People v. Schwimmer, 479 N.E.2d 223 (N.Y. 1985)

A defendant can be convicted of conspiracy if the prosecution proves the defendant entered into a criminal agreement with at least one other person, even if the indictment alleges conspiracy with multiple individuals and the evidence does not support the agreement amongst all those named.

Summary

Schwimmer was convicted of conspiracy to possess stolen bearer bonds. He appealed, arguing a variance between the indictment (conspiracy with Fellouris, Boggs, and Jones) and the trial evidence (conspiracy with Boggs and Jones against Fellouris). The New York Court of Appeals affirmed the conviction, holding that proof of an agreement with at least one co-conspirator is sufficient for a conspiracy conviction, even if the indictment names others. The court also addressed the alibi defense and jury instructions regarding co-conspirator liability, finding no reversible error.

Facts

The defendant was indicted for conspiring with Fellouris, Boggs, and Jones to possess bearer bonds stolen from the Vakils’ brokerage accounts. The prosecution alleged the defendant conspired to knowingly possess stolen property with the intent to benefit persons other than the rightful owners. At trial, the evidence indicated the defendant conspired with Boggs and Jones to keep the funds from Fellouris, rather than conspiring with Fellouris.

Procedural History

The defendant was convicted at trial. He appealed, arguing a variance between the indictment and the evidence presented. The Appellate Division affirmed. The New York Court of Appeals granted leave to appeal and affirmed the Appellate Division’s order.

Issue(s)

1. Whether a conviction for conspiracy can stand when the indictment alleges conspiracy with multiple individuals, but the evidence only proves a conspiracy with a subset of those individuals.
2. Whether the trial court erred in refusing to provide an alibi instruction for one of the overt acts listed in the indictment.
3. Whether the trial court adequately instructed the jury regarding the rule from People v. McGee, which states a defendant cannot be convicted of substantive crimes of co-conspirators solely based on membership in the conspiracy.

Holding

1. Yes, because conviction for conspiracy requires only proof of a criminal agreement with at least one other person; the indictment’s allegation of conspiracy with multiple individuals does not obligate the People to prove an agreement amongst all those individuals.
2. No, because there were numerous other acts tending to show that the defendant joined the conspiracy.
3. Yes, because the court explained that the conspiracy and criminal possession offenses were distinct, and the defendant could only be convicted of criminal possession if all elements of that offense were proven beyond a reasonable doubt.

Court’s Reasoning

The Court of Appeals reasoned that a conspiracy conviction only requires proof that the defendant entered into a criminal agreement with at least one other person. The indictment served its purpose by providing notice to the defendant that he would be tried for agreeing to participate in a plan to criminally possess stolen bonds. Citing People v. Charles, the court emphasized that alleging conspiracy with more than one person does not require the prosecution to prove an agreement among all named conspirators.

Regarding the alibi defense, the court found no error because there was other evidence linking the defendant to the conspiracy. Quoting People v. Watts, the court implied that an alibi instruction is not required when the prosecution presents other evidence of the defendant’s involvement.

The court found that although the trial court did not provide a verbatim restatement of the People v. McGee rule, the court sufficiently conveyed that the conspiracy and criminal possession offenses were distinct, requiring separate proof for each. There was no suggestion that the rejected Pinkerton rule should be followed. The court stated, “Notably absent from the charge was any suggestion that the ‘Pinkerton’ rule (see, Pinkerton v United States, 328 US 640) rejected in McGee should be followed.”