People v. Lubow
272 N.E.2d 331, 323 N.Y.S.2d 829, 29 N.Y.2d 58 (1971)
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Rule of Law:
The crime of criminal solicitation is complete when a person, with the intent that another person engage in conduct constituting a crime, solicits or otherwise attempts to cause that person to engage in such conduct. The crime does not require that the solicited person agree, take any action in furtherance of the crime, or that the communication be corroborated.
Facts:
- Defendant Lubow, a jeweler, owed complainant Max Silverman $30,000 for diamonds on unpaid notes.
- Lubow introduced Silverman to defendant Gissinger, describing him as a business associate.
- In October 1967, Silverman met with both defendants and told them he was facing bankruptcy because of the debt Lubow owed him.
- In response, Lubow and Gissinger proposed a fraudulent bankruptcy scheme, also known as a "bust out operation."
- The plan required Silverman to purchase large quantities of diamonds on partial credit, sell them for cash below cost to inflate his credit rating, and then make a final, very large purchase on credit.
- After the final purchase, Silverman was to declare bankruptcy, falsely claim he lost the cash proceeds gambling, and then split the money with Lubow and Gissinger.
- Silverman reported the proposal to the District Attorney.
- The following month, equipped with a police-provided tape recorder, Silverman met with the defendants and recorded conversations that substantiated his account of the illegal proposal.
Procedural Posture:
- The State of New York charged defendants Lubow and Gissinger with criminal solicitation in the Criminal Court of the City of New York, a court of first instance.
- The defendants were tried before a three-Judge panel.
- A majority of the panel found the defendants guilty of criminal solicitation to commit a felony, a class A misdemeanor under Penal Law § 100.05.
- The defendants, as appellants, appealed their conviction to the Appellate Term of the Supreme Court, an intermediate appellate court.
- The Appellate Term unanimously affirmed the convictions.
- The defendants, as appellants, were granted leave to appeal to the New York Court of Appeals, the state's highest court.
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Issue:
Does the act of soliciting another person to commit a felony, with the intent that they do so, constitute the completed crime of criminal solicitation under New York Penal Law § 100.05, even if the solicited person takes no action to commit the felony?
Opinions:
Majority - Bergan, J.
Yes. The act of soliciting another to commit a felony, with the requisite criminal intent, constitutes the completed crime of criminal solicitation. The New York criminal solicitation statute, Penal Law § 100.05, defines the offense as soliciting, requesting, or otherwise attempting to cause another person to engage in conduct constituting a felony, with the intent that they do so. The court found that the crime is complete upon the communication itself. It does not require any overt act in furtherance of the solicited crime, nor does it matter that the solicited party refused or that the ultimate crime was never consummated. The statute is a valid exercise of legislative power, intended to prevent the harm that could result from such inducements and to protect people from being exposed to them. The evidence, including Silverman's testimony and the tape recording, was sufficient to establish that Lubow and Gissinger importuned Silverman to engage in grand larceny, a felony, thereby satisfying the elements of the statute.
Analysis:
This case solidifies the legal standing of New York's then-new criminal solicitation statute, establishing it as a distinct inchoate crime separate from attempt or conspiracy. The decision clarifies that the gravamen of the offense is the communication itself, driven by criminal intent, thereby allowing for law enforcement intervention before a planned crime progresses further. By affirming a conviction based on a single witness's testimony (though corroborated by a recording here), the court highlights the statute's potential challenges, particularly the heavy reliance on witness credibility in cases lacking independent proof. This ruling sets a precedent that the act of asking is itself a punishable offense, broadening the scope of criminal liability for anticipatory crimes.
