Feigned Agreement

Joseph Coll is a New York City police officer and Ernest Colellie is a confidential police officer. Neither Coll nor Colelli intended to commit the underlying material crimes. Instead, they simply simulated an agreement for repressive purposes. Any doubt that New York has taken a unilateral approach to conspiracy is dispelled by section 105.30 of the Criminal Law, which states: “There is no defense against the charge of conspiracy based on non-criminal responsibility or other legal incapacity or release, or because of ignorance of the criminal character of the agreement or the conduct of the object or the criminal object or purpose of the accused or other factors, those who could not be guilty of conspiracy or object crime, of one or more of the co-conspirators of the accused. In the Fourth Interim Report of the Temporary Commission on the Revision of the Penal Code and Criminal Code of the State of New York (February 1, 1965), the Board of Revisors made the following comment on section 105.30 Penal of the Penal Law (N.Y. Legis Doc, 1965, No. 25, p. 25-26): “A new section `no defence` has been added (No. 105.30) which provides that the absence of criminal responsibility or guilt of a person or person with whom an accused is `in agreement` or `conspired` does not discharge the accused of responsibility for conspiracy” (emphasis added only). Thus, no analysis of the crime of conspiracy, as defined in the current New York Statute, can logically rationalize the fact that a false agreement by one of the alleged conspirators fulfills the essential element of a corrupt agreement between two or more persons. Conspiracy is naturally a common or collective offense that requires a concert of free will (Moore v. State, 290 so.2d 603 [Miss]).

After the elimination of an officer acting in the performance of his duty or an informant who conspired for informational purposes only, at least two persons must be involved in a conspiracy (Moore v. State, a.a.O., at p. 605). It is well known that a person acting as a government agent and who, in the secret role of an infiltrator or informant, enters into an alleged conspiracy cannot be a co-conspirator (see United States v. Chase, 372 F.2d 453, certert 387 U.P. 907; Sears v. United States, 343 F.2d 139; Persons v. Teeter, 86 Misc.2d 532, 535, affd 62 A.D.2d 1158). A person who claims to join a conspiracy to trap criminals is not a co-conspirator (1 Wharton Criminal Law and Procedure, § 83).

The appeal concerns the question of whether the accused can be convicted of conspiracy if all the other members of the alleged conspiracy simulated an agreement and never intended to carry out the object crime. Criminal Term concluded that if an agreement is simulated and without intent to do so, there is no concerted activity on which to base a criminal conspiracy charge,” accordingly rejecting the prosecution`s conspiratorial counts. We interpret section 105 of the Criminal Law in such a way that it permits the conspiracy prosecution of a particular accused, regardless of the guilt of the other conspirators. It is therefore appropriate to set aside the part of the order that rejected the accounts of the conspiracy. The language of the New York Statute clearly states that New York has prohibited any defense based on the legal incapacity of the co-conspirators of a particular accused. Thus, the law explicitly refers to factors such as those of the co-conspirator: criminal irresponsibility; other disabilities or exemptions; and ignorance of the criminal nature of the agreement, the conduct of object or the criminal object of the accused, since it is not a defence. However, the law goes further and contains the collective language that it is not a defense, that there are “other factors that prevent the psychic state of the [co-conspirator] from committing the conspiracy or object crime” (Criminal Law, § 105.30. . . .

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