DEL VECCHIO, J.P.

These are joint appeals from judgments of the County Court of Erie County rendered June 19, 1968 upon verdicts (1) convicting both defendants of the crime of conspiracy, and (2) convicting defendant Bauer of the crime of attempted grand larceny first degree, allegedly committed in December, 1965.

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.

In November, 1965 a shoplifter had been apprehended and brought to the office of Carl Gmerek, a 22-year-old office manager of a food store, and after some discussion Gmerek agreed to "forget" the whole incident upon payment to him of $500. Upon reflection, the shoplifter disavowed the scheme and reported it to the District Attorney, who arranged for payment of the money to Gmerek. When the money was paid Gmerek was arrested for extortion. Although Gmerek had retained counsel he inquired of defendant Sroka, a security officer in his store, if he knew anyone who could help him. The next day Sroka informed Gmerek that defendant Bauer, 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 Gmerek to meet Bauer. At this meeting held on December 3, 1965, attended by all three, Bauer and Gmerek had a discussion in which Sroka did not participate. Gmerek was advised to discharge his attorneys; Bauer "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 Gmerek intended to go along with Bauer's suggestion to turn over money to resolve or drop the pending charges. Before the scheduled second meeting, Gmerek upon reflection concluded that Bauer was a name dropper who could not do anything for him and advised Sroka he had reconsidered Bauer's proposition, decided to decline his help and withdrew from any arrangement. Sroka did not attempt to induce Gmerek's continued participation in the scheme. Thereafter Gmerek revealed all these events to his attorneys, who advised the District Attorney, and Gmerek agreed to co-operate with him in an investigation of the defendants. By prearrangement with the District Attorney, Gmerek's office was equipped with a hidden microphone and Sroka was called to his office. Gmerek asked him whether Bauer would "take him back on". Sroka indicated that Bauer had become very displeased with Gmerek for backing out of the original deal because he had done three or four days of research on his case. He did however arrange for another meeting. The record shows no other meeting between Gmerek and Sroka, only the one meeting at which all three were present, and no other meeting between Sroka and Bauer. Gmerek, on the other hand, conferred with Bauer 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. These conversations, transmitted to the District Attorney's car, were taken down in shorthand by a court stenographer. Both the shorthand notes and the transcripts are a part of the record.

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.

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. (Penal Law, §§ 580, 583; People v. Harris, 294 N.Y. 424, 433; People v. Tavormina, 257 N.Y. 84; People v. Flack, 125 N.Y. 324.)

Our 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 Bauer and Gmerek to meet again the following week. At this meeting Bauer attempted to persuade Gmerek 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 Gmerek'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 Bauer to resolve or have the charge dropped, there is no proof that Gmerek delivered any money or that Bauer 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. ( People v. Hines, 284 N.Y. 93, 113.)

The next contact between Sroka and Gmerek was when the latter announced his retirement from any dealings with Bauer. The "plan" was revived when the District Attorney requested Gmerek to assist in investigating defendants. From this point on Gmerek could not have had the requisite criminal intent to enter into a conspiracy to bribe because he was no longer relying upon Bauer's representations. ( People v. Flack, supra; People v. Powell, 63 N.Y. 88.)

Although Sroka arranged for Gmerek to meet Bauer again, there is no proof that he ever participated in any unlawful agreement and therefore he could not be convicted of conspiracy. If Sroka could not be convicted of conspiracy, Bauer, his alleged coconspirator, likewise could not be convicted of conspiracy. In People v. Hamilton ( 165 App. Div. 546) the court held that a conspiracy involves of necessity the joint agreement of at least two parties and that it is necessary to prove the guilt of both in order to sustain the conviction of one. In People v. Kuland ( 266 N.Y. 1) it was held that upon such an indictment against two persons an acquittal or reversal as to one is an acquittal or reversal as to the other. (See, also, People v. Chaplin, 8 A.D.2d 286.)

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 Bauer 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, relying on People v. Rollino ( 37 Misc.2d 14) and cases cited therein. We disagree with this contention.

At the December 3 meeting Bauer, among other things, advised Gmerek that he had influence with the District Attorney and a few Judges; that he could help him out; that Gmerek 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, Bauer 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 Gmerek 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 Gmerek, a fact unknown by Bauer. However, before the second meeting Gmerek discussed Bauer's 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 Bauer and Gmerek at the second meeting on December 19 reveals that Bauer, 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 would 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 did not want to go in with three, he would rather go in with two, but guaranteed it would not cost over $3,000. He then requested Gmerek 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.

The People called as witnesses: the Assistant District Attorney assigned to City Court, who testified that he had no conversation with Bauer in December, 1965 concerning Gmerek's case and never told him he would do anything the boss says; the County Judge, who testified that during the month of December, 1965 he had no conversation with Bauer and never told him that he would guarantee probation for Gmerek; and the District Attorney, who testified that the only time he talked with Bauer was in a telephone conversation on December 17, 1965 which was recorded on tape. During that conversation Bauer never offered him any money, never attempted to influence him with respect to Gmerek and in fact never discussed with him the charges pending against Gmerek.

On December 22 Gmerek handed Bauer $2,000 in marked money furnished by the District Attorney, and pursuant to a prearranged signal Bauer 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. We are satisfied, 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 an 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. ( People v. Spolasco, 33 Misc. 22; People v. Anderson, 55 Cal.2d 655, cert. den. 368 U.S. 931; State v. Wolf, 168 Minn. 505.) 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. ( People v. Gardner, 144 N.Y. 119; People v. Moore, 142 App. Div. 402, affd. 201 N.Y. 570; People v. Teal, 196 N.Y. 372, 382; People v. Boord, 260 App. Div. 681, affd. 285 N.Y. 806; People v. Camodeca, 52 Cal.2d 142; Franczkowski v. State, 239 Md. 126; see, generally, Ann. 6 ALR 3d 241.) To sustain a conviction for an attempted grand larceny by false pretenses, it is not necessary that every element constituting grand larceny be present. ( People v. Gardner, supra.)

In the Gardner case the defendant had been convicted of attempted extortion although the intended victim knew, at the time the money was paid to defendant, that the threats made to induce payment were groundless and although the payment was not actuated by any fear on the part of the victim. There, as in the present case, the victim had consulted the police prior to the time of payment and was acting for the purpose of making an arrest of the defendant possible, not as the result of threats or promises by the defendant. The Court of Appeals concluded that the absence of the victim's reliance upon the defendant's threats did not make the conviction for attempted extortion invalid. "The threat of the defendant was plainly an act done with intent to commit the crime of extortion, and it tended, but failed, to effect its commission, and therefore the act was plainly within the statute an attempt to commit the crime. The condition of Mrs. Amos' mind was unknown to the defendant. If it had been such as he supposed, the crime could have been and probably would have been consummated. His guilt was just as great as if he had actually succeeded in his purpose. His wicked motive was the same, and he had brought himself fully and precisely within the letter and the policy of the law. This crime as defined in the statute depends upon the mind and intent of the wrongdoer, and not on the effect or result upon the person sought to be coerced." (p. 124, emphasis supplied). (See, also, People v. Moran, 123 N.Y. 254.) That the same rule applies to attempted grand larceny by false pretenses is made clear by the statement in Gardner (p. 126): "It has been held in several cases that there may be a conviction of an attempt to obtain property by false pretenses, although the person from whom the attempt was made knew at the time that the pretenses were false, and could not, therefore, be deceived." This rule was reiterated in People v. Teal ( 196 N.Y. 372, 382) where, referring to the Gardner and Moran cases, the court said: "It is said that they are authorities for the doctrine that the question whether a person has made an attempt to commit a crime depends upon the mind and intent of the actor and not upon the result of the act. That is quite true as regards the crimes of larceny and extortion, which were the subjects of discussion in those cases". More recently, Justice ROGER J. TRAYNOR, writing for the Supreme Court of California in People v. Camodeca ( supra, pp. 146-147) stated: "The overwhelming weight of authority in this country [cases cited] holds that in a prosecution for attempted grand theft by false pretenses it is not necessary that the defendant's intended victim be deceived by the falsity of the representations made to him [authorities cited]."

The present case falls squarely within this principle. Defendant Bauer made false representations to Gmerek 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. Bauer's wicked motive was unaffected by Gmerek'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 Gmerek which started the chain of criminal events. The evidence of defendant Bauer'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.

People v. Rollino ( 37 Misc.2d 14, supra) relied on by defendant, has no application to the instant case; it does not consider attempted larceny by false pretenses and does not discuss the line of cases headed by People v. Gardner which, in our opinion, is compelling authority for affirmance.

The dissenting Justice would reverse this count upon the ground that there is no showing beyond a reasonable doubt that Bauer possessed any intent to commit larceny by false pretenses. It should be noted that no such point was made in this court by defendant either in his brief or oral argument and therefore respondent has had no opportunity to answer this point. In any event, the jury was fully and adequately instructed that the alleged false representations must be found to have been made with intent to defraud in order to convict. The court read the second count as it appears in the indictment. Briefly stated, it accused both defendants of the crime of attempted grand larceny first degree in that between December 3 and December 22 each of them with intent to cheat and defraud Gmerek made false pretenses to obtain $2,000 and that Bauer on December 22 obtained $2,000 from Gmerek by means of false representations with intent to cheat and defraud Gmerek. The court then defined larceny and charged that, "An act done with intent to commit a crime, intending but failing to effect its commission, is an attempt to commit that crime." It also instructed the jury as follows: "Intent can be defined as that mental operation by which a person desires to accomplish a certain result. Like every other mental function it is a secret and silent operation, invisible to the human eye but which can be ascertained from the actions and conduct of the person whose intent is the subject of inquiry and the surrounding circumstances thereto", and "In determining the question of fact from circumstantial evidence there are two general rules to be observed. First, the theory of guilty must flow naturally from the facts proved and be consistent with all of them. Second, the facts proved must exclude to a moral certainty every theory but that of guilt and not only must all of them be consistent with and point to guilt but they must be inconsistent with innocence", and finally: "If you find beyond a reasonable doubt that defendant Bauer made certain representations to Gmerek knowing them to be false with the intent to defraud Gmerek of $2,000 and that the defendant Sroka was united with Bauer in these acts as an accomplice, then you may find both defendants guilty of this count."

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 of intent can never be ruled as a question of law but must always be submitted to the jury." ( People v. Flack, 125 N.Y. 324, 334; cf. People v. Monroe, 64 App. Div. 130.) Upon the record as a whole we cannot say that the jury's resolution of this issue by finding that Bauer intended to defraud Gmerek by false pretenses was not supported by the proof.

The dissent relies heavily upon Gmerek's testimony that during the conversation of December 19 Bauer offered him a receipt and a promissory note, which he refused. Defense counsel on summation also read the same questions and answers quoted in the dissenting opinion in arguing that Bauer had no larcenous intent. Obviously the jury did not accept this argument, no doubt for the reason that there was nothing in the transcript of the recorded conversation to show that a receipt was offered or that a note was refused. In light of this fact, the jury could well have rejected these two statements. Reconciliation of the testimony and the recorded conversation, a determination of which should be accepted and which rejected the truthfulness and accuracy thereof, were exclusively for the jury, and a court should not substitute its determination for that of the jury. It should also be observed that the conversations between Bauer and Gmerek were had in December, 1965 and that the trial was held in May, 1968. The questions and answers quoted in the dissenting opinion are part of the cross-examination relating to the conversation had on December 19. When Gmerek was asked on cross-examination, in testing the accuracy of his testimony, whether some of the things he said in his testimony "might have been words that came out of your mind without actually having occurred", he replied that it was difficult to remember verbatim exactly what had happened two and a half years ago. Finally, the jury could not only have rejected those statements but could also have found that Bauer's stated proposed use of the money and his promise to give a note were false inducements to encourage Gmerek to deliver the cash on December 22, that these false inducements together with the misrepresentations made on December 19 evidenced an intent to defraud Gmerek of $2,000 for his own personal use and not to bribe anyone. It is inconceivable that Bauer would bribe a public official to help out a stranger without benefit to himself.

The theory we advance to justify the conviction is not reliance upon the testimony of Gmerek, as claimed in the dissent, but reliance upon the recorded false statements which came from the lips of Bauer. 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. (Cf. People v. Conroy, 97 N.Y. 62, 80.) This is the same theory upon which the District Attorney decided to investigate the defendant by using a transmitter and receiver to record Bauer's statements, as revealed by the following question and answer on cross-examination: Q. "Now, at that time were you then of the opinion that if anything was up involving Bauer, Sroka, that it was a larceny from Gmerek? They were trying to take money under false pretenses?" A. "Yes, sir. He was claiming he was going to pay off me and Judges and everybody else. I just don't believe that he was going to do that."

The transcript of Bauer's recorded statements made on December 19 unquestionably shows his evil intention to defraud Gmerek. This is not overcome by his braggadocio statement that, "I will tell you how confident I am, I will give you a promissory note", and his nebulous statement that, "I will give you a promissory note if I don't deliver it, you collect on demand, two thousand dollars from me."

The transcript of the recorded conversation of December 22 shows that Bauer 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 Gmerek's name and address on a slip of paper for himself and his telephone number on a slip of paper for Gmerek, but he did not write out the promissory note he promised to give Gmerek 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 Gmerek by taking advantage of any amelioration of the charges or punishment which might accrue to young Gmerek by virtue of the crowded condition of the court calendar. We conclude that the record amply supports the factual finding of the jury that Bauer made false representations with intent to defraud. Accordingly, the conviction for attempted grand larceny should be affirmed.

The dissent also relies upon the argument presented by defendants that prejudicial error was committed in allowing the jury to report the verdict without having had certain requested testimony read.

It appears that the jury retired to commence deliberations at 12:18 P.M. At 5:03 P.M. they returned for further instructions on a question of law. After the court had complied with that request the foreman asked that Gmerek's testimony of the December 3 conversation be read. (This was the conversation had at the meeting between Gmerek, Bauer and Sroka in which Bauer stated that he would effect a bribe.) The testimony requested was vital to the consideration of whether a conspiracy to bribe was being formulated. One of the stenographers who took part of that testimony was not in court and the Judge said: "Apparently one of the other stenographers took that portion. We will have him look it up. In the meanwhile, you can retire to the more comfortable quarters of the deliberation room unless you have another question." It should be noted that the court did not instruct the jury that it must continue its deliberations without the requested testimony (as in People v. Westerman, 7 A.D.2d 943), did not coerce the jury to return a verdict in its absence (as in People v. Lorenz, 16 A.D.2d 135) and did not refuse to answer the jury's question (as in People v. Gonzalez, 293 N.Y. 259). Shortly thereafter, at 6:07 P.M., the jury returned to the courtroom to announce its verdict. Before the verdict was reported neither the court nor any attorney referred to the jury's request for the rereading of the testimony and no inquiry was made whether the jury had revoked that request. The testimony was then available since the stenographers had located it and were both present and ready to read it. However, defense counsel made no objection to the recording of the verdict as the jury was then ready to announce it, and to the discharging of the jury, and made no mention of the fact that the requested testimony had not been reread. It seems that by failing to raise the question at this point, when it might well have been obviated, defendant has waived the right to have it reviewed on appeal. (Cf. People v. Friola, 11 N.Y.2d 157; People v. Murphy, 135 N.Y. 450, 455.)

It may well be that, before the verdict was received, the court or one of the attorneys should have notified the jury that the requested testimony was available and inquired whether they no longer desired it to be read. It is fair to assume that if such an inquiry had been made the reply would have been that the jurors were in agreement that the requested testimony was no longer necessary to reach a verdict. Moreover, in view of all the foregoing circumstances, we do not believe the procedure followed warrants a new trial on the attempted grand larceny count, particularly since the requested testimony was vital only to the conspiracy count, and that count is now being dismissed. Not every failure to comply with a jury's request for information during deliberation is reversible error. ( People v. Miller, 6 N.Y.2d 152, 156; People v. La Marca, 3 N.Y.2d 452, 461.) The test is whether the failure to respond seriously prejudiced the defendant. ( People v. Jackson, 20 N.Y.2d 440, 454-455; People v. Cooke, 292 N.Y. 185, 188.) Since the testimony relating to the December 3 conversation was vital to a proper consideration of whether there was a conspiracy to bribe but did not "pertain to a vital point" (as in People v. Gezzo, 307 N.Y. 385, 396) and was not crucial (as in People v. Lorenz, supra) as regards the attempted grand larceny count, which was established by the conversations of December 19 and 22, we perceive no reversible error in this aspect of the case. The trial was long and the issues were complex; as the court stated in People v. Kingston ( 8 N.Y.2d 384, 387): "Errors are almost inevitable in any trial, improprieties almost unavoidable, but the presence of one or the other furnishes no automatic signal for reversal and retrial."

We have examined all other contentions raised by defendant Bauer concerning the second count of the indictment and have found them to be lacking in merit.

The judgment of conviction of the crime of conspiracy as to defendants Bauer and Sroka 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.