People v. Lubow

29 N.Y.2d 58, 323 N.Y.S.2d 829, 272 N.E.2d 331 (1971)

 

RULE:

If the conduct would be a crime it is criminal solicitation in the third degree, a violation; if the conduct would be a felony it is criminal solicitation in the second degree, a class A misdemeanor; and if the conduct would be murder or kidnapping in the first degree it is criminal solicitation in the first degree, a class D felony. Nothing need be done under the statute in furtherance of the communication to constitute the offense. The communication itself with intent the other person engage in the unlawful conduct is enough. It needs no corroboration.

FACTS:

Defendants were convicted of criminal solicitation to commit a felony. In the complaint, the accused were charged with a class A misdemeanor because they “attempted to induce the deponent to obtain precious stones on partial credit with a view towards appropriating the property to their own use and not paying the creditors” constituting grand larceny, a felony. The accused contended that the solicitation statute was unclear. The trial court convicted them for criminal solicitation in the second degree, a class A misdemeanor. On appeal, the accused contended that the solicitation statute was unclear. Under the statute, they could have been charged with a violation for solicitation for committing a crime, or a class A misdemeanor for solicitation for committing a felony. However, a felony was a crime and the accused claimed that the information failed to state under which section of the statute they were charged. Thus, the trial court was without jurisdiction to hear the offense with which they were charged. The Appellate Term of the Supreme Court in the First Judicial Department affirmed the judgement. The case was appealed to the Court of Appeals of New York.

ISSUE:

Was conviction for second-degree solicitation proper?

ANSWER:

Yes

CONCLUSION:

The Court affirmed the lower court. It explained that the basic statutory definition of criminal solicitation is that with intent that another person shall "engage in conduct constituting a crime" the accused "solicits, requests, commands, importunes or otherwise attempts to cause such other person to engage in such conduct.” As it has been noted, nothing need be done under the statute in furtherance of the communication ("solicits, commands, importunes") to constitute the offense. The communication itself with intent the other person engage in the unlawful conduct is enough. It needs no corroboration.

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