People v. Sisselman
542 N.Y.S.2d 801, 1989 N.Y. App. Div. LEXIS 7520, 147 A.D.2d 261 (1989)
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Rule of Law:
For the affirmative defense of renunciation to a charge of conspiracy or solicitation, a defendant's effort to prevent the object crime is deemed successful if the effort would have prevented the crime had the coconspirator actually intended to commit it.
Facts:
- Defendant Sisselman suspected Louis Marrero was dating his extramarital girlfriend or giving her drugs.
- Sisselman solicited Dennis Patterson to break Marrero's limbs with a baseball bat.
- Sisselman paid Patterson $250 to carry out the assault.
- Unbeknownst to Sisselman, Patterson was acting as a police agent and recorded their conversations.
- The planned assault on Marrero was never accomplished.
- Sisselman later asserted that he told Patterson not to carry out the assault before he learned Patterson was a police informant.
Procedural Posture:
- Defendant was charged with conspiracy and solicitation.
- At trial in County Court, the defendant raised the affirmative defense of renunciation.
- The court instructed the jury that for the renunciation defense to succeed, the defendant's effort must have been the 'sole and motivating inducement' for the crime's prevention.
- The jury convicted the defendant on all charges.
- Defendant appealed the conviction to the Appellate Division of the Supreme Court of New York, arguing the jury instruction was erroneous.
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Issue:
Does a jury instruction requiring a defendant's renunciation to be the 'sole and motivating' reason for the non-commission of a crime improperly deny the defendant the affirmative defense of renunciation when the coconspirator was a police agent who never intended to commit the crime?
Opinions:
Majority - Yesawich, Jr., J.
Yes, such an instruction improperly denies the defense. The affirmative defense of renunciation serves to encourage the prevention of substantive crimes and to allow a defendant to manifest a lack of dangerousness by abandoning a criminal purpose. Requiring a defendant's efforts to be the 'sole' cause of prevention is an overstatement of the law and makes the defense impossible when the other party is a police agent who never intended to commit the crime. The proper standard is that a defendant’s efforts to prevent the object crime should be deemed successful if they would have prevented the crime in the event the coconspirator had actually intended to carry it out. This allows the defendant the opportunity to rebut the presumption of dangerousness inherent in the charges of solicitation and conspiracy, even if actually preventing the crime was impossible from the outset.
Analysis:
This decision clarifies the application of the renunciation defense in cases involving police informants or 'sting' operations where the object crime is factually impossible. It shifts the legal inquiry from the actual result (prevention of the crime) to a hypothetical one focused on the sufficiency of the defendant's efforts. The court establishes a new standard, ensuring that defendants who genuinely and voluntarily abandon their criminal enterprise are not unfairly deprived of the defense simply because their coconspirator was a government agent. This precedent protects the underlying purpose of the renunciation defense, which is to assess a defendant's 'firmness of purpose' and encourage withdrawal from criminal activity.
