New York Criminal Lawyers Explain the Law of Conspiracy

In addition to prohibiting attempts to commit crimes (for example, where a person walks into a bank armed with a gun intending on holding up a teller, but is thwarted by a security guard before he can obtain any property) the law also punishes agreements to commit crimes. Thus, where two or more people have the specific intent that a crime be performed, and agree to engage in or cause a crime to be performed, those people can be charged in New York with any one of six degrees of the crime of Conspiracy, as long as at least one of the members of the agreement has committed an “overt act” in furtherance of the agreed upon crime. New York Penal Law Article 105 breaks conspiracy down into varying degrees based on the classification and degree of the agreed upon or “object” crime, and the age of one or more of the participants.

The core of conspiracy is the illicit agreement. There is no requirement that a prosecutor prove the exact language of an agreement to commit a crime, and obviously there is no requirement that the agreement be written or recorded anywhere. In fact, prosecutors have a lot of leeway in proving this element as the existence of an agreement can be inferred from other facts. The charge of conspiracy is a powerful tool employed by prosecutors because it is relatively easy for them to prove; it often only takes the word of one informant to take down ten and sometimes even twenty individuals who are somehow associated with each other in one fell swoop. The charge allows law enforcement to cast a wide net, which unfortunately often means that the little fish find themselves lumped together on the same page of an indictment with the big fish, since the law allows people who have committed carrying degrees of conduct with respect to the “agreement” to be treated the same for charging purposes. Even worse, sometimes people who have committed nothing illegal find themselves swept up in the net as well.

To better understand the concept of conspiracy, consider the following scenario: Roger and Cindy decide that they are going to rob a bank next week. They agree that Cindy will drive Roger to the bank where Roger will slip a note to a teller which says “hand over $500. I’ve got a gun in my pocket don’t make me use it.” Roger knows there are probably going to be cameras inside of the bank so he decides to buy a ski mask to cover up his face during the robbery. Roger goes to the shopping mall by himself and purchases a black ski mask. At this point, both Roger and Cindy are on the hook for Conspiracy in the Fifth degree without even having stepped foot in the bank because they have agreed to commit a felony (Robbery in the Third Degree in this case) and at least one of the parties to the agreement has committed an overt act in furtherance of the conspiracy (Roger bought the mask).

Two interesting points should be noted here. The first is that Cindy may be found guilty of conspiracy even though Roger is the one who committed the overt act because the law only requires that an overt act be committed by one of the members of the conspiracy [Penal Law § 105.20]. The second point is that the act of buying the mask was completely legal; of course the overt act can also be a criminal, but there is no requirement that it be.

Prosecutors have traditionally employed the charge of conspiracy to tackle large groups of people they believe to be involved in the drug trade.This involves serious consequences for the targets of those investigations because the sale of any amount of a controlled substance is a class B felony (see P.L. § 220.39). If two or people enter into an agreement to sell drugs together, and as long as the requisite overt act is committed, those individuals would be on the hook for Conspiracy in the Fourth Degree (the object crime being a “B” Felony). If two or more people agreed to sell over half an ounce of cocaine (an A-1 felony in violation of P.L. § 220.43), they would all be subject to prosecution for Conspiracy in the Second degree, which is a “B” felony in itself, carrying a maximum range of 8 and 1/3 to 25 years for first offenders. If one of the members of the conspiracy were over 18 years old and another member younger than 16 years of age, the applicable charge would be Conspiracy in the First Degree, an A-1 felony which carries a minimum of 15 to life.

When one begins to understand the intricacies of the charge of conspiracy law, including the minimal proof requirements to sustain such serious charges, it becomes apparent why this particular crime is such a powerful tool in the arsenal of the prosecutor. In cases where law enforcement agencies target large groups of people alleged to be involved in selling drugs, the charges will be extremely serious, especially if just one of the alleged members is under sixteen. Remember, if ten people are charged with being members of a conspiracy, prosecutors need only plead and prove one overt act, and everyone is on the hook. Prosecutors are not only using the charge of conspiracy to tackle large scale drug organizations – they are using the charge as a tool against New York’s inner city street drug dealers, and anyone associated with them. It is not uncommon for a group of teenagers, some of whom may be engaged in drug dealing, to be indicted and charged with very serious felonies. While some of the targets may have actually handled or physically sold drugs, conspiracy provides a wide enough net so that anyone deemed to have “agreed” to sell drugs will be charged and find themselves facing large amounts of jail-time.

What follows is a breakdown of New York’s conspiracy charges:

§ 105.00 Conspiracy in the sixth degree.

A person is guilty of conspiracy in the sixth degree when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct. Conspiracy in the sixth degree is a class B misdemeanor.

§ 105.05 Conspiracy in the fifth degree.

A person is guilty of conspiracy in the fifth degree when, with intent that conduct constituting:

1. a felony be performed, he agrees with one or more persons to engage in or cause the performance of such conduct; or

2. a crime be performed, he, being over eighteen years of age, agrees with one or more persons under sixteen years of age to engage in or cause the performance of such conduct. Conspiracy in the fifth degree is a class A misdemeanor.

§ 105.10 Conspiracy in the fourth degree.

A person is guilty of conspiracy in the fourth degree when, with intent that conduct constituting:

1. a class B or class C felony be performed, he or she agrees with one or more persons to engage in or cause the performance of such conduct; or

2. a felony be performed, he or she, being over eighteen years of age, agrees with one or more persons under sixteen years of age to engage in or cause the performance of such conduct; or

3. the felony of money laundering in the third degree as defined in section 470.10 of this chapter, be performed, he or she agrees with one or more persons to engage in or cause the performance of such conduct. Conspiracy in the fourth degree is a class E felony.

§ 105.13 Conspiracy in the third degree.

A person is guilty of conspiracy in the third degree when, with intent that conduct constituting a class B or a class C felony be performed, he, being over eighteen years of age, agrees with one or more persons under sixteen years of age to engage in or cause the performance of such conduct. Conspiracy in the third degree is a class D felony.

§ 105.15 Conspiracy in the second degree.

A person is guilty of conspiracy in the second degree when, with intent that conduct constituting a class A felony be performed, he agrees with one or more persons to engage in or cause the performance of such conduct. Conspiracy in the second degree is a class B felony.

§ 105.17 Conspiracy in the first degree.

A person is guilty of conspiracy in the first degree when, with intent that conduct constituting a class A felony be performed, he, being over eighteen years of age, agrees with one or more persons under sixteen years of age to engage in or cause the performance of such conduct. Conspiracy in the first degree is a class A-I felony.

If you or someone close to you has been arrested or targeted in a conspiracy investigation, contact an experienced lawyer at The Law Office of Matthew Galluzzo. Several of our attorneys are former prosecutors who have handled complex conspiracy cases and are best equipped to fight these serious charges.