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FAILURE TO ALLEGE AN OVERT ACT IN THE CONSPIRACY COUNT REQUIRED REVERSAL AND DISMISSAL OF THE COUNT AS JURISDICTIONALLY DEFECTIVE (THIRD DEPT).

The Third Department reversed defendant’s conviction for conspiracy because the indictment did not allege an overt act:

We find merit in defendant’s pro se contention that count 4 of the indictment, charging him with conspiracy in the second degree, must be dismissed. Pursuant to Penal Law § 105.20, “[a] person shall not be convicted of conspiracy unless an overt act is alleged and proved to have been committed by one of the conspirators in furtherance of the conspiracy” … . Here, count 4 neither alleges that an overt act was committed nor includes factual allegations describing such an act. There is no assertion that defendant or the codefendants took any action beyond agreeing to “engage in or cause the performance of [conduct constituting a class A felony].” Moreover, the indictment’s reference to Penal Law § 150.15 does not incorporate an overt act allegation by reference, as the requirement is not found in that provision … . Accordingly, defendant’s conviction of conspiracy in the second degree under count 4 of the indictment must be reversed and the sentence imposed thereon vacated, and said count must be dismissed as jurisdictionally defective … . People v Pichardo, 2018 NY Slip Op 02365, Third Dept 4-5-18

​CRIMINAL LAW (CONSPIRACY, FAILURE TO ALLEGE AN OVERT ACT IN THE CONSPIRACY COUNT REQUIRED REVERSAL AND DISMISSAL OF THE COUNT AS JURISDICTIONALLY DEFECTIVE (THIRD DEPT))/CONSPIRACY (CRIMINAL LAW, OVERT ACT, FAILURE TO ALLEGE AN OVERT ACT IN THE CONSPIRACY COUNT REQUIRED REVERSAL AND DISMISSAL OF THE COUNT AS JURISDICTIONALLY DEFECTIVE (THIRD DEPT))/OVERT ACT (CRIMINAL LAW, CONSPIRACY, FAILURE TO ALLEGE AN OVERT ACT IN THE CONSPIRACY COUNT REQUIRED REVERSAL AND DISMISSAL OF THE COUNT AS JURISDICTIONALLY DEFECTIVE (THIRD DEPT))/INDICTMENTS (JURISDICTION DEFECT, FAILURE TO ALLEGE AN OVERT ACT IN THE CONSPIRACY COUNT REQUIRED REVERSAL AND DISMISSAL OF THE COUNT AS JURISDICTIONALLY DEFECTIVE (THIRD DEPT))

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