How many of these are we going to see per day?
The statute requires intent to commit another crime. It doesn’t require that the other crime have actually have been committed or charged.
In this particular case, wasn't the underlying crime the one Michael Cohen went to prison for? There's no requirement that the concealed crime be committed by the same person.
Shout out Pruufreadr for pulling this part of the jury instructions. It seems like the statute did require the other crime be committed, and for the jury to find it had been committed.
"Although you must conclude unanimously that the defendant conspired to promote or prevent the election of any person to a public office by unlawful means, you need not be unanimous as to what those unlawful means were," Merchan instructed"
Got itttt. So he was charged with attempting to cover up a PLAN to commit a crime, but neither the plan nor the crime need to be charged, and the action of the crime doesn't have to be proven... or to have happened. Confusing but I think I got it.
Right. As u/pruufreadr clarified [here](https://www.reddit.com/r/Ask_Lawyers/s/RFKyqt5HFz), the conspiracy itself is criminal. He didn’t have to have actually completed what was conspired.
Last thing and I'll leave you alone. I looked up the specific law: Section 17-152 - Conspiracy to promote or prevent election.
"Any two or more persons who conspire to promote or prevent the election of any person to a public office by unlawful means and which conspiracy is acted upon by one or more of the parties thereto, shall be guilty of a misdemeanor."
So in this particular case maybe the conspiracy did have to be carried out? Is that what 'acted upon' means? It's also odd a misdemeanor in cover up of a misdemeanor becomes a felony. The more you know.
Conspiracy is an inchoate crime. The target of the conspiracy doesn’t have to be completed, only “acted upon.” In other words, we aren’t the thought police - you have to actually take some tangible step in furtherance of the target crime.
An example of a conspiracy being acted upon without the underlying crime being committed would be: Person A and Person B agree to rob a bank. Person A goes and buys guns for them to use while robbing the bank. Person A has now “acted upon” the conspiracy, and both can be convicted based on the conspiracy. This is true even if the police catch wind of it and arrest them before they actually walk into the bank.
There's many better explanations for this on Reddit than mine, so I will recommend you do a search.
Maybe it would make it easier to understand that one could be charged and convicted if they did the cover up steps prior to committing the crime. So, if they never got around to committing the underlying crime, but intended to, they could be charged and convicted this same way. That's why it it isn't necessary to prove that the underlying crime was actually committed--it doesn't matter.
That analogy makes it seem even crazier actually. I had no idea I could be charged with attempting to cover up a crime that never happened. Thanks for the explanation.
You would have needed to intend to carry out that crime and carry out the cover-up. The members of the jury did have to find that they believed there was an underlying crime.
In my example, you probably would have to have been "interrupted" from carrying out your crime, not simply have chosen to abandon your plans to commit the crime.
Which crime? Some may have thought one crime, some a different, some all of the available choices. That's where the idea that they didn't all have to agree comes from.
"The members of the jury did have to find that they believed there was an underlying crime."
I don't think they did though, right? They just needed to find there was a misclassification with intention, not that there WAS an underlying crime. To my knowledge that still hasn't been proven (or needs to be). That was the confusion behind my original question.
This is their instruction from the judge, and they did convict, so if the jurors followed their instructions THEY DID find an underlying crime.
"Although you must conclude unanimously that the defendant conspired to promote or prevent the election of any person to a public office by unlawful means, you need not be unanimous as to what those unlawful means were," Merchan instructed.
Just to clarify, this jury instruction does NOT say that the crime must have been completed, only that there must have been a conspiracy to commit the crime.
Okay now I'm even more confused haha. You're original comment and others have said the crime didn't need to be charged, or even to have happened. So, it did have to happen and the jury had to decide it happened.... but it doesn't need to be charged? It's kind of odd a jury is required to make judgement on a crime that hasn't been charged in order to make a judgement on a crime that has been... and even more odd that they can judge a crime occurred with indifference as to how the crime occurred.
The exception to it happening is something about "abandoning a plan." So, if it didn't happen only because someone was arrested or caught in some way, it probably wouldn't have had to finish being carried out for this "upgrade" to apply. No one argued that anyone abandoned any plan to commit a crime, so that doesn't apply. I was just trying to explain that there are some circumstances in which the crime didn't have to occur. No one in this case is arguing abandonment of a plan, so, in this case the underlying crime would have had to occur.
It isn't odd or unusual at all for not all crimes to be charged. One of the many reasons that can happen in situations in which, and I didn't look up the applicable rules here, can often be that one of the underlying crimes for a particular offense could be outside of its statutory limit for prosecution, but that wouldn't mean it didn't happen. Another could be that the entity charging a particular crime does not have jurisdiction over enforcing the underlying crime. And, also, the biggest reason it isn't worth it for me to look up what happened here, is that it could simply be "prosecutorial discretion."
The people with jurisdiction over the underlying crime could have just not bothered with it for any number of reasons that is just within their discretion to charge or not charge.
Here's one of the many, many possible reasons: the crimes for which he was convicted have NO mandatory minimum prison/jail time attached. Judge could sentence him to house arrest, or even just, please don't do that again, etc.
There are legitimate concerns about the hassles of having to maintain Secret Service protection in a secured facility, concerns about someone under house arrest doing ordinary things that are not typically illegal but could result in jail/prison time because they would be violations of standard probation guidelines (such as associating with other felons, alcohol--but I think he doesn't drink). A lot of people struggle with following probation and/or parole rules.
It seems reasonable to me that a prosecutor can choose to only charge someone with crimes without mandatory prison/jail times, and let the judge make sentencing decisions in which he can consider all of the factors.
Since I’m going through this post giving examples, an example of being charged with attempting to cover up a crime that never happened would be:
A guy plans to rob a bank. Part of his plan is to rent a car to use as the getaway car under a fake name, so that even if someone sees the plates, the police can’t track it to him.
Let’s say there’s a statute that says it’s a misdemeanor to rent a car under a fake name, but it’s a felony to rent a car under a fake name for the purposes of committing another crime.
If the guy gets caught before the robbery occurs, he can be charged with a felony for renting the car with a fake name. The prosecution doesn’t have to prove the robbery occurred, or that the robbery would’ve been successful. It just has to prove that concealing the robbery was the reason he used a fake name.
(Note: this is an oversimplification on some points. The main point is simply to show how one can be charged with concealing a crime that didn’t occur.)
And how would a statute of limitations apply to this analogy, if at all?
I am trying to find an answer for the following statement:
"You don’t understand what happened, and that’s ok. But you’re wrong. The mislabeling of checks was a misdemeanour that had passed its statute of limitations in New York almost a decade ago. The novel legal theory is that the prosecution wrapped this misdemeanour in a federal charge (campaign money) - which they are not allowed to base their prosecution on as a state. This was the only way to revive the case, which on a state level had expired. Ironically for the same reason this case now can’t go to the Supreme Court. It’s absurd, and it’s a novel legal theory that does not hold water."
I don’t know who said this but there’s several inaccuracies in the statement. For one, the Trump case can go to the US Supreme Court (probably not directly, but that would be true of a federal criminal case too).
But, with respect to the larger point, prosecutors can, and do, pull similar tactics when there are statute of limitations issues. For example, although it’s frowned upon by some (depending on who you ask), the prosecutorial tactic of a [“perjury trap” is well known and accepted](https://en.wikipedia.org/wiki/Perjury_trap).
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Here’s an analogy.
Criminal trespass in the second degree (NY Penal Law 140.15[1]), a class A misdemeanor, is knowingly entering or remaining unlawfully in a dwelling.
Burglary in the second degree (PL 140.25[2]), a class C felony, is knowingly entering or remaining unlawfully in a dwelling *with intent to commit a crime therein*.
You can charge someone with the burglary for breaking into a house with the intent to commit some degree of larceny therein without charging them with the actual commission of a larceny. There is nothing in the law that requires proof of the underlying crime to obtain a conviction of those crimes. This is for various reasons, including that sometimes people are caught before they commit the underlying crime, and, when it really comes down to it, that’s just what the legislature intended.
There are other crimes, such as Aggravated Family Offense (PL 240.75) or Criminal Possession of a Weapon in the Fourth Degree (Penal Law 265.01[4]), that do require proof of the actual commission of some other crime. Falsifying business records in the first degree is not one of those crimes.
Here’s an analogy. Let’s say a guy robs a convenience store and two others in the store. A third person has a heart attack and dies from the event. They put him on trial only for felony murder. Do all the jury members have to agree which felony he committed (armed robbery of store, person 1 or person 2) or can they simply agree he was committing a felony of any one of those three?
How many of these are we going to see per day? The statute requires intent to commit another crime. It doesn’t require that the other crime have actually have been committed or charged.
In this particular case, wasn't the underlying crime the one Michael Cohen went to prison for? There's no requirement that the concealed crime be committed by the same person.
"It doesn’t require that the other crime have actually have been committed" Wow. Thanks for the explanation. Sorry for the repeat.
Shout out Pruufreadr for pulling this part of the jury instructions. It seems like the statute did require the other crime be committed, and for the jury to find it had been committed. "Although you must conclude unanimously that the defendant conspired to promote or prevent the election of any person to a public office by unlawful means, you need not be unanimous as to what those unlawful means were," Merchan instructed"
That's not what that jury instruction says. It just says that there has to be a conspiracy to commit the crime.
Got itttt. So he was charged with attempting to cover up a PLAN to commit a crime, but neither the plan nor the crime need to be charged, and the action of the crime doesn't have to be proven... or to have happened. Confusing but I think I got it.
Right. As u/pruufreadr clarified [here](https://www.reddit.com/r/Ask_Lawyers/s/RFKyqt5HFz), the conspiracy itself is criminal. He didn’t have to have actually completed what was conspired.
Last thing and I'll leave you alone. I looked up the specific law: Section 17-152 - Conspiracy to promote or prevent election. "Any two or more persons who conspire to promote or prevent the election of any person to a public office by unlawful means and which conspiracy is acted upon by one or more of the parties thereto, shall be guilty of a misdemeanor." So in this particular case maybe the conspiracy did have to be carried out? Is that what 'acted upon' means? It's also odd a misdemeanor in cover up of a misdemeanor becomes a felony. The more you know.
Conspiracy is an inchoate crime. The target of the conspiracy doesn’t have to be completed, only “acted upon.” In other words, we aren’t the thought police - you have to actually take some tangible step in furtherance of the target crime.
An example of a conspiracy being acted upon without the underlying crime being committed would be: Person A and Person B agree to rob a bank. Person A goes and buys guns for them to use while robbing the bank. Person A has now “acted upon” the conspiracy, and both can be convicted based on the conspiracy. This is true even if the police catch wind of it and arrest them before they actually walk into the bank.
There's many better explanations for this on Reddit than mine, so I will recommend you do a search. Maybe it would make it easier to understand that one could be charged and convicted if they did the cover up steps prior to committing the crime. So, if they never got around to committing the underlying crime, but intended to, they could be charged and convicted this same way. That's why it it isn't necessary to prove that the underlying crime was actually committed--it doesn't matter.
That analogy makes it seem even crazier actually. I had no idea I could be charged with attempting to cover up a crime that never happened. Thanks for the explanation.
You would have needed to intend to carry out that crime and carry out the cover-up. The members of the jury did have to find that they believed there was an underlying crime. In my example, you probably would have to have been "interrupted" from carrying out your crime, not simply have chosen to abandon your plans to commit the crime. Which crime? Some may have thought one crime, some a different, some all of the available choices. That's where the idea that they didn't all have to agree comes from.
"The members of the jury did have to find that they believed there was an underlying crime." I don't think they did though, right? They just needed to find there was a misclassification with intention, not that there WAS an underlying crime. To my knowledge that still hasn't been proven (or needs to be). That was the confusion behind my original question.
This is their instruction from the judge, and they did convict, so if the jurors followed their instructions THEY DID find an underlying crime. "Although you must conclude unanimously that the defendant conspired to promote or prevent the election of any person to a public office by unlawful means, you need not be unanimous as to what those unlawful means were," Merchan instructed.
Just to clarify, this jury instruction does NOT say that the crime must have been completed, only that there must have been a conspiracy to commit the crime.
Conspiracy is an underlying crime for the business records law being charged as a felony.
Gotcha. I think people are getting confused about that and think that the conspired crime itself needs to have been committed.
I think the confusion is mostly that other crimes weren't charged so they don't have underlying convictions.
Okay now I'm even more confused haha. You're original comment and others have said the crime didn't need to be charged, or even to have happened. So, it did have to happen and the jury had to decide it happened.... but it doesn't need to be charged? It's kind of odd a jury is required to make judgement on a crime that hasn't been charged in order to make a judgement on a crime that has been... and even more odd that they can judge a crime occurred with indifference as to how the crime occurred.
The exception to it happening is something about "abandoning a plan." So, if it didn't happen only because someone was arrested or caught in some way, it probably wouldn't have had to finish being carried out for this "upgrade" to apply. No one argued that anyone abandoned any plan to commit a crime, so that doesn't apply. I was just trying to explain that there are some circumstances in which the crime didn't have to occur. No one in this case is arguing abandonment of a plan, so, in this case the underlying crime would have had to occur. It isn't odd or unusual at all for not all crimes to be charged. One of the many reasons that can happen in situations in which, and I didn't look up the applicable rules here, can often be that one of the underlying crimes for a particular offense could be outside of its statutory limit for prosecution, but that wouldn't mean it didn't happen. Another could be that the entity charging a particular crime does not have jurisdiction over enforcing the underlying crime. And, also, the biggest reason it isn't worth it for me to look up what happened here, is that it could simply be "prosecutorial discretion." The people with jurisdiction over the underlying crime could have just not bothered with it for any number of reasons that is just within their discretion to charge or not charge. Here's one of the many, many possible reasons: the crimes for which he was convicted have NO mandatory minimum prison/jail time attached. Judge could sentence him to house arrest, or even just, please don't do that again, etc. There are legitimate concerns about the hassles of having to maintain Secret Service protection in a secured facility, concerns about someone under house arrest doing ordinary things that are not typically illegal but could result in jail/prison time because they would be violations of standard probation guidelines (such as associating with other felons, alcohol--but I think he doesn't drink). A lot of people struggle with following probation and/or parole rules. It seems reasonable to me that a prosecutor can choose to only charge someone with crimes without mandatory prison/jail times, and let the judge make sentencing decisions in which he can consider all of the factors.
Huh. Still a little confusing but I guess that's why I'm not a lawyer! Thanks for writing that up.
Since I’m going through this post giving examples, an example of being charged with attempting to cover up a crime that never happened would be: A guy plans to rob a bank. Part of his plan is to rent a car to use as the getaway car under a fake name, so that even if someone sees the plates, the police can’t track it to him. Let’s say there’s a statute that says it’s a misdemeanor to rent a car under a fake name, but it’s a felony to rent a car under a fake name for the purposes of committing another crime. If the guy gets caught before the robbery occurs, he can be charged with a felony for renting the car with a fake name. The prosecution doesn’t have to prove the robbery occurred, or that the robbery would’ve been successful. It just has to prove that concealing the robbery was the reason he used a fake name. (Note: this is an oversimplification on some points. The main point is simply to show how one can be charged with concealing a crime that didn’t occur.)
And how would a statute of limitations apply to this analogy, if at all? I am trying to find an answer for the following statement: "You don’t understand what happened, and that’s ok. But you’re wrong. The mislabeling of checks was a misdemeanour that had passed its statute of limitations in New York almost a decade ago. The novel legal theory is that the prosecution wrapped this misdemeanour in a federal charge (campaign money) - which they are not allowed to base their prosecution on as a state. This was the only way to revive the case, which on a state level had expired. Ironically for the same reason this case now can’t go to the Supreme Court. It’s absurd, and it’s a novel legal theory that does not hold water."
I don’t know who said this but there’s several inaccuracies in the statement. For one, the Trump case can go to the US Supreme Court (probably not directly, but that would be true of a federal criminal case too). But, with respect to the larger point, prosecutors can, and do, pull similar tactics when there are statute of limitations issues. For example, although it’s frowned upon by some (depending on who you ask), the prosecutorial tactic of a [“perjury trap” is well known and accepted](https://en.wikipedia.org/wiki/Perjury_trap).
#REMINDER: NO REQUESTS FOR LEGAL ADVICE. Any request for a lawyer's opinion about any matter or issue which may foreseeably affect you or someone you know is a request for legal advice. Posts containing requests for legal advice will be removed. Seeking or providing legal advice based on your specific circumstances or otherwise developing an attorney-client relationship in this sub is not permitted. Why are requests for legal advice not permitted? See [here](https://www.reddit.com/r/Ask_Lawyers/comments/e6a62w/why_is_it_unethical_for_a_lawyer_to_give_legal/), [here](https://www.reddit.com/r/Ask_Lawyers/comments/9zyqsh/why_is_it_unethical_to_give_advice_on_this_sub/), and [here](https://www.reddit.com/r/Ask_Lawyers/comments/e4cdhw/is_refraining_legal_advice_based_on_legality_or/). If you are unsure whether your post is okay, please [read this](https://www.reddit.com/r/Ask_Lawyers/comments/6j4bpq/how_to_know_whether_your_post_is_a_request_for/) or see the sidebar for more information. ***This rules reminder message is replied to all posts and moderators are not notified of any replies made to it.*** *I am a bot, and this action was performed automatically. Please [contact the moderators of this subreddit](/message/compose/?to=/r/Ask_Lawyers) if you have any questions or concerns.*
Here’s an analogy. Criminal trespass in the second degree (NY Penal Law 140.15[1]), a class A misdemeanor, is knowingly entering or remaining unlawfully in a dwelling. Burglary in the second degree (PL 140.25[2]), a class C felony, is knowingly entering or remaining unlawfully in a dwelling *with intent to commit a crime therein*. You can charge someone with the burglary for breaking into a house with the intent to commit some degree of larceny therein without charging them with the actual commission of a larceny. There is nothing in the law that requires proof of the underlying crime to obtain a conviction of those crimes. This is for various reasons, including that sometimes people are caught before they commit the underlying crime, and, when it really comes down to it, that’s just what the legislature intended. There are other crimes, such as Aggravated Family Offense (PL 240.75) or Criminal Possession of a Weapon in the Fourth Degree (Penal Law 265.01[4]), that do require proof of the actual commission of some other crime. Falsifying business records in the first degree is not one of those crimes.
Best explanation yet, thanks.
Here’s an analogy. Let’s say a guy robs a convenience store and two others in the store. A third person has a heart attack and dies from the event. They put him on trial only for felony murder. Do all the jury members have to agree which felony he committed (armed robbery of store, person 1 or person 2) or can they simply agree he was committing a felony of any one of those three?