People v. Leisner

138 A.D.2d 273, 526 N.Y.S.2d 85, 1988 N.Y. App. Div. LEXIS 3066

Opinions

Judgments, Supreme Court, New York County (James J. Leff, J.), rendered October 20, 1986, convicting defendants of conspiracy in the fourth degree and sentencing them to indeterminate terms of imprisonment of from 1 to 4 years, affirmed. The case is remitted to the Supreme Court, New York County, for further proceedings pursuant to CPL 460.50 (5).

The proof adequately demonstrated that from December 1978 to July 1980 defendants Leisner and Marx hired Morris Lender and Charles Lambert to move a gang of drug addicts, pimps, prostitutes, derelicts and thieves into apartment buildings owned by them in order to coerce the tenants into abandoning their apartments. If the tenants were not immediately frightened into moving by the mere presence of such miscreants, who openly used and sold drugs in the building and ran "shooting galleries” and prostitution rings, the gang was ordered to break into their apartments to steal or vandalize property. By July 1980, more than 100 tenants, the vast majority, had been driven from their homes. Although acquitted of attempted grand larceny (one count) and attempted coercion (one count), involving the same tenant as victim, both defendants were convicted of conspiracy to commit grand larceny in the first degree by extortion. The jury was unable to reach a verdict on the remaining substantive counts.

Footnotes

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Of the many issues raised only two warrant discussion—the court’s failure to charge the jury that the People must establish the commission of an overt act within five years of the indictment in order for it to find defendants guilty of conspiracy, and the refusal to charge on the possibility of multiple conspiracies. Defendants had submitted a written request that in order to convict, the jury "must find that the single overall conspiracy alleged * * * existed, and that each defendant joined that conspiracy.”

We discuss the latter issue first. As defendants note, courts have held that if a reasonable view of the evidence exists to support a finding of multiple conspiracies, whether single or multiple conspiracies have been proven is generally a question of fact. (See, United States v Alessi, 638 F2d 466; United States v Murray, 618 F2d 892, 902.) Absent an evidentiary basis for a finding of multiple conspiracies, however, a court is not required to give the multiple conspiracy charge. (See, United States v Martino, 664 F2d 860, 875, cert denied sub nom. Miller v United States, 458 US 1110; United States v Ocampo, 650 F2d 421, 429.)

Here, the evidence established defendants’ joint economic involvement throughout the conspiracy, and a careful coordination of all their activities to advance their joint goals. A finding of multiple conspiracies would thus have required an irrational segregation of the evidence. In any event, even if the evidence supported a finding of multiple conspiracies, the court’s refusal to give the requested charge does not constitute reversible error. Only in instances where the variance between the pleading of a single conspiracy and the hypothetically assumed proof of multiple conspiracies "substantially prejudiced” the defendant’s rights is reversal warranted. (See, Berger v United States, 295 US 78, 81; United States v Miley, 513 F2d 1191, cert denied sub nom. Vavarigos v United States, 423 US 842.)

Traditional harmless error analysis requires an examination of the conspiracy in which a defendant was proven to have been clearly involved, so as to determine whether the jury’s consideration of that crime was tainted by a prejudicial spillover of inflammatory evidence related to separate conspiracies with which he was not involved. Inevitably, the likelihood of prejudice becomes greater as the number of defendants and discrete conspiracies, many of which are proven by evidence of a substantially different strength or quality, increases. (See, United States v Bertolotti, 529 F2d 149, 156-157; United States v Miley, supra, 513 F2d, at 1209.)

Under these standards, defendants here were not substantially prejudiced, even assuming that multiple conspiracies had been proven, although only one was alleged. As even defendants concede, they could have been tried jointly on a charge of conspiracy to vacate their jointly owned buildings. Since these buildings constituted 9 of the 16 buildings involved in the underlying charges, most of the evidence introduced at trial related to the conspiracy in which they were both involved. (Contrast, United States v Cambindo Valencia, 609 F2d 603, 626-627, cert denied sub nom. Prado v United States, 446 US 940, where the defendant in a multiple conspiracy case was overwhelmed with a mass of inflammatory testimony relating only to other defendants involved in other conspiracies.) Moreover, the evidence of the Lender-Lambert gang’s criminal activities in defendants’ jointly owned buildings was substantially identical to their criminal activities in defendants’ separately owned buildings. (See, United States v Miley, supra, 513 F2d, at 1209; contrast, United States v Bertolotti, supra, 529 F2d, at 158.)

In addition, much of the evidence of defendants’ activities in the separately owned buildings would also have been admissible in a trial involving only the joint buildings. At such a trial, for example, a critical issue would have been, as it was here, whether defendants knew that Lender and Lambert were vacating the jointly owned buildings through criminally coercive methods. Under People v Molineux (168 NY 264), defendants’ knowledge that, during the same time period, criminal activities occurred in the separately owned buildings would have been admissible to prove their knowledge that the same methods were being used in the jointly owned buildings. Although we believe that the evidence was clearly sufficient to establish that defendants were involved in the single conspiracy alleged in the indictment, even if, arguendo, we accept the existence of multiple conspiracies, this case involved only two defendants, both of whom joined 1 of, at most, 3 separate conspiracies, all of which were proven by substantially similar evidence.

With respect to the other issue, defendants submitted a written request that the court charge that in order to find them guilty of conspiracy the People must establish the commission of an overt act after December 14, 1979. Such proof would establish that the prosecution had been timely under the applicable Statute of Limitations, that is, within five years after the completion of the conspiracy. In that same written submission, defendants also requested a similar Statute of Limitations charge for each substantive count, so as to require a finding that these crimes had been committed after December 14, 1979.

Although the trial court correctly charged that the People must prove, as an element of the crime, the commission of one overt act in furtherance of the conspiracy, it did not mention the Statute of Limitations in this context. Defendants argue that such failure constitutes error mandating reversal. Upon review of the record, we find that defendants effectively withdrew their request and thus waived any objection to the court’s failure so to charge.

After reviewing defendants’ written requests, the Trial Judge endorsed on most of them either "covered by charge” or "refused”, and made his annotated copy a court exhibit. He did not, however, so mark defendants’ Statute of Limitations request; instead, he underlined the relevant date constituting the limitation deadline. Thus, at the outset, the Trial Judge did not reject defendants’ request for the limitation instruction, but was apparently relying on the oral charge conference to clarify whether defendants actually wanted their request to cover each count.

During the oral charge conferences before and after summations, neither defense counsel ever mentioned his overt act Statute of Limitations charge. Nor did they request a Statute of Limitations charge for each substantive count. Rather, when the issue arose, counsel focused only on the two substantive counts involving Ion Burta as the victim, arguing that these counts must be dismissed since the crimes occurred prior to December 14, 1979. Defendants’ concentration on the Burta counts was understandable, since the West 53rd Street building in which Burta lived was sold on December 19th, only five days after the Statute of Limitations deadline. Although Burta lived in the building for two more months, a sharp factual dispute existed as to whether Burta was subjected to any coercion after he signed a surrender and release on December 6, 1979. After a lengthy argument, the Trial Judge determined that with respect to the Burta counts a factual issue was raised as to the Statute of Limitations and he charged the jury accordingly.

Much later in the charge conference the following colloquy occurred between Marx’s counsel and the Judge:

"[counsel]: * * * Judge I have an additional charge today that I made about 1:30 this morning and what it simply is, because I take it you’re going to charge on the statute of limitations as a factual matter, aren’t you?

"the court: With respect—it applies apparently, only to the testimony on Burta.

"[counsel]: Well, there is another aspect, judge. I think if they were to find that there is not an overall conspiracy * * * 23rd Street and 30th Street would both be barred, time barred. That’s the only thing that brings it within the time * * *

"If the jury were to find there was not a single conspiracy * * * point out to them, 23rd Street becomes an island of itself and so does 30th Street. They are barred from the statute of limitations.”

In this colloquy Marx’s counsel did not request that the jury be given a Statute of Limitations instruction on the single conspiracy charged in the indictment, as defendants now argue. Instead, he continued to press his multiple conspiracy argument in another form. Moreover, by claiming that only the allegedly separate conspiracies involving 23rd Street and 30th Street were time barred, he, in effect, conceded that the Statute of Limitations was not a viable defense to the indictment’s charge of a single conspiracy, which, as the People’s evidence showed, had extended past the limitation deadline. This is further supported by the ensuing colloquy:

"the court: If you have a continuing conspiracy then those were overt acts that were committed and, the conspiracy continues so that the overt act isn’t time barred from being considered as part of the conspiracy.

"[counsel]: I agree, your Honor, on the overall conspiracy theory.”

Apparently, after the lengthy charge conference, the Trial Judge thought defendants had narrowed the scope of their written submission and had requested a Statute of Limitations charge only on the Burta counts, which he had agreed to give. Defense counsel never alerted the Judge that as to the conspiracy count they still sought the Statute of Limitations charge which had been included in their written request. Nor did they mention anything about the Judge’s omission of this instruction after he charged the jury. Rather, the postcharge colloquy makes it even clearer that they had withdrawn their request for such an instruction. Since the Judge had not marked "refused” on defendants’ requests, had defense coun sel at this point drawn his attention to it, the Judge presumably would have given the instruction. When they asked to review their written requests, the Judge was at first reluctant, since he had already marked on their written submission the requests, he had refused, which, as already noted, did not include the overt act Statute of Limitations instruction. It was in this context that the Judge stated that "to the extent” he did not follow defendants’ written requests "they are a part of your exceptions”. Defense counsel nevertheless insisted on reviewing their exceptions seriatim. Although they then presented 21 exceptions to the charge as given, the discussion of which consumes 20 pages of the record, they never again mentioned the Statute of Limitations request. Thus, the Judge could reasonably have concluded that defendants had limited their request to the two Burta counts. By never informing the Judge during the trial that they still desired the conspiracy limitation instruction, they waived any objection to the Judge’s failure to give this instruction. (See, People v Lipton, 54 NY2d 340, 351.)

Indeed, People v Le Mieux (51 NY2d 981), which also dealt with the submission of written requests, provides an illustrative contrast. In Le Mieux, the court noted that defense counsel’s failure at a very brief postcharge colloquy to mention a particular written request for the instruction at issue "without more * * * hardly demonstrated a clear intent to waive a position already preserved with respect to a request on which the verdict could very well have turned.” (Supra, at 983.) Here, the record contains more than defendants’ failure to raise the conspiracy limitation request specifically at the postcharge colloquy as proof of abandonment. They effectively expressed satisfaction with the Judge’s interpretation of their request after extensive colloquy and his ultimate decision to charge the Statute of Limitations only on the Burta counts. Their failure to request the conspiracy limitation instruction at that juncture must be interpreted as a conscious abandonment, rather than oversight.

Moreover, neither the majority nor the dissenters in Le Mieux (supra, at 983) could discern any rational strategic reason in a perjury case for a lawyer to abandon a corroboration instruction "on which the verdict could very well have turned.” Here, defendants’ withdrawal of their request is entirely understandable, since numerous overt acts within the limitations period were proven by documents and testimony which went unchallenged. Defendants’ trial strategy was based, not on disputing the overwhelming array of evidence that Lender and Lambert had terrorized their tenants, but on vigorously disputing that either defendant was aware of their agents’ criminal activity. Such a strategy dictated that the jury’s attention not be drawn to the long litany of overt acts which might divert the jurors from a consideration of defendants’ claim of lack of scienter.

Indeed, Marx’s counsel was upset at the court’s reading of the overt acts to the jury during its instruction on the conspiracy count, describing it as "almost like another summation for the People”. Had a limitation instruction on the conspiracy count been given, requiring the jurors to focus on the date of each specific act, they could have requested a reading of the testimony as to the list of overt acts which defense counsel felt was too prejudicial to present even by a reading of the indictment. Furthermore, their abandonment of the conspiracy limitation charge could have no impact on the result. Proof of a timely overt act is required in a conspiracy prosecution "simply to manifest” that the conspiracy has advanced beyond "a project still resting solely in the minds of the conspirators” and is still " 'at work’ ” within the applicable limitation period. (Yates v United States, 354 US 298, 334.) After weighing the extreme unlikelihood of an acquittal of the conspiracy count based on a Statute of Limitations defense against the risk of what they believed would be substantial prejudice from the jury’s focus on the overt acts, defendants apparently decided to forego their Statute of Limitations request on the conspiracy count. Having pursued such a strategy, defendants cannot now complain that they were prejudiced by the trial court’s failure to give the instruction.

Since the record is replete with evidence of numerous overt acts committed after December 14, 1979, there is no need for this court to exercise its interest of justice jurisdiction to reach the issue of the failure to charge the Statute of Limitations in connection with the conspiracy charge. The People, for instance, proved by documentary evidence that defendants purchased the jointly owned buildings at Ninth Avenue and 48th Street on January 4, 1980, which was within the limitation period. Furthermore, Marx specifically admitted in his testimony that he and Leisner were the principals of Hodraw Realty and therefore the owners of said premises. Thus, proof of even one overt act committed in vacating these buildings would clearly meet the People’s burden in this regard.

In fact, though, the People proved numerous overt acts. For instance, on the same date that they purchased the buildings, defendants registered Morris Lender as the managing agent. Moreover, in his testimony Marx conceded that Lender had been installed in these buildings and was managing them for defendants. Defendants’ registration of Lender as their managing agent was also an act "in furtherance of the conspiracy”, since they thus gave him access to the buildings and clothed him with authority as their legal representative to pursue his tactics. By making Lender the person visibly responsible for conditions at the buildings, moreover, defendants hoped to shield themselves from responsibility for his actions. The commission of this overt act within the limitation period was not disputed by defendants.

Additionally, after defendants purchased Ninth Avenue/ 48th Street and installed Lender as their agent, Lambert moved his gang of thugs to the building. The tenants and a local tenant organizer soon noticed the arrival of new drug addict and prostitute tenants shortly afterwards. The usual pattern of harassment then commenced. The tenants confronted gang members loitering in the hallways and congregating on the roof, and found empty glassine envelopes, used hypodermic needles and garbage scattered throughout the building. Eventually the front door lock was broken and the door glass shattered, with the inevitable ensuing pattern of robberies and break-ins. Consistent with their strategy, defendants did not dispute that thugs were installed in these buildings, but, instead, consistently concentrated their efforts on proving their lack of knowledge. Thus, substantially undisputed evidence proved that in furtherance of the conspiracy overt acts were committed within the limitation period.

Thus, the convictions should be affirmed. Concur—Sullivan, J. P., Ross and Kassal, JJ.

The jury’s inability to reach a unanimous verdict on the substantive counts was almost certainly based on the different standards for finding accomplice, as opposed to conspiratorial, liability under People v McGee (49 NY2d 48), rather than on any failure of proof regarding the coercion of these tenants.