The crime of conspiracy is an offense separate from the crime that is the object of the conspiracy. Once an illicit agreement is shown, the overt act of any conspirator may be attributed to other conspirators to establish the offense of conspiracy and that act may be the object crime. But the overt act itself is not the crime in a conspiracy prosecution; it is merely an element of the crime that has as its basis the agreement. It is not offensive to permit a conviction of conspiracy to stand on the overt act committed by another, for the act merely provides corroboration of the existence of the agreement and indicates that the agreement has reached a point where it poses a sufficient threat to society to impose sanctions. But it is repugnant to our system of jurisprudence, where guilt is generally personal to the defendant, to impose punishment, not for the socially harmful agreement to which the defendant is a party, but for substantive offenses in which he did not participate. The Court of Appeals of New York refuses to sanction such a result and thus declines to follow the rule adopted for federal prosecutions. Accessorial conduct may not be equated with mere membership in a conspiracy and the State may not rely solely on the latter to prove guilt of the substantive offense.
The defendants were all involved, in varying degrees, in a scheme whereby certain Rochester police officers would be paid to prevent the arrest of defendants' gambling associates while enforcing the law against competitors. At trial, defendants asserted the defense of coercion and the affirmative defense of entrapment. They were convicted of bribery in the second degree and conspiracy in the third degree. On appeal, the Appellate Division of the Supreme Court in the Fourth Judicial Department affirmed the convictions and the case was appealed to the Court of Appeals of New York.
Should McGee be convicted of bribery?
The court modified the verdict as to McGee because the evidence had not shown his involvement in the bribery aspect of the charges and accessorial conduct could not be equated with mere membership in a conspiracy. It held that the liability for the substantive offense could not be independently predicated upon defendant's participation in an underlying conspiracy, and there was no evidence of his complicity in the bribery counts submitted to the jury, and thus no basis for accomplice liability. Nevertheless, the court affirmed the other convictions, as there was sufficient proof of accuracy of the tapes to warrant their admission and the chain of custody problems went to the weight of the evidence, not its admissibility.