Conspiracy in New York
You can be convicted of conspiracy without having committed an illegal act. If you are charged with conspiracy or believe you are being investigated for conspiracy by the authorities, seek legal advice immediately. The offense is so complex that you will need the assistance of a skilled criminal lawyer to defend yourself against a conspiracy charge.
Article 105 of New York’s Penal Law defines the six degrees of the offense of conspiracy in this state. Each degree of conspiracy is more serious than the last. But the basic offense is the same for each degree: conspiracy occurs when a person agrees to commit a crime.
The elements of conspiracy
There are two parts to the basic offense. To commit conspiracy:
- The person must be found to have the specific intent to both commit the crime or felony and to join with others to commit the crime or felony. Simply knowing about a conspiracy is not enough for a person to be considered part of the conspiracy (see People v. Reyes, 31 N.Y. 3d 930, 931 ).
- The person, or one of her or his co-conspirators, must perform an act that advances the conspiracy. Even if the act is not the actual offense, the conspiracy has been formed to commit (see People v. Ribowsky, 77 N.Y. 2d 284 ).
Suppose Rose’s partner, Ross, has left her for another woman. Rose decides that if she can’t have Ross, no one can. Rose contacts Martin, and they agree Rose will pay Martin $25,000 to kill Ross. Martin then goes to a gun shop and buys a rifle to use to kill Ross.
This is an example of a conspiracy. Rose and Martin have agreed to work together to kill Ross, so both have the intent to kill Ross. Martin then acts to start the conspiracy by buying a rifle to use in Ross’ murder. The gun purchase advances the progress of the conspiracy.
Even though Martin does not commit the offense – the murder of Ross – the conspiracy has been created to carry out. Both Rose and Martin could be charged with conspiracy.
The prosecution’s burden of proof in conspiracy cases
If you are charged with the offense of conspiracy, the prosecution must prove three things before you can be convicted:
- That you agreed with one or more other persons to engage in or to cause an offense to be committed.
- That you did so intending that the offense be carried out.
- That you, or one of the people you agreed to work with to commit the offence or cause it to occur, committed an act that advances the progress of the conspiracy.
If you are over 18 and conspired with a person under 16 years of age to form a conspiracy, the prosecution will also be required to prove that your co-conspirator was under the age of 16. However, it will not have to prove that you knew the co-conspirator was under 16; see Penal Law Section 15.20(3).
What Can You Be Charged with: Six Degrees of Conspiracy
New York State’s Penal Law provides for six degrees of conspiracy. The New York Legislature created six degrees in order to punish those who conspired with juveniles under the age of 16 more severely. If a juvenile is included in a conspiracy, the punishment is increased by one degree for the adults involved in the conspiracy.
Conspiracy in The Sixth Degree: It is a crime
This is the least serious conspiracy offense. You can be charged with Sixth Degree conspiracy if you agree with one or more persons to commit a crime (see Penal Law Section 105.00). Crimes under this offense are class B misdemeanors. They include assault, larceny, graffiti, forgery, and criminal possession of a controlled substance.
Conviction under this offense is punishable by up to three months in jail and/or a fine of up to $500.
Conspiracy in The Fifth Degree: It is a felony
There are two types of Fifth Degree offenses.
Under Penal Law Section 105.05(1), you can be charged with Fifth Degree conspiracy if you agree with one or more persons to commit a felony. Offenses under this degree of conspiracy are class A misdemeanors. They include:
- Sexual abuse
- Sexual misconduct
- Third-degree assault
- Third-degree stalking
- Seventh-degree criminal possession of a controlled substance
The second Fifth Degree offense occurs when you form a conspiracy with a person younger than 16 years of age to commit a crime (see Penal Law Section 105.05(2)). A conviction for Fifth Degree conspiracy is punishable by up to a year in jail and/or a fine of up to $1000.
Conspiracy in The Fourth Degree: It is a more serious class B or C felony
There are three types of Fourth Degree offenses.
Under Penal Law Section 105.10(1), you can be charged with Fourth Degree conspiracy if you agree with one or more persons to commit a class B or C felony. Class B or C felonies may be ‘violent’ or ‘non-violent.’
Violent class B felonies include:
- First-degree assault
- First-degree criminal sexual assault
- First-degree burglary
- Second-degree kidnapping
Non-violent class B felonies include:
- First-degree bribery
- Compelling prostitution
- Sex trafficking
- First-degree money laundering
Violent class C felonies include:
- Second-degree burglary and robbery
- Criminal possession of a weapon in the second-degree
- Assaulting a judge
Non-violent C felonies include:
- First-degree forgery
- Health care fraud
- Insurance or life settlement fraud in the second-degree
The second Fourth Degree offense occurs when you form a conspiracy with a person younger than 16 years of age to commit a felony (see Penal Law Section 105.10(2)).
The third Fourth Degree offense is a conspiracy to commit money laundering in the third degree. This means that you use the proceeds of the criminal sale of a controlled substance, or the proceeds of criminal conduct, in financial transactions that promote the carrying out of criminal conduct (see Penal Law Section 470.10)
A conviction for Fourth Degree conspiracy is a class E felony in New York State. It is punishable by up to four years in jail.
Conspiracy in The Third Degree: Committing a class B or C felony with juveniles
The Third Degree conspiracy offense is designed to punish those adults who conspire with a person under 16 to carry out a class B or C felony, under Penal Law Section 105.13.
A conviction for Third Degree conspiracy is a class D felony in New York State. It is punishable by up to seven years in prison.
Conspiracy in The Second Degree: The most serious class A felony
Penal Law Section 105.15 specifies you can be charged with Second Degree conspiracy if you agree with one or more persons to commit an A-class felony. A-class felonies are strictly ‘violent’ offenses.
These felonies include:
- First-degree arson
- First-degree kidnapping
- First and second-degree murder
- Operating as a major trafficker
A conviction for Second Degree conspiracy is a class B felony in New York State. It carries a sentence of up to 25 years in prison.
Conspiracy in The First Degree: Committing a class A felony with juveniles
The offense of First Degree conspiracy offense is aimed at adults who conspire with a person under 16 to carry out a class A felony under Penal Law Section 105.17.
A conviction for First Degree conspiracy is a class A felony in New York State. The minimum sentence is 15 years behind bars, and a felon can be sentenced to life in prison.
Important Cases That Define Conspiracy
People v. Berkowicz
In People v Berkowitz, 50 N.Y. 2d 333, 343 (1980), it was established that an overt act by any of the co-conspirators to advance or further the conspiracy could also be ascribed to the other co-conspirators to create the conspiracy.
People v. Reyes
A recent case, People v. Reyes, 31 N.Y. 3d 930, 931 (2018), defines the state of mind and amount of participation in the conspiracy that is required before a court will find a defendant guilty of forming a conspiracy.
Reyes explains that just because a person knows about a conspiracy, it is not enough to turn a person into a co-conspirator. This is true even if the person is physically present when others agree to create and participate in the conspiracy.
Before a person can be found to be a co-conspirator, the prosecution must show that the person must intend that an action that constitutes a crime or felony be carried out. It must be her or his desired objective that the crime or felony takes place.
Reyes also follows People v Berkowitz, 50 N.Y. 2d 333, 343 (1980), which stated that an overt act by any of the co-conspirators to advance or further the conspiracy could also be ascribed to the other co-conspirators to create the conspiracy.
People v. Ribowsky
In this case, the Court of Appeals clearly defined the meaning of the overt act that is one of the components of the conspiracy offense. In the decision, the court held that ‘the overt act must be an independent act that tends to carry out the conspiracy, but need not be the object of the crime.’
This action shows that the conspiracy is being put into effect, and is not just still an idea that the co-conspirators are thinking about doing. See People v. Ribowsky, 77 N.Y. 2d 284 (1991).
Who Investigates Conspiracy in New York State?
The New York State Attorney General investigates conspiracies. The Criminal Enforcement and Financial Crimes Bureau and the Organized Crime Task Force specialize in conspiracy investigations.
What Additional Consequences Can You Face for a Conspiracy Conviction?
There are often other consequences beyond fines and/or imprisonment for people convicted of conspiracy.
If you are convicted of conspiracy, you often face the same consequences, as if you were convicted of the actual offense itself. For example, if you were convicted of taking part in a conspiracy to commit a sex crime, you could be required to be registered as a sex offender.
If you were convicted of a conspiracy to distribute drugs, your driver’s license could be suspended, just like the person who actually distributed the drugs lost their license.
Possible Defenses to a Conspiracy Charge
Conspiracy depends on there being an agreement between the conspirators. An effective defense is to raise doubts that you ever agreed to take part in the conspiracy. This could be done by:
- Showing that you might have been present when the conspiracy was formed, but you only know about it and did not agree to join in on it.
- The other party to the conspiracy only pretended to agree, so there is no conspiracy. This would be especially true if the other person in the conspiracy was an undercover police officer, who did not have the intent to commit the crime or felony.
- Waiting for the results of the trials of the other co-conspirators. If they are acquitted of conspiracy, you could be acquitted as well. Indeed, you may not even be prosecuted, as there is no conspiracy.
Why You Need a Lawyer if You Are Facing Conspiracy Charges
If you are charged with conspiracy, or even learn you are being investigated for possible participation in a conspiracy, obtain legal assistance immediately. Conspiracy charges are very serious. What’s worse, conspiracy is an offense for which you can be convicted without having committed a crime or felony.
Depending upon the degree of conspiracy with which you are charged, you could face several years of in prison – perhaps even a life sentence.
The offense of conspiracy is complex. It requires lawyers knowledgeable about:
- The degrees of conspiracy
- How conspiracy is investigated
- How investigators may question you during an interrogation
Lawyers can assist you in making statements during the investigation. And you will need legal counsel that has defended others charged with conspiracy to defend you. Your legal counsel will be able to:
- Analyze your specific situation to determine if you have been properly charged with the offense or the degree of conspiracy
- Develop the best possible defense to the charges, based on their experience in other cases and their understanding of your situation
- Work with lawyers who are defending those accused of being your co-conspirators
- Advocate forcefully on your behalf in all aspects of your defense
Call us for help now.