Criminal Solicitation in New York

“Requesting Another Person Commit a Crime or Felony”

You can be convicted of criminal solicitation even if the person you attempt to cause to commit a crime or felony does nothing. If you are charged with criminal solicitation, or even believe you are being investigated for criminal solicitation by the authorities, seek legal advice immediately.

The offence of criminal solicitation is so complex that even skilled criminal lawyers may find it challenging to precisely define what offence you have been charged with soliciting another person to commit. An experienced criminal lawyer’s assistance will be essential if you are to defend yourself against a charge of criminal solicitation.

Criminal solicitation defined

Article 100 of New York’s Penal Law defines the five degrees of the offence of criminal solicitation in this state. Each degree of criminal solicitation is more serious than the last. But the basic offence is the same for each degree: criminal solicitation occurs when a person attempts to persuade another person to commit a crime or felony.

The Elements of Criminal Solicitation

There are two parts to the basic offence. To commit criminal solicitation,

The person must be found to have requested, tried to persuade or commanded another person to commit a crime and;
People v. Lubow, 29 N.Y. 2d 58 [1971)].

The person solicited does not have to take any activity to carry out the crime. All that is required is that the accused person has tried to persuade someone to commit a crime with the intent that the solicited person commits the crime.

Suppose James knows that Sandra keeps $10,000 in a locked box under her bed. James wants to steal the money but does not want to break into Sandra’s home. Instead, James asks Martha, Sandra’s close friend, to steal the box the next time she visits Sandra. James offers to give Martha $2,500 if she steals the box and brings it to him. Martha goes to visit Sandra and does not steal the box.

This is an example of a criminal solicitation. James has solicited Martha to commit larceny by asking her to take the box from Sandra without her knowledge. By offering to give Martha $2,500, James made it clear he intended that Martha commit larceny and receive some of the proceeds from the box. James could be charged with criminal solicitation. Martha does not have to accept James’ request in order for James to be charged.

The prosecution’s burden of proof in criminal solicitation cases

If you are charged with the offence of criminal solicitation, the prosecution must prove two things before you can be convicted:

That you solicited, requested, importuned or otherwise attempted to cause another person to engage in activity that is a crime or felony; and
That you did so intending that the other person carries out the crime or felony.

If you are over 18, and solicited, requested, commanded, importuned or otherwise attempted to cause a person under 16 years of age to engage in activity that is a crime or felony, the prosecution will also be required to prove that the person was under the age of 16.

However, it will not have to prove that you knew the person was under 16; see Penal Law§15.20.

What can you be charged with: Five degrees of criminal solicitation

New York State’s Penal Law provides for five degrees of criminal solicitation. The New York Legislature created five 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.

Criminal Solicitation in The Fifth Degree: It’s a violation

This is the least serious criminal solicitation offence. You can be charged with Fifth Degree criminal solicitation if:

You solicit, request, importune or otherwise attempt to cause another person to commit a crime
With the intent that the other person commits the crime (see Penal Law§100.00).

Crimes under this offence are Violations. They include disorderly conduct, hazing in the second degree, harassment in the second degree, loitering, trespassing, and unlawfully posting advertisements.

A conviction under this offence is punishable by up to 15 days in jail and/or a fine.

Criminal Solicitation in The Fourth Degree: It’s a felony

There are two types of Fourth Degree offences. Under Penal Law §100.05, you can be charged with Fourth Degree criminal solicitation if:

You solicit, request, importune or otherwise attempt to cause another person to commit a felony
With the intent that the other person commits the felony.

Offences under this degree of conspiracy are class A misdemeanors. They include sexual abuse, sexual misconduct, third-degree assault, third-degree stalking, and seventh degree of criminal possession of a controlled substance. The second Fourth Degree offence falls under Penal Law §100.05(2). You can be charged with Fourth Degree criminal solicitation if:

You are over 18 years old, and solicit, request, importune or otherwise attempt to cause another person under 16 years of age to commit a crime
With the intent that the person under 16 commits the crime.

A conviction for Fourth Degree criminal solicitation is punishable by up to a year in jail and/or a fine of up to $1000.

Criminal Solicitation in The Third Degree: It’s an E felony

Under Penal Law§100.08, you can be charged with Third Degree criminal solicitation if:

You are over 18 years old, and solicit, request, importune or otherwise attempt to cause another person under 16 years of age to commit a felony
With the intent that the person under 16 commits the felony.

E felonies include abandonment of a child, bigamy, computer trespass, eavesdropping, luring, second-degree identity theft and second-degree perjury.

A conviction for Third Degree criminal solicitation is a class E felony in New York State. It is punishable by up to four years in jail.

Criminal Solicitation in The Second Degree: It’s a D felony

The Second-Degree criminal solicitation offence is designed to punish those adults who solicit a person to carry out an A felony, under Penal Law§100.10.

A conviction for Second Degree criminal solicitation is a class D felony in New York State. It is punishable by up to seven years’ imprisonment.

Criminal Solicitation in The First Degree: It’s a C felony

Penal Law§100.13 focuses on protecting minors. You can be charged with First Degree criminal solicitation if you are over 18 years of age and solicit a person under 16 to commit an A felony. Felonies are strictly ‘violent’ offences.

These felonies include first-degree arson, terrorism, first-degree kidnapping, first and second-degree murder, and operating as a major trafficker.

A conviction for First Degree criminal solicitation is a class C felony in New York State. It carries a sentence of probation or from one year up to 25 years in prison.

Criminal Solicitation: Soliciting or Providing Support for An Act of Terrorism

Soliciting support for an act of terrorism defined

Article 490 of the Penal Law defines the two degrees of ‘soliciting or providing support for an act of terrorism.’

The basic offence is similar for each degree: the offence happens when a person solicits or provides support or resources to be used in the preparation, performance, concealment or assistance to escape from an act of terrorism. These are very serious offences and carry high penalties.

What is ‘an act of terrorism’?

In New York State, an act of terrorism is defined as a Class A felony or violent felony offence, or a specified offence for which a person may be convicted under Article 20 of the state’s Criminal Procedure Law.

The Elements of Soliciting or Providing Support for an Act of Terrorism

There are two parts to the basic offence. To commit the offence of soliciting or providing support for an act of terrorism:

The person must be found to have raised, solicited, collected or provided material support or resources to
Plan, prepare, carry out or aid an act of terrorism, or
Conceal or escape from an act of terrorism

And

The person intends that the material support or resources be used to plan, prepare, carry out, aid, conceal, or escape from an act of terrorism.

Again, the person solicited does not have to take any action actually to carry out the act of terrorism. All the person must do is raise or solicit funds to support an act of terrorism, to hide an act of terrorism, or to assist those who have participated in the act of terrorism to escape the authorities.

Suppose John actively supports a group that has been declared a terrorist organization by the United States government. John knows that members of the organization are planning an attack on the New York subway system.

John solicits friends and acquaintances to give him money that he intends to donate to the organization, knowing the money will be used to pay for materials to be used in the attack.

This is an example of soliciting support for an act of terrorism. James knows that members of a terrorist organization are planning a terrorist act and solicits money to be used to prepare for and carry out the act. John can be charged with soliciting or providing support for an act of terrorism.

The prosecution’s burden of proof in soliciting or providing support for an act of terrorism cases

If you are charged with the offence of soliciting or providing support for an act of terrorism, the prosecution must prove two things before you can be convicted:

That you raised, solicited, collected or provided material support for the planning, preparation, carrying out or aiding the act of terrorism, concealing it, or the escape of persons who participated in the act of terrorism; and
That you did so intending that the material resources or support be used in the planning, commission, concealment, or escape from the act of terrorism.

The prosecution’s burden of proof is soliciting or providing support for an act of terrorism where the total value of the support is greater than $1,000

If the support you raised, solicited, or provided for an act of terrorism is an amount greater than $1000, the prosecution must prove that:

That you raised, solicited, collected or provided material support for the planning, preparation, carrying out or aiding the act of terrorism, concealing it, or the escape of persons who participated in the act of terrorism;
That the total amount you raised had a total value greater than $1000; and
That you did so intending that the material resources or support be used in the planning, commission, concealment, or escape from the act of terrorism.

Soliciting or Providing Support for An Act of Terrorism in The Second Degree: It’s a D violent felony

Under Penal Law§490.10, the Second Degree ‘soliciting or providing support for an act of terrorism’ offence is a D violent felony. These include second-degree assault, second-degree rape, and first-degree sexual abuse.

It is punishable by between two years’ and seven years’ imprisonment.

Soliciting or Providing Support for An Act of Terrorism in The First Degree: It’s a C violent felony

Penal Law§490.15 establishes the First Degree ‘soliciting or providing support for an act of terrorism’ offence as a C violent felony.

These include second-degree assault, second-degree rape, and first-degree sexual abuse. It is punishable by between three and one-half years’ and fifteen years’ imprisonment.

Important Cases That Define Criminal Solicitation

People v. Lubow

The crime of solicitation is complete when a person makes communication with another person with the intent that the other person engage in unlawful conduct;
It is not necessary for the People to prove that any overt steps were taken to carry out the unlawful conduct; and
The Legislature did not impose a corroboration requirement for the offence of criminal solicitation.

Who investigates criminal solicitation in New York State?

The New York State Attorney General investigates criminal solicitation, as do the New York State Police.

What additional consequences do you face for a criminal solicitation conviction?

There are often other consequences beyond fines and/or imprisonment for people convicted of criminal solicitation. If you are convicted of criminal solicitation, you often face the same consequences as if you were convicted of the actual offence itself.

For example, if you were convicted of soliciting another person to commit a sex crime, you could be required to be registered as a sex offender. If you were convicted of soliciting another person to distribute drugs, your driver’s license could be suspended, just as the person who actually distributed the drugs lost their license.

Possible defenses to a criminal solicitation charge

Criminal solicitation depends on there being a solicitation with intent between the person being charged and the person they tried to persuade to commit the offence. An effective defense is to raise doubts that you ever solicited the other person. This could be done by:

Showing that you did not actually solicit the person;
Showing that you spoke to the other person about committing an offence, but did not intend that the other person commit the offence; and
In some cases, it is possible to recant the solicitation by ignore your solicitation and asking the person not to commit the offence. Depending on the offence you solicited, you might also have to advise the police to prevent the offence from taking place.

Why you need a lawyer if you’re facing criminal solicitation charges

If you are charged with criminal solicitation, or even learn you are being investigated for possible criminal solicitation, obtain legal assistance immediately. Criminal solicitation charges are very serious. What’s worse, conspiracy is an offence for which you can be convicted without any offence having been committed at all.

Depending upon the degree of criminal solicitation with which you are charged, you could face several years of imprisonment.The offence of criminal solicitation is complex. It requires lawyers knowledgeable about:

The degrees of criminal solicitation
Determining what offence, you are being charged with soliciting;
How criminal solicitation is investigated; and
How investigators may question you during an interrogation.

Lawyers can assist you in making statements during the investigation. You will need legal counsel that has defended others charged with criminal solicitation to defend you. Your legal counsel will be able to

Analyze your specific situation to determine if you have been properly charged with the offence or the degree of criminal solicitation;
Develop the best possible defense to the charges, based on their experience in other cases and their understanding of your situation; and

Advocate forcefully on your behalf in all aspects of your defense.