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The issue in this case is whether the court erred in convicting appellants of conspiracy in the second degree.

A Bronx Grand Larceny Lawyer said that, defendants-appellants, members of the New York City Police Force, were indicted, together with another, for the crime of conspiracy in the second degree, (Penal Law 105.10) grand larceny in the first degree (extortion), bribe receiving, receiving reward for official misconduct and official misconduct. At the trial, the latter two counts on official misconduct were removed from jury consideration. The jury acquitted on the charges of grand larceny and bribe receiving, but convicted on the charge of conspiracy in the second degree.

A Bronx Criminal Lawyer said that, also defendant was convicted of first degree murder. Defendant appealed to the Court of Appeals, contending that the People failed to establish that the killing took place during the commission of the crime of burglary in the third degree, and that the People failed to establish that the killing took place during the commission of the crime of grand larceny in the second degree, and that the County Court erred in submitting to the jury the theory of murder during the commission of the crime of burglary in the third degree and grand larceny in the second degree, and that verdict of jury could not stand if the People only established one of the felonies, either burglary in the third degree or grand larceny in the second degree, because both theories were submitted to the jury as the basis of a finding of felony murder, inasmuch as there was nothing in the record to indicate which felony was used by the jury as the basis of the finding of guilty of felony murder.

The issue in this case is whether the court erred in convicting appellants of conspiracy in the second degree.

The court in deciding the case cited the provisions of Section 105.10 reads as follows: ‘A person is guilty of conspiracy in the second degree when, with intent that conduct constituting a class B or class C felony be performed, he agrees with one or more persons to engage in or cause the performance of such conduct.’

While it is possible to have a conviction of conspiracy even though the defendants are found not guilty of the substantive crimes contemplated, for this conviction to stand, it must be clear as to whether the predicate intended felony conforms to the statute. A conspiracy was charged here to commit both grand larceny in the first degree by extortion, a class C felony, which satisfies the requirement, and bribe receiving, a class D felony, which is surplusage that does not satisfy the requirement, all in one count. As the Trial Judge indicated, there could not be a conviction of conspiracy in the second degree based on the allegation with respect to the bribe receiving.

While the Trial Judge endeavored in his charge to limit the situation to the predicate class C felony of grand larceny by extortion, the situation was confusing. Under the circumstances, it is preferable pursuant to CPL 470.15(2) (a), 470.20(4) to apply the provisions of Penal Law ยง 105.05 as the evidence was legally sufficient to establish the guilt of the defendants of conspiracy in the third degree. This Court has the authority, which is hereby exercised, to so modify the judgment by reducing the crime of which defendants are convicted, to conspiracy in the third degree, and accordingly to remit the matter for resentencing.

Accordingly, the court held that the judgments of the Supreme Court, Bronx County, each rendered June 27, 1972, convicting the defendants, after a jury trial, of conspiracy in the second degree, are unanimously modified, on the law, by reducing the degree of crime, conspiracy in the second degree, to conspiracy in the third degree, and by remitting the matter for resentencing, and, as thus modified, judgments are affirmed.

Conspiracy to commit grand larceny is a serious crime. There is a need for the assistance of a Bronx Grand Larceny Attorney and/or Bronx Criminal Attorney in order to know the legal defenses that you can use to defend your case. Call us at Stephen Bilkis and Associates.

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