New York Court of Appeals (Dec. 2020)

This was originally posted on the SGR Blog.

“Murder (He) Wrote”

Did that Suffice for a Conviction?

An incarcerated felon asked an inmate in an adjacent cell (whose was days away from release and whose girlfriend faced eviction from her apartment) to kill his wife and mother-in-law and kidnap his children (after he left prison)– in return for which he would be given a house. Detailed written and verbal  information and instructions followed; but the neighboring cellmate informed the authorities and the crime never took place.  Was the felon guilty of attempted murder?

Feinman, J. (for the Court)

A person is guilty of an attempt to commit a crime if the person’s conduct comes “dangerously close” to committing the intended crime. In a recent case, the Court of Appeals examined whether the evidence in a case was in/sufficient to support convictions for attempted murder in the first and second degrees. Did the defendant and his feigned confederate take any actual step toward accomplishing defendant’s plan to kill his wife and mother-in-law beyond mere conversations and planning?. irm.

The relevant events unfolded over several days in May 2016 at the Niagara County Jail, where Benito Lendof-Gonzalez was being held after his arrest at a mobile home in late April for alleged acts of domestic violence against his wife. On May 16, the inmate in the adjoining cell ( MS) used the communal phone in the cell block to call his girlfriend. The couple discussed obtaining bail for MS and mentioned the impending eviction from their apartment. Once MS had returned to his cell, Gonzalez knocked on the wall and passed a note through the cell bars. The note proposed a deal. Gonzalez would give MS a house if MS did “two things” for him: kill his wife and mother-in-law using “shop heroin and new drugs”; and make arrangements for the care of his two children. Gonzalez asked that MS complete his end of the bargain as soon as he was released from jail, and Gonzalez sent a note stating an address and the names of the two targets along with instructions on the time the murders should take place.

Although MS had no intention of following through on Gonzalez’ requests, he played along. MS wrote Gonzalez that he expected to be released in two days, on May 18, and could “do it” on either May 19 or May 20. Gonzalez asked that the job be done “clean[ly] with drugs” and with “[n]o violence,” and requested that MS “[u]se gloves.” In a “detailed plan to follow,” Gonzalez gave instructions on how to carry out the murders: MS was to display drugs on a table to stage a fake overdose, get the victims’ fingerprints on “everything” that MS used to kill them, pick up keys to the house and cars, and take Gonzalez’ two young children with him once he was done. After this initial back-and-forth, MS informed a correction officer that he had “very serious information” to share and turned over the notes to the jail authorities. They told him to continue communicating with Gonzalez and act as though the plan would proceed as discussed.

The next morning, on May 17, Gonzalez provided MS with a hand-drawn map showing the location of a third party’s house, where, according to Gonzalez’ instructions, MS was to take the children after killing Gonzalez’ wife and mother-in-law. Gonzalez also gave MS a letter for the third party. Lastly, Gonzalez instructed MS on where to park when he arrived at the targets’ identified address and gave a vague description of the location of a hidden set of keys—”on the left up to your head”—for MS to use after making sure that the two targets were inside. MS turned these notes over to the authorities and was removed from his cell block until his release from jail the next day.

After being released on bail, MS learned from his girlfriend that Gonzalez had called, using a number provided by MS, and asked that MS visit him in jail. In coordination with the authorities, MS recorded his conversation during his visit with Gonzalez on May 19. Gonzalez discussed the “game plan” for the murders and presented MS with a paper he asked him to read, which MS understood to be a blueprint for a suicide letter to make it look like Gonzalez’ wife committed suicide. According to the plan, MS would kill the wife and mother-in-law that evening and call Gonzalez the next day using prearranged code words to confirm that the murders had been carried out. MS received a call from Gonzalez the following day, on May 20. Speaking in code, MS told Gonzalez that the “cars” ( his wife and mother-in-law) had been “fixed” (killed) and that the “tires” (his children) were with him. Gonzalez said he was “happy now.” On May 24 Gonzalez called MS to again confirm that MS had fixed the “cars” and taken care of the “tires.” After MS expressed concern about when he would be given the house, Gonzalez said he had “another place” where MS could stay for “free.”

At the close of the People’s case at trial, Gonzalez moved to dismiss all counts, arguing that, with respect to the attempted murder counts, there was no evidence of conduct “beyond exchange of letters and some conversation”—that is, nothing beyond mere preparation and planning—and no proof of conduct “carrying the project forward with dangerous proximity . . . to the criminal end to be attained” that would satisfy the requisite “dangerously close” standard for an attempt. The trial court denied the motion, finding that the case “just barely survive[d].”

In defining attempt, the court charged the jury that “[c]onduct which tends to effect the commission of a crime means conduct which comes dangerously close or very near to the completion of the intended crime,” and that a person is guilty of an attempt to commit a particular crime if the person “intends to commit a crime and engages in conduct which carries his or her purpose forward within dangerous proximity to the completion of the intended crime.”

The jury convicted Gonzalez of two counts of attempted murder in the first degree, two counts of attempted murder in the second degree, and one count of criminal solicitation in the second degree. Gonzalez moved to set aside the verdict with respect to the attempted murder convictions on the ground that the evidence showed no “affirmative action beyond the planning,” but the trial court denied the motion.

On  appeal, the Appellate Division vacated the convictions for attempted murder, holding that the evidence at trial was legally insufficient to establish that Gonzalez engaged in conduct that came “dangerously near commission of the completed crime”. Noting that “several contingencies stood between the agreement in the [jail] and the contemplated [crimes],” the court determined that the “evidence establishes only that defendant planned the crimes, discussed them with the inmate in the next cell and with that inmate’s girlfriend, and exchanged notes about them”.

When assessing the legal sufficiency of a jury verdict, The Court of Appeals views the facts in the light most favorable to the People and examines whether “there is a valid line of reasoning and permissible inferences from which a rational jury could have found the elements of the crime proved beyond a reasonable doubt”. The crime of first-degree murder required the People to prove that a defendant caused another person’s death with the intent to do so and “procured commission of the killing pursuant to an agreement with a person other than the intended victim to commit the same for the receipt, or in expectation of the receipt, of anything of pecuniary value from a party to the agreement”. For second-degree murder, the People must prove that a “defendant cause[d] the death of another with the intent to do so”. The inchoate versions of these offenses, as charged here, layer on the definition of criminal attempt set forth in Penal Law which provides that a “person is guilty of an attempt to commit a crime when, with intent to commit a crime, [the person] engages in conduct which tends to effect the commission of such crime.”

The mens rea (mental state) element was not at issue in this case. The People’s evidence overwhelmingly supported a rational jury’s conclusion that Gonzalez specifically intended to kill his wife and mother-in-law, entered into an agreement to procure the services of MS to carry out his plan, and was “happy” when he was told that the murders had been carried out. Instead, the case turned on whether, as a matter of law, the People adduced sufficient evidence of conduct to satisfy the actus reus (conduct) requirement for attempted murder.

The “law does not punish evil thoughts, nor does it generally consider mere preparation sufficiently dangerous to require legal intervention” by imposing attempt liability. Rejecting the more lenient “substantial step” test and adhering to the close-proximity test . the Court of Appeals repeatedly reaffirmed that, to constitute an attempt, the defendant’s conduct must have passed the stage of mere intent or mere preparation to commit a crime. Although the act need not be `the final one towards the completion of the offense, it must be so near to its accomplishment that in all reasonable probability the crime itself would have been committed, but for timely interference. The act or acts must come or advance very near to the accomplishment of the intended crime. Stated differently, the acts must come dangerously near commission of the completed crime.

The boundary where preparation ripens into punishable conduct depends greatly on the facts of the particular case and differs with different crimes. Although the necessity of further steps for completion of the crime and the possibility of abandonment or renunciation are factors to be considered in evaluating whether conduct has come `dangerously close’ to success, those factors are not dispositive. The inquiry focuses on the steps defendant took to accomplish the crime, rather than on the actions or disposition of the particular victim.

Here, the only conduct to be considered was Gonzalez’ own acts because his purported accomplice, who was working with the authorities, did not take any steps toward furthering the planned murders other than listening to the scheme. MS did not, for example, acquire the instrumentality for the crimes (such as drugs or poison), verify the existence of the keys and obtain them from the stated location, or stake out the address supplied by Gonzalez to make sure that the wife and mother-in-law were present at the location specified. Nevertheless, the People, mostly by parsing Gonzalez’ communications with MS, argued that he engaged in sufficient conduct by: (1) promising to provide a house to MS; (2) giving MS the purported address of the targets; (3) instructing MS when to carry out the murders; (4) providing MS with a hand-drawn map of the location of the third party’s house, where MS was to drop off the children after the murders; (5) handing MS a detailed plan of how to carry out the murders; (6) telling MS the location of the keys to the house; (7) calling MS’s girlfriend to arrange for MS to visit the jail; (8) writing a fake suicide note; (9) showing MS the suicide note; and (10) creating a prearranged code to discuss the postmortem over the recorded jail phone.

Not only were these acts “preparatory in a dictionary sense”, they were also limited to the planning stages of committing the offense: they specify the who, what, where, when, and how of the murder plans. Notably absent were any acts that can be deemed to bring the crimes dangerously close to completion. Indeed, numerous contingencies necessary for the crimes’ commission remained unfulfilled.

Although the attempt standard is fact specific, what was missing was any act that, when viewed in the light most favorable to the People, could satisfy the dangerous-proximity test. Gonzalez’ initial promise to give MS a house was just that—a simple promise. It did not advance the scheme’s chance of success. Gonzalez neither made a cash payment nor provided MS with any means to purchase drugs for the murders.

Gonzalez did not provide a murder weapon. And although Gonzalez provided an address, nothing in the trial record established that the wife and mother-in-law, in fact, lived or could be found there. Nor did the proof establish that Gonzalez provided any other information that MS could have used to track down the intended victims. The other acts listed by the People—such as producing a hand-drawn map, a “detailed plan,” and a fake suicide note—consisted of instructions on how to carry out and cover up the murders. They were not actual steps that brought Gonzalez or MS dangerously near or in close proximity to committing that crime.

Despite the absence of actual steps beyond mere planning, the People pointed out that Gonzalez believed MS could and would execute the plan. Arguing that, as long as Gonzalez believed that MS somehow had the ability to procure and use the drugs to fake the suicide of the wife and murder the mother-in-law and that the targets would be present at the stated address, it was no defense that commission of the completed crimes was not possible as the attendant circumstances were not as Gonzalez believed them to be. But the law does not dispense with the requirement that, to be found guilty of attempt, a defendant must “engage[e] in conduct which tends to effect the commission of [the] crime”. The People still had to prove that “the conduct in which [defendant or his agent] engage[d] otherwise constitutes an attempt to commit” murder —in other words, that Gonzalez or his agent engaged in conduct that came dangerously near or in close proximity to committing the murders. The People failed to do so here.

However, the acts required to establish attempt culpability are qualitatively different from the overt acts needed for a conspiracy to commit a murder; they are acts that tend to effect the substantive crime and demonstrate the nearness or immediacy of defendant’s commission of the crime. Cases in which the Court of Appeals ultimately concluded that the defendant’s acts fell short of the “dangerously near” standard for an attempt conviction demonstrated how close to the commission of the substantive crime those precedents require the defendant’s conduct to progress to constitute an attempt. Here, in stark contrast, despite a specific intent to kill, an agreement with a confederate to commit the crimes, and acts corroborating that agreement, there was no evidence of any acts that carried the murder plot forward within dangerous proximity to the criminal end to be attained. While Gonzalez’ creation of a master plan and solicitation of a person who was not going to do anything to carry out that plan was sufficient to establish his criminal culpability for other anticipatory crimes, his inability to perform the requisite acts himself cannot substitute for evidence that the intended crimes were dangerously close to completion. In sum, the evidence was legally insufficient to support defendant’s convictions for attempted murder.

RIVERA, J. (dissenting).

On this appeal, the Court of Appeals was asked to determine whether the trial evidence was legally sufficient to support Gonzalez’ conviction on four counts of attempted murder based on the steps he took to accomplish those crimes at the hands of his hired accomplice, who was in actuality a government informant. Under our law, the evidence was sufficient if, viewed in the light most favorable to the prosecution, Gonzalez’ conduct was dangerously close to achieving the crimes, but for his accomplice’s cooperation with the authorities. That threshold was met here. Gonzalez provided the informant with the names and address of the intended victims, the location of the keys to enter their home and directions on how and when to accomplish the crimes, as well as a financial incentive for committing the murders. Further, because Gonzalez was incarcerated, the informant worked with law enforcement to convince him that nothing remained to be done other than the murders at the hands of his supposed accomplice.

Gonzalez’ singular purpose was to ensure, from a distance, the inevitable commission of the murders by his accomplice. Nonetheless, the majority concluded that the acts  he took never passed “mere conversations and planning”. The majority reached that conclusion by engaging in a weight of the evidence analysis that questioned the viability of Gonzalez’ murder-for-hire scheme.  But the law is clear that the Court may consider only whether the evidence was legally sufficient, not whether the evidence was factually persuasive, to support a conviction. Given that the accomplice never intended to commit the crimes, the majority did not point to a single step that remained to be taken for Gonzalez to ensure that the intended murders would be committed as he planned them. The majority essentially rejected the individualized approach to criminal-attempt liability and instead erected a contrived hurdle to prosecuting a contract murder where the hired killer was an informant.

In the context of this murder-for-hire, the evidence was sufficient as a matter of law. Gonzalez both planned the killings and took all necessary steps that, if the circumstances had been as he believed them to be, would have resulted in the murders. The impossibility of achieving the crime based on the informant’s lack of intent or action in furtherance of the murders was no obstacle to conviction for the attempted crimes. The sufficiency of the evidence turned on Gonzalez’ conduct, not that of the informant.

A verdict is legally sufficient when, viewing the evidence in a light most favorable to the People, there is a valid line of reasoning and permissible inferences from which a rational jury could have found the elements of the crime proved beyond a reasonable doubt. This deferential standard is employed because the courts’ role on legal sufficiency review is simply to determine whether enough evidence has been presented so that the resulting verdict was lawful.

In the context of a murder for hire, although the defendant has intentionally distanced themselves from the crime by enlisting another to kill the intended victim, the defendant may be culpable for an attempt so long as the defendant or the accomplice’s conduct tends to effect the commission of the crime.  A defendant does not escape potential criminal liability by enlisting another to assist in commission of the crime because the law recognizes that hat a person does by another the person does by themselves.

The rule holds even where the accomplice is an informant and has no criminal intent and performs no overt act in furtherance of the offense. A legal or factual impossibility is no defense. If the conduct in which a person engages would otherwise constitute a criminal attempt, it is no defense to a prosecution for such attempt that the crime charged to have been attempted was, under the attendant circumstances, factually or legally impossible of commission, if such crime could have been committed had the attendant circumstances been as such person believed them to be. In other words, a defendant’s acts may come or advance very near to the accomplishment of the intended crime so long as the crime itself would have been committed but for timely interference of the informant.

Here, it was beyond dispute that Gonzalez intended to kill his spouse and mother-in-law, and he chose MS as his instrument in that crime. The only question on appeal was whether a rational jury could conclude that his actions crossed the line from mere preparation and rendered the crime dangerously close to completion. The jury could.

Gonzalez took every step necessary to accomplish his goal. Specifically, he provided MS with an incentive, tailored to address MS’s impending eviction, by offering him a house in exchange for killing the intended victims; he set the date, time, location and manner of the murders; he provided instructions on where to park the car, how to enter the house, and where to find keys to the house and car so that MS could leave with Gonzalez’ children; and he drafted and provided MS a letter for the friend who would take care of the children and the template for a suicide note to facilitate his plan.

Gonzalez never abandoned or vacillated from his plan. He easily could have done so at any time. He could have called off the murders when he met MS in jail or by contacting MS or his girlfriend. Instead, he consistently reaffirmed his interest in completing the murders quickly because, as he stated in one of his notes, “I need my life back and my kids.” And shortly before the scheduled crimes, he met with MS to ensure MS was ready to follow through with the plan the next day.

Once Gonzalez provided all the information essential for successful completion of the crimes—answers to the who, where, when, and how, as well as the location of keys to the home and car—he, in all but the most literal sense, placed the power to commit the murders in MS’s hands. The overt acts in which Gonzalez engaged, in furtherance of the plot to murder his intended victims] made it apparent that the contract murder was dangerously near completion, and that Gonzalez was merely waiting for confirmation of their deaths.

Here, as far as he knew, MS was fully capable of and intended to kill Gonzalez’ spouse and mother-in-law in accordance with his detailed plan. And Gonzalez provided MS with information both necessary and sufficient to accomplish the murders. MS worked with the authorities to ensure Gonzalez believed that completion of the crimes was underway; all that remained was, on the evening agreed upon, for MS to go to the address provided by Gonzalez, get the keys to the home in the place where he said they would be found, enter the home at the time and in the manner Gonzalez had instructed, and kill the persons identified by him in accordance with his orders. Under the circumstances, Gonzalez believed nothing remained for him to do but to call MS to confirm the murders. When he made that call, Gonzales rested assured that MS had performed his end of the bargain. Thus, a rational jury could conclude that the only reason that an attempt was not made to kill the intended victims was because the informant immediately contacted law enforcement personnel and informed them of the plot. That is, but for MS’s deception, two people very well may have been murdered in their home through Gonzalez’ efforts.

Gonzales intended to murder and, at every step of the way, his conduct comported with this intention.

Judge Rivera would reverse and remit to the Appellate Division for determination of the facts and issues in a weight of the evidence review.

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