreover, the evidence fails to establish that defendant-one took part in the subject felony. Thus, defendant-two’s failure to advise the ADA of defendant-one’s existence could not have hampered attempts at the apprehension and prosecution of the convicted felon, even assuming some measure of jurisdiction and control by the Bronx District Attorney’s office over the investigation.
Furthermore, there is evidence upon the record that the Queens District Attorney’s office pursued an investigation in order to find the convicted felon after his disappearance. Admittedly, the record establishes that the investigation was rather inept. But it is not clear evidence of a criminally willful refusal to exercise the district attorney’s discretion. The evidence is also weak with respect to criminal intent in the dismissal by the trial court, at the close of the case, of the seventh and eighth counts of the indictment on the grounds of insufficiency of evidence. These two counts charged the crimes of official misconduct for failing to lodge a criminal complaint, to obtain an indictment or secure an arrest warrant against the convicted felon and for failing to assign an impartial investigator to the case. Since the facts underlying these charges were proven at the trial, it is clear that the trial court was of the opinion that there had been a failure to prove criminal intent. Yet it was the very failure to lodge a criminal complaint, obtain an indictment or secure an arrest warrant that formed the basis for the prosecutor’s theory that all the other action or inaction by the defendants was accompanied by criminal willfulness.
Nonetheless, if the court would not dismiss the indictment, a new trial would be granted because of the many prejudicial errors which occurred during the course of the trial. Although a certain number of errors must be expected in a trial which lasts several weeks, there were transgressions of such quality and quantity as to severely prejudice the defendants.
In sum, although there was sufficient evidence for the jury to find that all of the overt acts had occurred, the acts were not in furtherance of a conspiracy and did not constitute the substantive crimes of hindering prosecution or of official misconduct. The judgment is reversed, on the law and the facts, and the indictment is dismissed.
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