Opinion
3196/09.
Decided July 7, 2011.
Howard Kirsch, Esq., Brooklyn, New York, for Defendant Anthony Canales.
Albert Brackley, Esq, New York, New York, for Defendant Luis Lopez.
James Koenig, Esq., New York, New York, for Defendant Aishan Reyes.
Robert DePalma, Esq., Staten Island, New York, for Defendant Sandro Rodriguez.
Lawrence Oh, Esq., Maria Haymandou, Esq., Jose Nieves, Esq. Frank Santarpia, Esq., Kings County District Attorney's Office, Brooklyn, New York, for the People.
The above-captioned defendants were charged in Indictment 3196/2009 with Conspiracy in the First Degree and related violent and narcotics crimes. At trial, all were acquitted of Conspiracy in the First Degree. However, issues presented at trial concerning the elements of the crime were not readily resolved under the relevant statute or the decisions of the New York courts interpreting the statute.
All four defendants were acquitted at trial of Conspiracy in the First Degree. All but Sandro Rodriguez were convicted of Conspiracy in the Second Degree, and all but Canales were convicted of other charges in the indictment.
Penal Law Section 105.17 defines the crime of Conspiracy in the First Degree, a class A-I felony, in these words:
A person is guilty of conspiracy in the first degree when, with intent that conduct constituting a class A felony be performed, he, being over eighteen years of age, agrees with one or more persons under sixteen years of age to engage in or cause the performance of such conduct.
In broad terms, then, one commits the crime when he or she, being over 18 years of age, is a member of a conspiracy to commit a class A felony and when a child under the age of 16 is also a member of the conspiracy. In this case, the People alleged the existence of a three year narcotics conspiracy, one that dozens of individuals joined and left over time. Youths under 16 were members of the conspiracy during limited portions of those three years. The issues that arose because of those circumstances were whether a defendant, to be guilty,
1. must have known that a child under 16 was a member of the conspiracy;
2. must have had contact or dealings with a conspirator under 16; and/or
3. must have been a member of the conspiracy during the time in which a fellow conspirator was under 16 years old.
I
Erik Rodriguez organized a drug ring when he was released from prison early in 2006. The conspirators sold cocaine through a delivery service in neighborhoods like Sunset Park, Bay Ridge, Bensonhurst, and Dyker Heights. Customers could order cocaine with a phone call, and a car would be dispatched to make the delivery. Erik Rodriguez purchased and "stashed" supplies of cocaine in amounts sometimes exceeding four ounces, the weight needed for the class A-II felony of Criminal Possession of a Controlled Substance in the Second Degree.
Erik Rodriguez, the four captioned defendants, and others were arrested on the night of March 20/21, 2009. Indictment 3196/2009 charged a total of 42 defendants with being members of the Erik Rodriguez conspiracy. The People's theory was that these and other individuals agreed that the class A-II felony of Criminal Possession of a Controlled Substance in the Second Degree should be committed. Members of the conspiracy came and went over the years, but the People's position was that the purposes and basic structure of the conspiracy remained constant from 2006 to 2009. At least two conspirators were alleged to have been involved at times before their 16th birthdays, and 40 indicted individuals were as a result charged with Conspiracy in the First Degree.
During trial, the People expressed three inter-related views on First Degree conspiracy law:
1. a conspirator over 18 would be guilty even if he or she did not know that any fellow conspirator was under 16, and even if he or she affirmatively believed that all conspirators were over 16;
2. a conspirator over 18 would be guilty even if he or she never personally met or dealt with one of the conspirators who was under 16; and
3. a defendant over 18 who was in the conspiracy at any point from 2006 to 2009 would be guilty even if the conspirators who were under 16 were not in the conspiracy at the same time.
The court agreed with the first proposition, and instructed the jury accordingly. The court was troubled by the People's second position, but felt bound by precedent to charge on the point in accordance with the People's view. The court disagreed with the People's third contention, and instructed the jurors that a defendant who had been over 18 while in the conspiracy would be guilty under the First Degree count only if he had been a member of the conspiracy at the same time as another member who was then under 16. This opinion will explain the court's three rulings.
II
Penal Law Section 105.17 was first enacted in 1978. The legislative history is sparse. The bill jacket material does little more than confirm the obvious — the Legislature intended that extremely serious penalties apply to those who endeavored to mask their own participation in class A felonies by employing children in the "front lines." For example, drug dealers were thought to be corrupting and exploiting children by employing them as street retailers (New York State Assembly Memorandum in Support of Assembly Bill 11001-A). But nothing in the bill jacket sheds clear light on the three issues being considered here.
The case law interpreting Section 105.17 is almost as sparse. In 2003 one trial court took the position that the First Degree conspiracy charge was made out only if it was intended that a conspirator under 16 be the one to commit the class A felony that was the subject of the agreement. People v. Austin, 2 Misc 3rd 431 (Sup Ct Kings Co 2003). The court's view was that only this rule properly took into account the Legislature's intent to punish those who used children to avoid personal criminal liability. However, this position was rejected on appeal — quite understandably, given its lack of support in the plain language of the statute. People v. Austin , 9 AD3d 369 (2nd Dep't 2004); see also People v. Alston, 5 Misc 3d 233 (Sup Ct Kings Co 2004) (Chambers, J.).
Apart from Austin, the only appellate decision interpreting Section 105.17 is People v Ackies , 79 AD3d 1050 (2nd Dep't 2010) (appeal pending). The Court resolved a People's appeal of a number of orders dismissing or reducing charges against numerous defendants, and as a result the underlying facts are not clearly set out. In a nutshell, the case involved an overarching "umbrella" conspiracy which included three subordinate conspiracies, each controlling narcotics business in a particular section of a public housing project. Retail workers in any one of the subordinate conspiracies had no particular reason to know the identities of workers in the other subordinate conspiracies. The trial court found the evidence before the grand jury insufficient to show that certain adult defendants knew they were conspiring with individuals under 16, and dismissed charges of Conspiracy in the First Degree.
In the Second Department, the People argued at length that when an adult defendant is charged with First Degree conspiracy, the People need prove only that a juvenile is also a member of the conspiracy, and not that the adult was aware of the juvenile. Indeed, the People argued that the adult and the juvenile need not be members of the conspiracy at the same time. Only in part of a footnote did the People assert in the alternative that, in the cases on appeal, the participation of the juveniles had not been "peripheral" and that it was "likely" known to "most" conspirators. The Second Department appears to have agreed with much of the People's position. In a terse opinion the Court reinstated First Degree conspiracy charges against a number of defendants. The Court stated,
This footnote appeared on page 31 of the People's appellate brief. The footnote is one of many passages in the brief that is currently under seal.
Proof of a defendant's knowledge of the identities and specific acts of all his co-conspirators is not necessary where the circumstantial evidence establishes the defendant's knowledge that he is part of a criminal venture which extends beyond his personal participation.
People v. Ackies , 79 AD3d 1050, 1056 (2nd Dep't 2010).
Apparently the only remaining opinion addressing the reach of Section 105.17 is a habeas corpus decision issued by then District Judge Chin in 2004. Judge Chin concluded that a defendant can be convicted under the statute even if he does not know that a co-conspirator is under 16, or erroneously believes the co-conspirator to be older. Llaca v. Duncan, 2004 US Dist LEXIS 7916; 2004 WL 964113 (SDNY May 4, 2004). The Judge relied on this language from Penal Law Section 15.20(3):
Notwithstanding the use of the term "knowingly" in any provision of this chapter defining an offense in which the age of a child is an element thereof, knowledge by the defendant of the age of such child is not an element of any such offense and it is not, unless expressly so provided, a defense to a prosecution therefor that the defendant did not know the age of the child or believed such age to be the same as or greater than that specified in the statute.
Finally, model jury instructions for conspiracy crimes have been promulgated by the court system's Committee on Criminal Jury Instructions. The instructions for Conspiracy in the First Degree and for other conspiracy crimes containing the same age requirement provide that
Under our law, it is not an element of this crime that the defendant knew the age of the person[s] with whom the agreement was made. Thus, it is not a defense to a prosecution for this crime that the defendant did not know that [one of] the person[s] with whom the agreement was made was [were] under 16 years of age, or believed that [all of] the person[s] with whom the agreement was made was [were] 16 years of age or more.
CJI2d (NY) Penal Law Section 105.17. The only authority for this language cited by the committee was Penal Law Section 15.20(3).
It is with this sketchy grounding in authority that the court addresses the three issues before it.
III
The first question for the court is whether a defendant, to be guilty of Conspiracy in the First Degree, must know that a fellow conspirator is under the age of 16. On that question this court agrees with Judge Chin and the Criminal Jury Instructions committee.
Notably, the statute on which they rely, Penal Law Section 15.20(3), is not a snug fit here. If read literally, the statute might seem to apply only to penal provisions which contain an express "knowingly" element, and Section 105.17 has no "knowingly" element. But it would be reading Section 15.20(3) with far too technical an eye to conclude that the Legislature limited the section's reach to knowledge crimes. Notably, the many sex offense statutes with age provisions likewise lack an express "knowingly" element. Yet those statutes have long been read to impose strict liability as to age. See, e.g., People v. Coleman, 74 NY2d 381, 385 (1989).
This court concludes that it is no defense to a charge of Conspiracy in the First Degree that a defendant was unaware that a co-conspirator was under 16 years old, or affirmatively believed the child was older. Accordingly, the jurors at defendants' trial were instructed on the age element in conformity with the Criminal Jury Instructions charge.
IV
The second question for the court stems from the People's view that a conspirator is guilty of the First Degree offense if he not only is unaware of the age of the young conspirator, but does not even know of that individual's existence. In this case, for example, one of the youths under 16 was a young woman who accompanied her boyfriend as he delivered drugs to customers. If the customer approached the delivery car on the passenger side, this young woman would often pass the customer's money to her boyfriend, and pass the cocaine to the customer. She was not paid, but her boyfriend used his earnings to finance their joint lifestyle. As to most of the defendants charged with Conspiracy in the First Degree, there was no proof that they ever had contact with this young woman, knew of her role, or were even aware of her existence.
The People argue that these defendants still were guilty of First Degree conspiracy. They view the conspiracy laws with age elements as in terrorem statutes, designed to punish severely anyone who joined a conspiracy with young members even by chance, so as to discourage everyone from joining conspiracies. On this view, the random nature of the punishment of the unknowing is salutary precisely because it is random: since anyone may find, after the fact, that a youth became a co-conspirator, few will dare enter conspiracies.
This court finds no support in the Penal Law or in the legislative history for the People's theory. True, to agree with others to commit a class A felony, without more, is to commit Conspiracy in the Second Degree, a class B felony. Joining such a conspiracy when people under 16 are part of it exposes one to dramatically more punishment for the class A-I felony of Conspiracy in the First Degree — punishment in a range that (as in this case) often is far more substantial even than that set for the substantive offenses that are the goal of the conspiracy. But that does not show that the Legislature sought to impose punishment on those conspirators who acted wholly independently of and never knew the young conspirators.
When Section 105.17 was adopted the Legislature also created three lesser crimes applicable where adults conspired with youths under 16. See Penal Law Sections 105.05(2), 105.10(2), 105.13. There are no sentences prescribed for those crimes that are consistent with the People's in terrorem theory. For the relevant subsection of the Fifth Degree conspiracy statute, an offender who conspires with a youth to commit a crime is guilty of a class A misdemeanor. Under the Fourth Degree statute, one who conspires with a youth to commit a felony is guilty of a class E felony. Under the Third Degree statute, one who conspires with a youth to commit a class B or C felony is guilty of a class D felony. The possible punishments do not suggest a legislative scheme to punish harshly all those who conspire with youths so as to raise the ante for anyone involved, even unknowingly, in a conspiracy with a youth. Still less do they evince a legislative design to deter all conspiracies by providing random, harsh terms of incarceration. These punishments are instead generally consistent with the philosophy that conspirators who are not criminally liable for the object crime are not punished as seriously as those who commit the object crime.
The First Degree conspiracy statute thus stands alone. Those who are co-conspirators with youths to commit a class A-II felony (or a class A-I felony) are liable as class A-I felons. The simultaneous passage of the companion crimes is inconsistent with a theory that the Legislature's purpose was to impose much more severe punishment on all who conspired with youths, to deter anyone from joining conspiracies. Had the Legislature meant to impose arbitrary punishment to discourage conspiracies, it presumably would have acted more broadly. Notably too, all we know from the legislative history is that the aim of Section 105.17 was to punish those who enlisted young people to commit crimes in an effort to shield themselves from punishment for those crimes. That goal is not much furthered when the section is applied to conspirators who are not even aware of the existence of the young conspirators.
This court was therefore reluctant to tell the jury that a defendant would be guilty of Conspiracy in the First Degree if he had never met or even been aware of the youths under 16 who were fellow conspirators. But for two reasons this court ultimately agreed that the People were entitled to that charge. First, the statute provides that a person commits Conspiracy in the First Degree when, with the requisite intent, he, "being over eighteen years of age, agrees with one or more persons under sixteen years of age" to commit a class A felony. It has long been clear that this language does not require that the defendant have personally met and made an agreement with every co-conspirator. People v. Riggins , 28 AD3d 934, 935-36 (3rd Dep't 2006); People v. Brooks, 268 AD2d 889, 890-91 (3rd Dep't 2000); People v. Kiszemik, 113 Misc 2d 462 (Sup Ct NY Co 1982) (Rothwax, J.). And nothing in the statutory language adds a requirement that the defendant met and made an agreement with a co-conspirator under 16. Accordingly, the statutory language does not support a view that guilt should attach only to those who personally recruit or employ the young conspirators, or only to those who deal directly with them. As in Alston, it would be an act of judicial legislation for this court to add such a condition to the Legislature's words.
Moreover, appellate authority now appears to support the People's position. As noted above, in People v Ackies, the People submitted the argument that a member of the conspiracy need not have even been aware of a young conspirator to be liable for the First Degree crime. The Second Department seemed to agree, holding a defendant responsible if he simply had knowledge that he was part of a criminal venture extending beyond his individual participation. While the opinion is not completely clear, based on the briefing it is implausible in the extreme that the Court did not accept the position pressed by the People here.
For theses reasons, the court charged the jurors that, to be guilty of First Degree conspiracy, a defendant need not himself have personally been aware of or familiar with a conspirator under 16.
V
As noted, over the years numerous individuals joined and left the Erik Rodriguez conspiracy. The People asked that the jury be charged to convict of First Degree conspiracy even a defendant who left the conspiracy before a youth joined it, or a defendant who joined the conspiracy only after a youth left the conspiracy or turned 16. The court declined to accept the People's view that one who joins an agreement to commit a class A felony is guilty of First Degree conspiracy if a youth under 16 has ever been a member, or ever will be, even if the period of the youth's participation did not overlap his.
The People's arguments were two. First, the People note that a conspirator is always "bound" by the statements and acts of his co-conspirators, even if those statements and acts occur at a time when the particular conspirator is not a member. Second, in the People's view the Legislature intended to make all conspirators liable for the First Degree crime, even if their membership did not overlap with that of a conspirator under 16, to deter individuals from entering conspiracies in the first place.
The court finds those arguments unpersuasive. Certainly, evidence about the words and acts of conspirators are admissible against a defendant even if those words and acts preceded or followed his time in the conspiracy. But the evidence comes in only to prove the defendant's guilt of the crimes for which he otherwise could be charged, and not to add to the degree of his liability. Thus, a co-conspirator's criminal acts may help prove that the conspiracy existed and who its members were, but a defendant is not liable for the substantive crimes themselves unless he participated in them as an accomplice. People v. McGee, 49 NY2d 48 (1979).
Further, a defendant who agrees with others to commit a class C felony is not guilty of any crime more serious than Fourth Degree conspiracy even if, after he leaves the conspiracy, its members agree to commit more serious crimes. Likewise, the fact that a conspiracy employs youths during a period when a sometimes conspirator is not a member should not "bind" that conspirator to the extent of changing the level of that conspirator's criminal responsibility.
The Legislature's intent was discussed in the preceding section. There is nothing in the language or in the legislative history of Section 105.17 that would cause one to believe that the Legislature intended to impose arbitrary additional levels of liability on a conspirator for the employment of children at times when the conspirator was not part of the organization. Indeed, the history suggests that the Legislature wanted to deter the actions of the individuals who themselves actually put the children to work. Moreover, as noted, other conspiracy crimes involving youths were created by the Legislature when Section 105.17 was enacted. In none of them did the Legislature dramatically raise the level of punishment, so as to deter anyone, and everyone, from entering into a conspiracy. Had the Legislature been so motivated as to the new First Degree crime, no reason appears why it would not have imposed similar enhanced penalties with respect to the other crimes it created.
Moreover, the People's theory would lead to absurd results. Imagine that Able, Baker, and Charlie agree to commit class A-II drug felonies and that they enlist drivers to make deliveries. After a year, Able retires and goes to Florida. After another year, Charlie advises Baker that he intends to hire Charlie's fifteen year old nephew to deliver drugs. Baker quits, outraged that Charlie would employ a teenager. Charlie proceeds with his plan, continuing to market drugs. Four years later, when the nephew is 19, 18 year old Dog joins the conspiracy at a low level and delivers drugs. A week later, all the conspirators are arrested.
On the People's theory, Able is guilty of a class A-I felony based on acts of which he was unaware, and which occurred a year after he lost touch with the conspirators. Baker is guilty of a class A-I felony even though he bitterly opposed the corruption of a youth and left the conspiracy to protest hiring the nephew. And Dog is guilty of a class A-I felony even though he had no idea that a youth under 16 had ever been employed and even though, during his short term as a seller, the nephew was 19 years old.
The People's theory thus would lead to random and arbitrary liability, based not on the actual culpability of individuals but on events outside their control and even their knowledge. It is not impossible to imagine laws, for example the felony murder laws, that are capable of having such effect. See, e.g., People v. Hernandez, 82 NY2d 309 (1993) (one police officer kills another in confrontation with fleeing felons); People v. Gray, 278 AD2d 151 (1st Dep't 2000) (police kill hostage detained by fleeing co-defendant blocks away from defendant's location). But the felony murder laws have been applied in this manner for many centuries, and have been re-enacted in modern times. There is no sign that the 1978 conspiracy laws were intended to apply so unevenly, and so completely without regard to individual fault.
The court had similar objections to the People's second position, in Section IV, but felt obliged to rule on that issue for the People. But here there is no appellate authority that aids the People. And, to say that a defendant is or is not guilty of First Degree conspiracy based on the dates of his membership does not require the addition of new, limiting elements in the way that a rule requiring direct dealings with a youth would. It is natural to read the language of Section 105.17 with a limitation that a defendant, being over 18, must be part of the agreement contemporaneously with the membership of a conspirator under 16.
Defendants like the hypothetical Able, Baker, and Dog might argue that an appellate court should interpret the statute as this court does to avoid the serious due process issues that would arise from enforcement of the statute against them. See People v. Nieves, 36 NY2d 396, 400 (1975); People v. Kaiser, 21 NY2d 86, 103 (1967). Given this court's determination, that argument need not be addressed here.
Accordingly, the court instructed the jurors at trial that they could convict a defendant of Conspiracy in the First Degree only if he, being over 18 years of age, was a member of the conspiracy while a person under 16 was also a member.
***
Section 105.17 has undergone surprisingly little analysis in the case law. This court concludes, based on what authority there is, that to be guilty of First Degree conspiracy, a defendant need not know that a co-conspirator is under 16, and may even believe that all members are over 16. Nor, to be guilty, must the defendant be aware of the existence of a particular conspirator who is under 16, much less have had any particular level of personal involvement with the youth. But to obtain a conviction the People must prove that the defendant and co-conspirator under 16 were members of the conspiracy at the same time.