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Conspiracy Indictment Which Does Not Charge an Overt Act is Jurisdictionally Defective

The Third Department reversed defendant’s conviction and dismissed a conspiracy indictment as jurisdictionally defective because the indictment failed to charge the commission of an overt act in furtherance of the conspiracy:

In early October 2010, defendant — then serving a sentence in the Otsego County jail on a contempt conviction stemming from various violations of an order of protection in favor of his ex-girlfriend, Jeanette Hamm — allegedly told a fellow prisoner that he desired to have Hamm murdered. Defendant’s block-mate discussed the matter with prison officials, and the Otsego County Sheriff’s Department began an investigation. As part of the investigation, an undercover police officer posing as a potential assassin talked with defendant on the phone and met with him at the jail. Defendant was arrested shortly thereafter and charged by indictment with the crime of conspiracy in the second degree. * * *

As the People concede, the indictment is jurisdictionally defective and must be dismissed inasmuch as it failed to charge the commission of an overt act in furtherance of the conspiracy as required by Penal Law § 105.20 … . People v Grays, 2014 NY Slip Op 07017, 3rd Dept 10-16-14

 

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