This involves a case where the court dismissed the indictment against defendants for conspiracy in the fourth degree (two counts), hindering prosecution in the third degree (two counts) and official misconduct (two counts).
In the early 1960s, JF, a resident of Queens County and meter reader for a 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. In fact, there was no factoring company and JF was merely repaying these people from their own moneys. Among the hundreds of persons who invested with him were members of the staff of the District Attorney of Queens County, including defendants.
In March of 1971, after being the victim of a real or apparent robbery, and being ostensibly unable to continue to pay off investors, JF 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. Within two weeks, he was indicted for 35 counts of grand larceny by a Queens County Grand Jury upon presentation of the case by the District Attorney’s office. At that time, defendant was the District Attorney of Queens County, his son-in-law, was the Deputy Chief Assistant District Attorney and another defendant was a County Detective in the District Attorney’s office.
It was alleged 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. 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 JF’s disappearance was already under investigation, thereby preventing the police from learning about and investigating the JF scheme.
The Court dismissed the complaint against the defendants on the ground 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. 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. Indeed, there is no evidence of facts extant prior to Ferdinando’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.
According to the court, 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 (People v. Chaplin, 8 A.D.2d 286, 187 N.Y.S.2d 730). Neither the agreement nor the criminal intent need be proved by direct evidence. They both may be proved inferentially (People v. Flack,125 N.Y. 324, 26 N.E. 267; People v. Silverman, 252 App.Div. 149, 297 N.Y.S. 449). 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.
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‘ (Penal Law, § 205.55). As far as applicable to the charges here, ‘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 * * * he: * * * 4. 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; * * *’ (Penal Law, § 205.50). Nothing in the evidence gave rise to any inference that defendants had the intention to prevent, hinder or delay the discovery or apprehension of JF. Theoretically, defendant was one of the law enforcement officials who was seeking JF.
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