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Section 580 of the Penal Law…cont

The gravamen of the offense of conspiracy is the unlawful combination and not the successful execution of the plan. The offense is complete upon proof of the unlawful agreement and of an over act done to affect the object thereof by either of the parties to the agreement. The conspiracy is an independent crime wholly separate and distinct from the grand larceny which may have been the purpose of the conspiracy and which may or may not have come to a successful conclusion as a result of the conspiracy.

If the defendant and his co-defendant entered into an agreement pursuant to which this defendant exaggerated his bill and his medical report with the intent to deprive and defraud the insurance company of its money in an amount that would constitute a felony, and to appropriate the same to the use of either of the defendants or to aid and abet the co-defendant or others to do so, and the defendant wrote and issued such bill and statement, the conspiracy had been committed and was complete.

There is no legal requirement that the conspiracy result in a completed crime based upon the terms of the conspiracy. Even if it could be successfully established that the conspiracy failed of consummation because the substantive crime could not be or was not completed, the crime of conspiracy could still be complete andthe defendant and his co-defendant could still be guilty of a violation of Section 580 of the Penal Law.

The defendant concedes that the adjuster ‘took into consideration the bill allegedly submitted in the amount of $95.00 and the medical report purportedly submitted by the defendant. It was this report which brought into the picture the existence of a contusion of the chest, a sprain of the lumbo-sacral area and an aggravation of an unstable and weak back. He contends however that since the insurance company caused the claimant to be examined by its own physician it could not have relied upon or been misled by his (the moving defendant’s) medical report in settling the claim for $850.00. It does not require great introspection to realize that an insurance company settles a claim not only upon the basis of its own doctor’s report, which in many cases is entirely negative, but also upon the scope of its possible liability as it is envisaged and set forth in the claimed personal injuries. In any event that is a contention to be addressed to the trier of the fact.

Whether, therefore, there was in fact any illegal conspiracy between the defendants to defraud and deprive the insurance company of its funds in an amount which would constitute a felony; whether the medical report was in fact fraudulent, and whether the insurance company relied thereon in making payment on the personal injury aspect of the claim are all issues of fact which may not be flung off or decided on this application.

Accordingly, the court held that the motion is in all respects denied. Short form order signed and entered.

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