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The issue in this case is whether defendants are guilty of conspiracy.

In this criminal case, 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.

The issue in this case is whether defendants are guilty of conspiracy.

The court in deciding the case cited the provisions of Penal Law 105.10Section 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 criminal 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.

The District Attorney concedes that under the theory of the crime put forth, and the facts proved, in this case, the counts of grand larceny in the third degree and possession of a weapon as a misdemeanor were lesser included concurrent counts to robbery in the first degree. The verdict of guilty on the robbery count entitled the defendant to a dismissal of the lesser counts submitted as inclusory concurrent counts. The reversal and dismissal of the grand larceny and weapon counts do not affect the validity of the robbery conviction. The remaining contentions advanced by defendant have been examined and found to be without merit.

Accordingly, the court held in the first case that the judgment of the Supreme Court, Bronx County, rendered October 11, 1973, convicting defendant, upon a jury verdict, of robbery, first degree, grand larceny, third degree and possession of a weapon as a misdemeanor, unanimously modified, on the law, to the extent of reversing the convictions on the grand larceny and the weapon counts and dismissing those counts of the indictment and, as so modified, the judgment is affirmed; further, the court held that the judgments, 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 a crime is punishable by law. It is also a criminal case that needs to be defended. In order to do this, seek the legal opinion and representation of Bronx Grand Larceny Attorney and/or Bronx Robbery Attorney at Stephen Bilkis and Associates.

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