People v. Bongarzone
500 N.Y.S.2d 532, 1986 N.Y. App. Div. LEXIS 63685, 116 A.D.2d 164 (1986)
Rule of Law:
A telephone conversation instructing a coconspirator to provide a photograph and payment to a purported hired killer constitutes an overt act in furtherance of a conspiracy. Declarations by a coconspirator are admissible against another coconspirator if made during and in furtherance of the conspiracy, provided a prima facie case of conspiracy is established by independent evidence.
Facts:
- A stolen car, allegedly driven by Brown, collided with a utility pole, resulting in the death of two passengers and injury to others.
- Brown fled the accident scene to a nearby motel.
- At the motel, Brown falsely reported that he had been injured during a robbery, rather than reporting the accident.
- Lynn Zachareas, a passenger involved in the accident, reported the accident to the police and identified Brown as the driver.
- While incarcerated and awaiting trial on the accident-related charges, Brown allegedly conspired with fellow inmate Thomas Moore to arrange for the murder of Lynn Zachareas.
- Moore, having contacted authorities and agreed to cooperate, put Brown in contact with undercover police officer Detective Daniel Pantano, who posed as a hired killer.
- Brown provided Pantano with his mother's and sister's telephone numbers.
- Brown instructed Pantano that he would call his mother and instruct her to arrange a meeting with Pantano to provide Lynn Zachareas's address, a photograph of her, and an initial payment for the killing.
- Pantano later spoke to both Brown's mother and sister regarding arrangements for the photograph and money, but no meeting or exchange actually took place.
Procedural Posture:
- Brown was charged under three separate indictments with offenses arising from an automobile accident (e.g., leaving the scene, falsely reporting) and later with crimes related to a murder plot (e.g., criminal solicitation, conspiracy).
- The indictments were consolidated by Criminal Term pursuant to CPL 200.20.
- Following a trial, a jury returned a verdict finding Brown guilty of unauthorized use of a motor vehicle in the third degree, leaving the scene of an accident without reporting as a felony, falsely reporting an incident in the third degree, criminal solicitation in the second degree, and conspiracy in the fourth degree.
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Issue:
1) Does a telephone call made by a defendant to a coconspirator, instructing them to provide a photograph and payment to a purported hired killer, constitute an overt act in furtherance of a conspiracy? 2) Is a coconspirator's recorded conversation with an undercover officer admissible evidence against the defendant when a prima facie case of conspiracy has been established by independent evidence?
Opinions:
Majority - Brown, J.
Yes, a telephone call made by a defendant to a coconspirator instructing them to provide a photograph and payment to a purported hired killer constitutes an overt act in furtherance of a conspiracy, and recorded conversations of a coconspirator with an undercover officer are admissible against the defendant when a prima facie case of conspiracy has been established by independent evidence. The court concluded that sufficient evidence supported Brown's conviction for criminal solicitation because he provided phone numbers for the purported killer to arrange payment and information, and the jury could reasonably conclude he believed an agreement had been reached with Detective Pantano for the murder. Regarding conspiracy, the court found Brown's telephone call to his mother, instructing her to provide a photograph of Ms. Zachareas to Pantano, constituted an overt act. This was an independent act designed to carry out the conspiracy, not merely the formation of the agreement itself, as its purpose was to facilitate the killer obtaining identifying information for the victim. The court also held that recorded conversations between Brown's mother and Detective Pantano were properly admitted as declarations of a coconspirator. A prima facie case of conspiracy had been established by independent evidence, including Brown's agreement with Moore and Pantano, and his act of providing phone numbers to facilitate the plan, before the mother's declarations were admitted. The court also affirmed the consolidation of the indictments, finding the evidence of the automobile accident relevant to establish motive for the murder plot, and the murder plot relevant to show consciousness of guilt for the accident charges. Finally, the court acknowledged that recorded conversations between Brown and Pantano were obtained in violation of Brown's right to counsel on the earlier accident-related charges, but ruled their admission was harmless error. The conversations primarily concerned the later conspiracy and solicitation crimes, and any incriminating effect on the earlier charges was overwhelmed by other evidence of guilt.
Analysis:
This case clarifies the broad scope of what constitutes an "overt act" in conspiracy law, affirming that preparatory communications like telephone calls can satisfy this requirement if they are independent acts furthering the criminal objective. It also reinforces the coconspirator exception to the hearsay rule, underscoring that a prima facie case of conspiracy must be established by independent evidence before such declarations are admitted. Furthermore, the court's application of the harmless error doctrine in the context of a right to counsel violation on separate charges provides guidance on when such constitutional errors may be deemed non-prejudicial given overwhelming independent evidence.
