In this criminal case, a shoplifter had been apprehended and brought to the office of Carl G., a 22-year old office manager of a food store, and after some discussion G agreed to ‘forget’ the whole incident upon payment to him of $500. A New York Criminal Lawyer said upon reflection, the shoplifter disavowed the scheme and reported it to the District Attorney, who arranged for payment of the money to G.
When the money was paid G was arrested for extortion. Although G had retained counsel he inquired of defendant S, a security officer in his store, if he knew anyone who could help him. The next day S informed G that defendant B, an ex-state senator, had great influence and could perhaps have the charge dropped but it might involve paying off some people. He arranged for G to meet B. At this meeting attended by all three, B and G had a discussion in which S did not participate.
G was advised to discharge his attorneys; B ‘guaranteed’ he could produce a satisfactory result because of his influence with certain public officials and agreed to make an inquiry to determine how much of a pay-off might be required. At that meeting G intended to go along with B suggestion to turn over money to resolve or drop the pending charges. Before the scheduled second meeting, G upon reflection concluded that B was a name dropper who couldn’t do anything for him and advised S he had reconsidered B proposition, decided to decline his help and withdrew from any arrangement. S did not attempt to induce G continued participation in the scheme. Thereafter G revealed all these events to his attorneys, who advised the District Attorney, and G agreed to co-operate with him in an investigation of the defendants. By pre-arrangement with the District Attorney, G office was equipped with a hidden microphone and S was called to his office. G asked him whether B would ‘take him back on’. S indicated that B had become very displeased B for backing out of the original deal because he had done 3 or 4 days of research on his case. He did however arrange for another meeting. The record shows no other meeting between G and S, only the one meeting at which all three were present, and no other meeting between S and B. G, on the other hand, conferred with B on two more occasions, during both of which he was equipped with a concealed transmitter tuned to a receiver in the District Attorney’s car. At the second meeting Bauer advised Gmerek that he had discussed the extortion charge with the District Attorney and certain other people (when in fact the record reveals he had never done so); that the charges could be favorably disposed of for $3,000 but he would try for $2,000, and he requested Gmerek to bring that sum in cash at their next meeting. Gmerek was furnished the money in marked bills by the District Attorney, and after it was given to Bauer the latter was arrested.
An Erie Grand Larceny Lawyer said that, the indictment charged both defendants in the first count with conspiracy to commit the crimes of bribery and grand larceny, and in the second count with the crime of attempted grand larceny by false pretenses. The jury returned a verdict of not guilty on the second count against defendant Sroka.
An Erie Criminal Lawyer said that, the verdict of guilty against both defendants on the conspiracy count and of acquittal in favor of Sroka on the attempted grand larceny count is a clear indication that the conspiracy conviction was based upon the three-way conversation of December 3 in which Bauer expressed his intent to bribe. This proof however, as will be hereinafter demonstrated, was not sufficient to support the conviction on that count.
The issue in this case is whether defendants were properly indicted of the crime of grand larceny and conspiracy.
A Staten Island Criminal Lawyer said the Court held that, it is well established that to constitute the crime of conspiracy there must be a corrupt agreement between two or more individuals entered into with a criminal intent to do an unlawful act either as a means or an end, followed by an overt act to effect the object of the agreement.
The Court said that, an examination of the record fails to reveal the existence of either necessary element of the crime. Referring to the first and only three-way meeting of December 3, no illegal combination was formed since the only ‘agreement’ made was one between B and G to meet again the following week. A Nassau County Criminal Lawyer said that this meeting B attempted to persuade G of his influence and promised to talk to certain people to see how much money was needed to effect a bribe. Even assuming that an agreement to bribe could be implied from the acts and conduct of the parties, together with g’s testimony that he was willing to do anything to get out of his trouble, and that as he left the meeting it was his intention to turn over money to B to resolve or have the charge dropped, there is no proof that Gmerek delivered any money or that B attempted to bribe anyone before the unlawful agreement had been abandoned; consequently there was no overt act in furtherance of such an agreement sufficient to support the charge of conspiracy to bribe.
The next contact between S and G was when the latter announced his retirement from any dealings with B. The ‘plan’ was revived when the District Attorney requested G to assist in investigating defendants. From this point on G could not have had the requisite criminal intent to enter into a conspiracy to bribe because he was no longer relying upon B’s representations.
The Court said that, although S arranged for G to meet B again, there is no proof that he ever participated in any unlawful agreement and therefore he could not be convicted of conspiracy. If S could not be convicted of conspiracy, B, his alleged co-conspirator, likewise could not be convicted of conspiracy. It follows that the judgment convicting both appellants of the crime of conspiracy should be reversed and the first count of the indictment dismissed.
With reference to the second count, defendant B contends that his conviction for attempted grand larceny based on the events surrounding the payment of the $2,000 cannot stand. He argues, as he did at the trial, that since it was legally impossible for him to have consummated the crime of grand larceny, he cannot be guilty of an attempt. The Court disagrees with this contention.
At the December 3 meeting B, among other things, advised G that he had influence with the District Attorney and a few judges; that he could help him out; that G was to drop his attorneys; that he would guarantee a plea to a lesser offense and probation; that new attorneys would be appointed by the District Attorney. When asked how much it was going to cost, B replied, ‘Carl, it’s a vicious chain. There is many, many people involved. We might have to pay off the D.A., the Assistant D.A., the Judge.’ He stated he would talk to certain people to see how much was needed and fixed the date for the next meeting. These statements certainly are expressions of intent to bribe but subsequent events disclosed that his actual intent was not to bribe but to defraud by obtaining money from G by false pretenses, and the crime of larceny by false pretenses could have been, and probably would have been, consummated if his design had not been interrupted by a change of heart by G, a fact unknown by B. However, before the second meeting G discussed B representation with his employer, and decided to withdraw from the arrangement, which was later revived by the District Attorney, thus preventing the consummation of the crime of larceny.
The transcript of the recorded conversation between B and G at the second meeting on December 19 reveals that B, among other false statements, said that he was running City Court; that he went there and talked with the Assistant District Attorney who said he’d do anything the boss says; that he had talked with the District Attorney who was asking for $3,000 and that he went to County Court and talked with the County Judge who guaranteed probation. After making all of these false statements, he said, ‘I will tell you how confident I am, I will give you a promissory note.’ He then twice said that he could settle the whole case for $3,000 but he didn’t want to go in with three, he would rather go in with two, but guaranteed it wouldn’t cost over $3,000. He then requested G to bring $2,000 in cash on December 22 and said that it would be nice to give this money to the District Attorney before Christmas. He also impressed upon him the urgency of secrecy. On December 22 G handed B $2,000 in marked money furnished by the District Attorney, and pursuant to a prearranged signal B was arrested.
The fact that Gmerek did not rely upon Bauer’s misrepresentations but turned over the money with the knowledge and consent of the owner and with full knowledge of the falsity of Bauer’s statements made it impossible to charge defendant with larceny. The Court issatisfied, however, that the intended victim’s lack of reliance upon misrepresentations by the defendant does not preclude conviction of attempted grand larceny because of the legal impossibility of completion of the crime of grand larceny by false pretenses. Cases decided in this and other jurisdictions lead us to this conclusion.
An attempt to commit the crime of larceny by false pretenses consists of intent to commit the crime coupled with an ineffectual overt act towards its commission. The making of fraudulent misrepresentations calculated to induce the victim to part with his money has been held to constitute a specific overt act. It is no defense that the consummation of the larceny was prevented or became impossible as the result of a factual impossibility unknown to defendant nor that the victim was not deceived by and did not rely upon the misrepresentations. To sustain a conviction for an attempted grand larceny by false pretenses, it is not necessary that every element constituting it be present.
Defendant B made false representations to G for the purpose of obtaining a sum of money which was in fact received by him from the intended victim. The fact that the victim was not deceived was unknown to the defendant; while this lack of deception prevented completion of the crime of grand larceny by false pretenses it did not render invalid the conviction for the lesser crime of attempted grand larceny. B’s wicked motive was unaffected by G’s knowledge; his intention and conduct were criminal when he received the $2,000 payment as well as when he made the false representations and promises to G which started the chain of criminal events. The evidence of defendant B’s unsuccessful efforts to obtain money from Gmerek by fraudulent misrepresentations as to the bribing or influencing of public officials amply supports the conviction for the crime of attempted grand larceny by means of false pretenses.
Clearly, the issue of intent to obtain money by false pretenses was properly submitted as a question of fact for the jury to be determined from all the circumstances. The question as to intent may never be ruled as one of law but should always be submitted to the jury. Upon the record as a whole we cannot say that the jury’s resolution of this issue by finding that B intended to defraud G by false pretenses was not supported by the proof.
The theory we advance to justify the conviction is not reliance upon the testimony of G, as claimed in the dissent, but reliance upon the recorded false statements which came from the lips of B. Resort to falsehood affords of itself a presumption of evil intentions and has always been considered proper evidence upon the question of guilt or innocence. This is the same theory upon which the District Attorney decided to investigate the defendant by using a transmitter and receiver to record B’s statements, as revealed by the following question and answer on cross examination. The transcript of Bs recorded statements made on December 19 unquestionably shows his evil intention to defraud G.
The transcript of the recorded conversation of December 22 shows that B neither offered a receipt nor gave a promissory note at the time the money was delivered even though he had pencil and paper. At that time he wrote G’s name and address on a slip of paper for himself and his telephone number on a slip of paper for G, but he did not write out the promissory note he promised to give G on December 19.
Lastly, the District Attorney testified on cross examination that in 1965 there was a policy of accepting reduced pleas in better than 75% of the felony indictments handed down by the grand jurors. This policy resulted from the fact that approximately 800 indictments were returned annually in Erie County but by using the available courtrooms to maximum capacity only about 180 cases could be disposed of by trial.
From the recorded conversations and the testimony of the public officials the jury could have found that Bauer never intended to give a promissory note or to return the money and never intended to give the $2,000 to the District Attorney but intended to defraud G by taking advantage of any amelioration of the charges or punishment which might accrue to young G by virtue of the crowded condition of the court calendar. Thus, the Court concludes that the record amply supports the factual finding of the jury that B made false representations with intent to defraud.
Accordingly, the Court held that judgment of conviction of the crime of conspiracy as to defendants B and S should be reversed on the law and facts and the first count of the indictment dismissed, and the judgment of conviction of defendant Bauer of the crime of attempted grand larceny, first degree, should be affirmed.
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