A person is guilty of conspiracy in the sixth degree when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct.

Conspiracy in the sixth degree is a class B misdemeanor.

A person is guilty of conspiracy in the fifth degree when, with intent that conduct constituting:

A person is guilty of conspiracy in the fourth degree when, with intent that conduct constituting:

A person is guilty of conspiracy in the third degree when, with intent that conduct constituting a class B or a class C felony be performed, he, being over eighteen years of age, agrees with one or more persons under sixteen years of age to engage in or cause the performance of such conduct.

Conspiracy in the third degree is a class D felony.

A person is guilty of conspiracy in the second degree when, with intent that conduct constituting a class A felony be performed, he agrees with one or more persons to engage in or cause the performance of such conduct.

Conspiracy in the second degree is a class B felony.

A person is guilty of conspiracy in the first degree when, with intent that conduct constituting a class A felony be performed, he, being over eighteen years of age, agrees with one or more persons under sixteen years of age to engage in or cause the performance of such conduct.

Conspiracy in the first degree is a class A-I felony.

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.

It is no defense to a prosecution for conspiracy that, owing to criminal irresponsibility or other legal incapacity or exemption, or to unawareness of the criminal nature of the agreement or the object conduct or of the defendant's criminal purpose or to other factors precluding the mental state required for the commission of conspiracy or the object crime, one or more of the defendant's co-conspirators could not be guilty of conspiracy or the object crime.

For purposes of this article, conspiracy to commit the crime of enterprise corruption in violation of section 460.20 of this chapter shall not constitute an offense.

566*566 Office of the Appellate Defender, New York City (Sara Gurwitch and Richard M. Greenberg of counsel), for appellant.

Robert T. Johnson, District Attorney, Bronx (Na Na Park, Joseph N. Ferdenzi and Nancy D. Killian of counsel), for respondent.

Chief Judge KAYE and Judges GRAFFEO, READ, SMITH, PIGOTT and JONES concur.

567*567 OPINION OF THE COURT

CIPARICK, J.

The question presented by this appeal is whether a conditional agreement to murder a person in the future can be subject to prosecution under our conspiracy law. In particular, we are asked to determine whether evidence presented at defendant's nonjury trial was legally sufficient to support his conviction for conspiracy in the second degree (see Penal Law § 105.15). We conclude that the evidence presented was sufficient to support the conviction and that the contingencies imposed did not negate the existence of a conspiratorial agreement.

Defendant, while incarcerated at Rikers Island on child endangerment and promotion of prostitution charges, confided in fellow inmate, Martin Mitchell, who, unbeknownst to defendant, was a government informant, that he was willing to pay $5,000 to have the 14-year-old complaining witness in his child endangerment case killed. Mitchell, who was nearing release from Rikers Island, informed a New York City Police Department (NYPD) detective of his conversation with defendant. At the detective's request, Mitchell again met with defendant and told defendant that he knew of a hit man who would kill the intended victim. During this conversation defendant gave Mitchell a telephone number so that he could make contact with defendant's associates once he was released in order to arrange for the contract killing.

On August 23, 2002, Mitchell, who was now released from incarceration, visited defendant at Rikers Island. Their conversation was recorded as Mitchell was wired with a tape recorder at the request of the NYPD. During this meeting, defendant changed the intended victim of the contract killing from the complaining witness to a rival named "Seven," who had months earlier allegedly shot defendant in the head. Defendant also stated that he would now pay $4,000 to have Seven killed and expressed optimism that he would soon be getting out of jail.

A week later, Mitchell and an undercover officer, who posed as a hit man and was equipped with a hidden tape recorder, visited defendant at Rikers Island. Defendant, Mitchell and the undercover discussed that the complaining witness was to be 568*568 left alone and that the now intended target of the killing would be Seven. In the presence of the undercover, Mitchell told defendant that they would charge $4,000 for the hit. Defendant instructed the undercover to telephone coconspirator Crystal Rhodes to obtain information on contacting another of defendant's associates named Kenny so they could discuss the plan for killing Seven. Defendant wrote Rhodes's telephone number on a piece of paper for the undercover.

As defendant instructed, the undercover called Rhodes, who provided two telephone numbers to contact Kenny. The undercover called both numbers and an unidentified female answered and informed him that Kenny was unavailable. During the second call, the undercover discovered that Kenny was currently incarcerated.

On September 9, 2002, the undercover again called Rhodes, who attempted a three-way call with herself, defendant and the undercover, but because of a technical difficulty the three-way call was not established. Rhodes then relayed messages back and forth between the undercover and defendant. The undercover advised defendant that Kenny was presently incarcerated, at which time defendant agreed to have the undercover visit him the following Friday at Rikers Island.

On September 13, 2002, the undercover, who was again equipped with a tape recorder, returned to Rikers Island for another visit with defendant. During that conversation, defendant instructed the undercover to "[j]ust hold the girl" and, in regard to the other intended victim, to "wait [until he] g[o]t out ... because [he wanted to] put [his] hands on some major money." The undercover inquired as to the identity of the intended victim, and defendant replied: "The one that I want done ... [is the one] who got me set up for the shot. I was shot right here in the head ... [His name is] Seven." Defendant further stated that he knew that Seven lived in Manhattan, but did not know the exact address; defendant then gave a general description of the location of Seven's apartment. Defendant also described Seven as being "six-one, six-two, slender build, real dark ... [n]o gold teeth." Defendant continued: "When you [are] in jail, you ain't got nothin[g] ... `[H]ere, take this thousand dollars.' I can't do that in jail, there's no money in my pocket in jail ... all I got is my word." Defendant goes on to state that: "If I say its gonna happen, [you] know, to the best of my abilities, if it didn't happen, it means I got shot again or 569*569 something ... [s]omething to really prevent it from happening... I really want him bad."^[1]

Additionally, during this visit, defendant stated that he will "try to keep a tab on [Seven]" and the undercover stated that he will "open [his] eyes and go out lookin[g]." Defendant further stated that a woman he knows, Rabia Walker, "runs into him every now and then" and that "she could show [the undercover] the building" where Seven lives. The undercover then told defendant that he would take pictures of individuals fitting Seven's description at the building where Seven supposedly lived and show them to Walker for a positive identification. On September 20, 2002, the undercover spoke to Rhodes by telephone. Rhodes indicated that she was aware of the plan to have him take pictures of individuals matching Seven's description and that the pictures would be presented to Walker for identification. Rhodes then gave the undercover Walker's telephone number.

On September 22, 2002, the undercover called Walker, who acknowledged that she too knew of the plan to kill Seven and that she was to identify Seven from pictures that he would show her. The next day, the undercover telephoned Walker, at which time she stated that "there'll be no payments made or anything because [defendant] doesn't want anything done until he comes home." Shortly thereafter, defendant was arrested and charged with conspiracy in the second degree.

After a nonjury trial, Supreme Court decided that defendant and Mitchell entered into an agreement to fulfill defendant's intention to eliminate Seven. Supreme Court also found that "there were overt acts sufficient in this case as to constitute the legal prerequisite for a conspiracy in the second degree." The Appellate Division unanimously affirmed, holding that "the agreement to kill the intended victim remained firm, notwithstanding that defendant wanted the killing postponed [and that] evidence also established numerous overt acts in furtherance of the agreement, including steps taken to enable the hired killer to locate and identify the intended victim" (29 AD3d 362, 362-363 [2006]). A Judge of this Court granted leave to appeal, and we now affirm.

570*570 Analysis

Defendant argues that the evidence against him was legally insufficient to support a finding that he entered into an agreement to kill Seven since he conditioned any action on his release from jail, he did not enter into an agreement to have Seven killed but only found and identified, and that there was no agreement since he and the undercover never discussed price. The People argue that under a sufficiency standard,^[2] there was ample evidence offered at trial that proved that defendant entered into an agreement to kill Seven, overt acts in furtherance of that goal were committed and defendant did not place a condition on the agreement that prevented the formation of the agreement itself to kill Seven.

Section 105.15 of the Penal Law provides that "[a] person is guilty of conspiracy in the second degree when, with intent that conduct constituting a class A felony be performed, he agrees with one or more persons to engage in or cause the performance of such conduct." Furthermore, it is well settled that "[a] conspiracy consists of an agreement to commit an underlying substantive crime ..., coupled with an overt act committed by one of the conspirators in furtherance of the conspiracy" (People v Caban, 5 NY3d 143, 149 [2005]).

We are here presented with the question whether conditions placed on an agreement can negate the existence of a conspiracy. The federal circuit courts provide some guidance in this regard since they have considered whether a purported agreement that is conditioned by a defendant can be considered an agreement to commit an unlawful act under conspiracy law. The First and Eighth Circuits have adopted the approach that an agreement with a condition will be effective only if the defendant subjectively believes the condition is likely to be fulfilled (United States v Anello, 765 F2d 253, 262 [1st Cir 1985]; United States v Brown, 946 F2d 58, 61 [8th Cir 1991]). The Appellate Division here relied upon the First Circuit's holding in United States v Palmer (203 F3d 55, 64 [1st Cir 2000]), which followed Anello, where the federal court held that "[l]iability should attach if the defendant reasonably believed that the conditions 571*571 would obtain." In Anello, the defendant had conditioned his purchase of marijuana on its quality. The defendant, however, proceeded with obtaining the funds to purchase the drugs in anticipation that his quality concerns would be met. The court found "that the `quality' condition was unlikely to prove a serious impediment" (Anello, 765 F2d at 263) to the formation of the agreement to purchase the marijuana, since the defendant subjectively believed that the condition would be fulfilled and, as such, proceeded to fulfill his obligations under the agreement.

Three other circuits take a different approach, holding that conditions to an agreement are legally irrelevant (see United States v Grassi, 616 F2d 1295, 1302 [5th Cir 1980]; United States v Prince, 883 F2d 953, 958 [11th Cir 1989]), unless the conditions are so unlikely to be met that the agreement is illusory (United States v Podolsky, 798 F2d 177, 179 [7th Cir 1986]). We need not go as far as this to resolve this case; even under the Anello, Palmer and Brown test, defendant's conviction would be upheld. Defendant reasonably believed the condition to the execution of the planned murder—his release from prison—would occur.

Defendant asks us to reject all the federal cases just cited in favor of United States v Melchor-Lopez (627 F2d 886, 891 [9th Cir 1980]), which he reads as holding that there is no legally effective agreement if conditions are set but not fulfilled. This is a misreading of Melchor-Lopez, which involved not a conditional agreement but the absence of any agreement. In Melchor-Lopez, "government agents produced $80,000 in an effort to induce Melchor-Lopez to bring heroin into the United States for sale, [but] he steadfastly refused to agree to any such transaction, insisting that any transfer would have to be made in San Luis, Mexico" (627 F2d at 889). The Ninth Circuit held that "the evidence fell far short of showing an agreement because [the defendant] firmly insisted on certain conditions unacceptable to his would-be co-conspirators" (627 F2d at 891). Melchor-Lopez thus stands for the proposition that "conditions" demanded by a party which are "unacceptable" to the other party may create an inability for the parties to enter into an agreement.

Here, neither party imposed a condition on entry into the agreement that was unacceptable to the other. Similarly, we have previously held that an "agreement" to murder a victim is effectuated when the coconspirators accept the defendant's 572*572 invitation to kill the victim (see Caban, 5 NY3d at 149). Thus, the determinative factor is whether there was an agreement— not whether agreed-upon conditions made the performance of the agreement contingent upon the happening of an event.

Here, the conditions that defendant imposed on the performance of the agreement—to commit a murder—were that nothing was to happen to Seven until defendant was released from jail and was able to secure money to pay for the hit. These requirements were not "conditions" negating the existence of an agreement to kill Seven—they were terms of the agreement. In other words, defendant's wish to delay the killing and payment until he was released from prison was not a demand in negotiations that prevented the parties from reaching the agreement to kill Seven, but a temporal component of the agreement accepted by both parties.

A conspiratorial agreement will be found where there is a "concrete and unambiguous ... expression of [defendant's] intent to violate the law" (Caban, 5 NY3d at 149, quoting People v Schwimmer, 66 AD2d 91, 95 [2d Dept 1978], affd47 NY2d 1004 [1979] for reasons stated below). Both Mitchell's and the undercover's testimony reveal that defendant entered into an agreement to commit the underlying substantive crime of murder in the first degree, and that there were overt acts committed in furtherance of that goal (see Caban, 5 NY3d at 149).

Defendant also proposes that since the amount to be paid to the undercover was not agreed upon there could be no conspiratorial agreement. Clearly, there was evidence that the parties agreed upon the price. In the initial meeting between defendant and Mitchell, defendant mentioned a $4,000 price, and defendant could not have doubted that Mitchell had passed that number on to the undercover (the supposed hit man). Moreover, at a later meeting in the presence of the undercover, Mitchell repeated that figure to defendant as the price for the hit, and defendant responded, "[y]eah, yeah, yeah." Thereafter, the parties worked out the details of the conspiracy, defendant dispatched the undercover to locate the intended victim, and defendant coordinated with his associates outside of prison to assist in locating and identifying the intended victim. The evidence was therefore sufficient to support the conclusion by the finder of fact that an agreement had been made.

573*573 Therefore, viewing the evidence in a light most favorable to the People and drawing all reasonable inferences in their favor as we must, we conclude that defendant's conviction was supported by the evidence presented at trial.

Accordingly, the order of the Appellate Division should be affirmed.

Order affirmed.

[1] Defendant considered having Seven killed while Seven was incarcerated at Rikers Island at the same time as defendant; however, Seven was apparently released on bail before defendant could have him killed. Defendant, while reminiscing with Mitchell about the lost opportunity, stated that "it would be cheaper to get it done in jail anyway ... 5 or 6 hundred [dollars] as opposed to the 4 thousand [dollars] I was gonna pay in the streets."

[2] The standard for determining legal sufficiency "is whether the evidence, viewed in the light most favorable to the People, could lead a rational trier of fact to conclude that the elements of the crime had been proven beyond a reasonable doubt" (People v Rossey, 89 NY2d 970, 971 [1997]; see also People v Bleakley, 69 NY2d 490, 495 [1987]). All reasonable inferences must be drawn in the People's favor (see People v Ford, 66 NY2d 428, 437 [1985]).

Morton N. Wekstein and Stephen J. Schwartz for Thomas Ozarowski, Martin Miller, Marc Zakarin and Roger Santavicca, appellants.

Dante S. Alberi for Philip Benenati, appellant.

J. Radley Herold for Thomas O'Neill, appellant.

James J. Duggan for Russell DePasquale, appellant.

Carl A. Vergari, District Attorney (Janet Cunard of counsel), for respondent.

Chief Judge BREITEL and Judges JASEN, GABRIELLI, JONES, WACHTLER and COOKE concur.

485*485FUCHSBERG, J.

These seven defendants, Thomas Ozarowski, Russell DePasquale, Martin Miller, Marc Zakarin, Philip Benenati, Roger Santavicca, and Thomas O'Neill,^[1] were all convicted of conspiracy in the third degree (Penal Law, § 105.05) for their joint participation in an act of violence which resulted in extraordinarily severe injury to their victim. Upon the basis of the conspiracy conviction, they were also convicted of two counts of assault in the second degree (Penal Law, § 120.05, subds 1, 2), three counts of possession of a dangerous weapon (Penal Law, § 265.05, subd 9, renum § 265.01, subd [2]; L 1974, ch 1041, § 3) and one count of criminal trespass in the third degree (Penal Law, § 140.10). All seven defendants were sentenced as youthful offenders (CPL art 720). Benenati and Zakarin were given probationary terms; Ozarowski, Miller, O'Neill, DePasquale and Santavicca received reformatory sentences of indeterminate length.

Among the contentions defendants raise on appeal is the assertion that the requisite specific intent to commit second-degree 486*486 assault was not proved against each of them. In that regard, they urge that the finding of such intent made by the trial court, in this nonjury trial, was based on uncorroborated accomplice testimony and on postconspiracy statements which should not have been admitted against all defendants.

We affirm all the convictions for the reasons which follow.

In setting them out, it will be useful to outline the skein of events leading up to the assault. On March 1 and 2 of 1971, Russell DePasquale and Chester Ozarowski, the latter not a defendant in this case, were involved in separate altercations with different employees of Nathan's, a fast-food restaurant located in the City of Yonkers. Each had been threatened by an employee with a bared knife or similar weapon; DePasquale had thrown a garbage can at his assailant in order to make good his escape. The evidence further indicated that there existed some sort of feud between the day shift at Nathan's and a combination of young men of which Chester Ozarowski and Russell DePasquale were a part.

On the evening of March 2, members of this group gathered at the home of defendant Miller to discuss these incidents. DePasquale was present, but Chester Ozarowski was not. His brother, defendant Thomas Ozarowski, was there. Two witnesses, Joseph Artanis and Arlette Travalini, later testified that all of the defendants who are parties to this appeal were present in the apartment, save Santavicca. Artanis was an accomplice witness; Arlette was not.

Arlette, Artanis and other witnesses swore that all the six defendants present at Miller's apartment left there to go to Nathan's. In the lobby of the apartment house, they met Chester Ozarowski and two others, Gerard Fitzpatrick and Thomas Capasso. Arlette described how, while they were still in the lobby, Zakarin took a baseball bat from beneath his coat and handed it to Miller. Artanis testified that there were several baseball bats lying on a sofa in the room in Miller's apartment itself when the decision to go to Nathan's was made. Other witnesses, whose testimony is in substance undisputed, saw bats in the possession of various defendants that night.

They headed for Nathan's in three cars. Santavicca was picked up en route by prearrangement. Arlette was dropped off at her home. When some of the defendants arrived at the planned meeting spot in a parking lot near Nathan's, it was discovered that one of the cars had not arrived. Some of the 487*487 defendants returned to check on the missing car; eventually all arrived at the appointed place. Their movements were co-ordinate.

Testimony as to what occurred after they reached Nathan's is less clear. Miller apparently entered Nathan's to provoke an incident; he ordered pizza, accepted it, and then ran out without paying for it. Nathan's employees did not respond with either violence or threatened violence. An employee of Nathan's so testified. Fitzpatrick, Benenati, and Capasso apparently went to a candy store nearby, found it closed, and then sat or stood near a wall from which they could see the garbage area behind Nathan's.

At about that time, Artanis saw Selim Rabadi, an employee of Nathan's night shift not known to defendants, exit from the rear of the restaurant pushing a garbage cart, saw Chester Ozarowski emerge from the garbage bin holding something behind his back, and then saw Chester swing a bat at Rabadi's head. The only evidence of motivation for this act is the events already described.

Rabadi, as a result of that blow, which fractured his skull, is paralyzed on one side of his body and has lost his vision, much of his hearing, control over his bodily functions, and, to some extent, control over his emotional behavior. Nevertheless, he was able to take the stand, his doctor having testified that, within limits, he was capable of giving accurate testimony. Rabadi's description of the attack was somewhat different from that of Artanis. He recalled that, before blacking out, a group of youths beat him from behind while one of them held him by the neck in front. His story fits with that told by defendant O'Neill.

O'Neill, who gave statements to the police favoring the prosecution, was called by the People at a preliminary hearing, during the course of which he changed his story drastically, characterizing his earlier statements as lies told to the police out of fear. On the other hand, at the trial itself, on cross-examination, his story, while still restrained, reverted to some of its original version. For instance, he there testified that, in the apartment, Thomas Ozarowski had stated that his brother Chester was planning to go to Nathan's to "talk" to the employee who had assailed him, that Thomas had expressed the desire to go with Chester as he expected trouble, and that the entire group then indicated its desire to go with Chester for the same reason. O'Neill further testified that, 488*488 once the group had reached Nathan's, he and most of the others went straight to a garbage bin in the rear of the restaurant and hid there until Rabadi arrived to dump garbage, when he, O'Neill, arose from the bin behind the others, who were also leaving it as Rabadi retreated. He heard a thud, saw the body, and ran.

Indeed, all of the defendants fled from the shopping center after the incident. Although an eyewitness, one John O'Mara, could not identify them individually, he saw the group flight. Some of the defendants later denied to police that they had ever left Miller's apartment that evening, but others of them made detailed statements, which led police to the locations where three baseball bats had been discarded. In addition, Santavicca told a school friend, Dennis De Lango, the next day, that "We think we killed a Spic last night". De Lango, who was not otherwise involved, so testified and thus, by evidence admissible against Santavicca (People v Peller, 291 N.Y. 438, 443; People v Gioia, 286 App Div 528), provided the necessary corroboration for the accomplice testimony as to the role of Santavicca, who was the only defendant to have joined the others after they left the apartment.^[2]

The rapid, continuous and related sequence of events on the night of the assault, the planful character of the group action, the immediacy with which their response followed the initial altercations, the fact that these were discussed at the meeting from which the adventure at Nathan's took off, the fact that the defendants armed themselves with baseball bats in the expectation that their foes would use deadly knives, and the en masse nature of their deployment at Nathan's were all telling circumstances which illuminated the events of the night of March 2. On the basis of all this proof it is, therefore, not surprising that the Trial Judge found the conclusion inescapable that there was a common plan or scheme hatched in Miller's apartment that evening and that overt acts in furtherance of it took place (Penal Law, §§ 105.05, 105.20).

Accordingly, the more troubling question is not whether there was a conspiracy, but rather, what its goal was, for, in order to support a conviction of conspiracy in the third degree, 489*489 that goal must have been a felony (Penal Law, § 105.05). In that connection, the defendants assert that, at most, the evidence falls short of proving the element of intent required for conviction of felonious assault, arguing that the proof supports only the existence of an agreement to go to Nathan's to provoke a "fair fight" and that the baseball bats were taken along to be used in self-defense and only if opponents used knives as weapons. The difficulty with that argument is two-fold. First, its emphasis on the form rather than the substance of the agreement between the defendants, does not alter its essentially factual character, whose determination adversely to defendants now stands affirmed by the Appellate Division. Second, the claim that the bats were taken along only for self-defense, a matter subject too to assessment for credibility, ignores subdivision 1 of section 35.15 of the Penal Law, which limits such a defense to situations in which defendants do not act as provocateurs.

However, that still leaves open the determination of whether the specific intent proved here supported the particular felonies towards which the indictment charges the conspiracy was directed. The People here were required to prove intent to commit the specific crimes charged against each of the defendants. Intent, like any other element of a crime, may be proved by circumstantial evidence. (People v Agron, 10 N.Y.2d 130, 140; People v Weiss, 290 N.Y. 160; People v May, 9 AD2d 508, 512; People v Leyra, 1 N.Y.2d 199, 206; People v Taddio, 292 N.Y. 488, 492.)

The inference of intent under the conspiracy doctrine presents special problems, however. As the United States Supreme Court has recently noted: "[W]e scrutinize the record for evidence of such intent with special care in a conspiracy case for, as we have indicated in a related context, `charges of conspiracy are not to be made out by piling inference upon inference, thus fashioning . . . a dragnet to draw in all substantive crimes.' Direct Sales Co. v. United States, 319 U. S. 703, 711 (1943). See also Ingram v. United States, 360 U. S. 672, 680 (1959)." (Anderson v United States, 417 US 211, 224.)

Our own case law supports this principle. In distinguishing the conspiracy case from the ordinary case in which a defendant's own intent may be inferred from his actions, we stated: "Attempting to link Hernandez to Agron's acts upon the theory of conspiracy, the prosecution was required to prove a separate premeditated intent to kill on the part of Hernandez 490*490 (People v. Weiss, 290 N.Y. 160; People v. Emieleta, 238 N.Y. 158; People v. May, 9 A D 2d 508). The present case is unlike the felony murder cases where mere intentional participation in the underlying felony renders all of the nonkiller participants equally guilty of first degree murder (People v. Wood, 8 N Y 2d 48, 51; People v. Emieleta, supra, at p. 163; People v. May, supra)." (People v Agron, 10 N.Y.2d 130, 135, supra.)

In the Agron case, the evidence as to whether defendant Hernandez knew of Agron's possession of a knife on the night in question was conflicting. We therefore refused to affirm Hernandez' conviction on a conspiracy theory, since the facts which were used to show his intent did not exclude to a moral certainty all other possible conclusions (p 140). We did, however, sustain the conviction of defendant Agron, noting that his contention that he had only meant to injure and not to kill was of no avail: "This, of course, does not constitute a defense, since defendant is presumed to have intended the natural and necessary consequences of his acts (People v. Schmidt, 168 N.Y. 568, 574, 576). `The weapon used and the vital part of the body on which the blow was inflicted justified the jury in finding that the defendant intended to take life.' (People v. Schmidt, supra; People v. Emieleta, 238 N.Y. 158, 162, supra)." (People v Agron, supra, 139.)

And we said in People v Weiss (290 N.Y. 160, 171, supra): "The court charged that if Epstein and Weiss knew that Simmons had a dangerous weapon and it was their understanding that Simmons was merely to assault Leder with it, they would be responsible for the normal and necessary consequences of his act and it would not lie in their mouths to say that they had intended to have Leder assaulted and beaten with the weapon but that they did not intend to have him killed. That charge constituted a serious error of law". (Emphasis added.)

What this sequence of legal propositions establishes is that, while the ultimate act of violence may be used by the trier of facts in making the inference of intent as to the defendant who actually struck the blow, that act is not determinative of the intent of the other conspirators. Thus, in the case before us, the question is not what Chester Ozarowski intended when he hit Selim Rabadi a crushing blow to the head, but rather whether Chester's act was one intended by all of the others and one performed in furtherance of the conspiracy. While the nature of the blow is useful in imputing intent to do serious 491*491 injury to Chester, it may not be used to infer such intent on the part of the others.

Therefore, in order to uphold the convictions here on both the first and second counts of assault in the second degree (Penal Law, § 120.05, subds 1, 2), the court below was required to find from the evidence of the conspiracy itself that each defendant had the specific intent to do "serious physical injury" as well as the intent to do "physical injury" by means of a dangerous instrument^[3] (Penal Law, § 10.00, subds 9, 10, respectively, define those terms; see Matter of Taylor, 62 Misc 2d 529; People v Rumaner, 45 AD2d 290; Practice Commentary, McKinney's Cons Laws of NY, Book 39, Penal Law, § 120.05, subd 2, p 342; cf. Penal Law of 1909, § 242, subd 4; People v Katz, 290 N.Y. 361; People v Osinski, 281 N.Y. 129; People v Ball, 283 App Div 285).

We think that the court below, sitting as the trier of the facts, was entitled to decide that each defendant formed the specific intent that one or more of their number should do such serious injury during the planned fight. Unlike the situation in the Agron case, there was here no doubt that all defendants knew Chester had a bat; indeed several of them had bats. These were not secreted from one another, but openly displayed and taken along in the presence of all. The surrounding circumstances make perfectly clear that a baseball game was not what the gang had in mind. Nor was their intent, any more than were its consequences, of any different character because those who shared it were youths rather than adults. It only requires, in addition, that it be logical to assume, on the basis of this concerted effort to start a fight while armed with bats, that nothing less than serious injury was intended. The court below concluded that this was the case, and we see no reason to disturb its conclusions.

On both the conspiracy and intent issues, as to each of the defendants, we further note that corroboration of an accomplice need not extend to every detail of such testimony; it is 492*492 sufficient if it tends to connect each defendant with the crime (People v Daniels, 37 N.Y.2d 624, 630, and cases cited therein; CPL 60.22, subd 1). By that standard, accomplice witnesses O'Neill, Fitzpatrick, and Artanis were more than amply corroborated, among other things, by the testimony of Arlette Travalini and Selim Rabadi.

We also note that one of the defendants, Benenati, raises one question different from those urged by his fellow defendants, i.e., renunciation. In doing so, he relies on the fact that, after arriving at the shopping center, he wandered off with Fitzpatrick and Thomas Capasso in search of a candy store, although we note that he returned with them to their perch overlooking the garbage area of Nathan's, which was the arena of the assault. Renunciation requires more than merely withdrawal from a conspiracy. It is an affirmative defense, and there must be a demonstration, inter alia, that a "substantial effort" was made to "prevent the commission" of the conspiratorial plan. (Penal Law, § 40.10, subd 1.) Since Benenati indisputably was present in the apartment where and when the conspiracy was formed, it appears difficult to question the finding that the defense has not been sustained.

Finally, the opinion of the trial court, fairly read, reveals that, while it utilized some details from postconspiratorial statements made by certain defendants to better present the issues arising from the checkerboard of facts here in perspective, in its legal analysis, it relied only on the relevant evidence in determining the guilt or innocence of each defendant.

Nor was the trial court's sentencing of the defendants as youthful offenders violative of their constitutional rights. Although article 75 of the Penal Law, pursuant to which it acted, has been repealed since the sentencing (L 1974, ch 652, as amd by L 1974, ch 653, § 7), its repeal did not affect sentences already imposed. (L 1974, ch 653, § 10.) While the constitutionality of article 75 has been called into question by at least one court on equal protection grounds (United States ex rel. Sero v Preiser, 506 F.2d 1115, cert den 421 US 921; cf. People v Daniel J. S., 48 AD2d 665), that holding dealt exclusively with longer sentences mandated for youths than for adults on convictions of misdemeanors. The defendants here were punished far less severely than if they had been sentenced as adults for the same felonies of which they were found guilty. (CPL art 720.)

493*493Accordingly, the order of the Appellate Division should be affirmed.

Order affirmed.

[1] An eighth defendant, Richard Strome, has not appealed. Others who were charged with participation in the alleged conspiracy were tried separately.

[2] The evidence indicates that the plan was complete when the group left the apartment, and Santavicca joined in it when he arrived, ratifying, in effect, its purposes and acts. (Samara v United States, 263 F 12, 15-16; Lile v United States, 264 F.2d 278, 281; People v Arnstein, 157 App Div 766, 770; People v Sher, 68 Misc 2d 917, 926.)

[3] The Penal Law defines a dangerous instrument as "any instrument, article or substance * * * which, under the circumstances in which it is used, attempted to be used or threatened to be used, is readily capable of causing death or other serious physical injury." (Penal Law, § 10.00, subd 13.) Clearly, under the circumstances here, a baseball bat qualifies as such a dangerous instrument. (See People v Rumaner, 45 AD2d 290, supra.) It is too obvious to need elaboration that when used outside its sports context, it is a dangerous instrument of the very type recognized as an effective weapon since primitive times.

George W. Conaty, Jr., for Willie McGee, appellant.

Edward J. Nowak, Public Defender (Deborah S. Gerber of counsel), for Lionel Albert Edwards and another, appellants.

John Manning Regan for Jake A. Waters, appellant.

Lawrence T. Kurlander, District Attorney (Sharon P. Stiller of counsel), for respondent.

Judges JASEN, GABRIELLI, JONES, WACHTLER and FUCHSBERG concur with Chief Judge COOKE; Judge MEYER concurs in a separate opinion.

54*54Chief Judge COOKE.

Two trials are considered here. Out of one evolve appeals by defendants McGee, Edwards and Tolliver, who were convicted, after a jury trial, of one count of conspiracy in the third degree and 28 counts of bribery in the second degree. From the other, arise appeals by defendants Quamina and Waters, who were convicted, upon a jury verdict, of one count of conspiracy in the third degree and 10 counts of bribery in the second degree. The judgments of conviction were affirmed by five separate orders of the Appellate Division and leave to appeal to this court was granted. For the reasons that follow, the order affirming the judgment of conviction of McGee should be modified to the extent of reversing the conviction on the bribery counts and dismissing the indictment as to those counts, and as so modified, affirmed. The remaining orders affirming the convictions of Quamina, Waters, Edwards and Tolliver should be affirmed.

I

At the joint trial of Quamina and Waters, the People's theory was that the defendants proposed an arrangement whereby Rochester Police Officers Gerald Luciano and Gustave J. D'Aprile, members of the Vice Squad, would be paid to prevent the arrest of defendants' gambling associates while enforcing the law against competitors. The evidence at trial consisted of the testimony of Luciano, D'Aprile, defendants and others, as well as tape recordings of conversations between the officers and defendants.

In an effort to enlist Quamina as an informant, Luciano suggested that a meeting be arranged to discuss organized crime activities in the black community. Quamina expressed interest, mentioning that he and Jake Waters had previously considered meeting with the officers. Quamina ultimately arranged a meeting for the morning of December 9, 1973. At 55*55 this and other prearranged meetings, D'Aprile was equipped with a hidden microphone for monitoring and recording. The officers sought information concerning mob activities in the Rochester area, and Quamina and Waters complained of pressures exerted by one Lippa, a purported mob leader, on black numbers operators. Both Quamina and Waters indicated that blacks should have some control of the numbers operation in their own community and discussed the formation of a black organization to replace the Lippa organization. They stressed the need for police protection, noting that profits would be enhanced if police pressure were exerted on competing operators. The officers were offered monetary and other benefits in exchange for their assistance.

At a subsequent meeting on March 3, the agreement to pay the officers for their services was reaffirmed with a minor modification: until the plan became fully operative, the officers were to be paid for each arrest rather than at a weekly rate. A list of competing numbers operators to be arrested was given to the officers. Five arrests were made based on the information supplied. At a meeting in late April, defendants supplied the officers with a list of operators who were not to be arrested. At an earlier April meeting Quamina and Waters each gave the officers $100; at two meetings in July, Waters paid a total of $200.

The defendants asserted the defense of coercion under section 200.05 of the Penal Law and the affirmative defense of entrapment under section 40.05 of the Penal Law. The defense presented evidence that in the fall of 1974, Waters complained to a friend that he had been shaken down by some police officers and repeated that claim to an official of the State Police and a Deputy Attorney-General. Quamina had made similar complaints. At trial, both Quamina and Waters testified that their fear of being arrested if they did not co-operate was their motivation for meeting and paying the officers.

II

Defendants McGee, Edwards and Tolliver were later brought into the operation. In October, 1974, Quamina arranged an organizational meeting at which he, Edwards, Tolliver and the officers were present. Edwards, proclaiming himself spokesman for those present as well as McGee, articulated the group's desire to start a black organization, and suggested that the officers could make money if they wanted 56*56 to be "outlaws". At a subsequent meeting with Edwards, the officers were told that they would receive a percentage of the receipts from assigned numbers writers in exchange for police protection. On November 13, there was a meeting with Edwards and McGee at which the group discussed the scope of police activity, as well as weekly payments to the police. No payments were made at that meeting. During the meeting, McGee indicated that he was in accord with Edwards' goals. At various intervals during the ensuing months, Edwards made payments to the officers.

As in the trial of the other defendants, Edwards, Tolliver and McGee asserted coercion and entrapment defenses. According to Edwards, the officers threatened to put Edwards out of business if he did not agree to their terms. The parties finally agreed upon the sum of $100. Edwards admitted making payments but asserted that he stalled on giving information. Pressure was allegedly applied to Tolliver when Edwards failed to keep his appointments in an attempt to end the relationship. Edwards testified that he had no income from gambling, that the officers were shaking down the defendants, and that Edwards had never bribed a police officer.

III

Defendants assert numerous errors in the conduct of the trials, many of which are common to some or all of the defendants. A substantial argument is advanced by McGee alone, however, and that issue is treated first.

McGee argues that the Trial Judge erred in charging the jury that he could be found guilty of the substantive offense of bribery by virtue of his status as a conspirator. After determining that there was sufficient evidence of an agreement among the defendants to go to the jury on the conspiracy count, the court charged that each conspirator could be convicted of bribery on the basis of acts of any one of the coconspirators committed in furtherance of the conspiracy (see Pinkerton v United States, 328 US 640). The court also charged that McGee alone could be convicted of the bribery if he solicited, requested, commanded, importuned or intentionally aided another to engage in that offense (see Penal Law, § 20.00). McGee is correct in his contention that the portion of the charge concerning conspirator liability was erroneous. It is held that liability for the substantive offense may not be independently predicated upon defendant's participation in an 57*57underlying conspiracy. As there was no evidence of McGee's complicity in the bribery counts submitted to the jury,^[1] and thus no basis for accomplice liability, there must be a reversal of the conviction of bribery and a dismissal of the indictment as to those counts.^[2]

In rejecting the notion that one's status as a conspirator standing alone is sufficient to support a conviction for a substantive offense committed by a coconspirator, it is noted that the Legislature has defined the conduct that will render a person criminally responsible for the act of another. Conspicuously absent from section 20.00 of the Penal Law is reference to one who conspires to commit an offense. That omission cannot be supplied by construction. Conduct that will support a conviction for conspiracy will not perforce give rise to accessorial liability (compare Penal Law, § 105.05, with § 20.00). True, a conspirator's conduct in many instances will suffice to establish liability as an accomplice, but the concepts are, in reality, analytically distinct. To permit mere guilt of conspiracy to establish the defendant's guilt of the substantive crime without any evidence of further action on the part of the defendant, would be to expand the basis of accomplice liability beyond the legislative design.

The crime of conspiracy is an offense separate from the crime that is the object of the conspiracy. Once an illicit agreement is shown, the overt act of any conspirator may be attributed to other conspirators to establish the offense of conspiracy (cf. People v Salko, 47 N.Y.2d 230; People v Sher, 68 Misc 2d 917) and that act may be the object crime. But the overt act itself is not the crime in a conspiracy prosecution; it 58*58 is merely an element of the crime that has as its basis the agreement (cf. People v Hines, 284 N.Y. 93). It is not offensive to permit a conviction of conspiracy to stand on the overt act committed by another, for the act merely provides corroboration of the existence of the agreement and indicates that the agreement has reached a point where it poses a sufficient threat to society to impose sanctions (see 72 Harv L Rev 920, 998; 16 Ford L Rev 275, 277). But it is repugnant to our system of jurisprudence, where guilt is generally personal to the defendant (see Sayre, Criminal Responsibility for the Acts of Another, 43 Harv L Rev 689), to impose punishment, not for the socially harmful agreement to which the defendant is a party, but for substantive offenses in which he did not participate (Commonwealth v Stasiun, 349 Mass 38; see, generally, 56 Yale LJ 371).

We refuse to sanction such a result and thus decline to follow the rule adopted for Federal prosecutions in Pinkerton v United States (328 US 640, supra). Accessorial conduct may not be equated with mere membership in a conspiracy and the State may not rely solely on the latter to prove guilt of the substantive offense.^[3]

Turning then to the other issues raised, we address the argument advanced by defendants Quamina, Edwards, Tolliver and McGee that there was an insufficient foundation laid for the introduction of the recordings of the meetings between defendants and the officers. Defendants urge that the People failed to establish a complete chain of custody of the tapes from the time they were made until the time of trial, thus rendering them inadmissible. In examining the foundation laid in these cases, however, it cannot be said that the Trial Judges erred in permitting the tapes to be introduced into evidence.

One of the officers wore a microphone during the meetings and the tapes were made on a Kel-Kit recording system; a cassette recorder was also used for many conversations. The 59*59 officers testified that they listened to the tapes immediately after they were made and determined that they accurately represented the conversations in which they had participated. There was testimony that the tapes had not been altered. From May 1, 1975 until the time of trial, the tapes were in the possession of a confidential assistant in the District Attorney's office, who kept records of removal of tapes. The chain of custody prior to that time is uncertain, for others had possession of the tapes at various times throughout the investigation.

At the outset, the invitation to extend to all recordings the requirements for electronic surveillance codified in CPL article 700 is declined. That comprehensive statutory scheme is designed to minimize the intrusion of electronic eavesdropping upon an individual's right to privacy and to that end, its provisions have been strictly construed (see People v Washington, 46 N.Y.2d 116). Particularly, we have insisted upon strict compliance with its sealing requirement (CPL 700.50, subd 2), recognizing that this serves to prevent tampering, protect the privacy interests of the participants to the intercepted conversation, and establish the chain of custody (People v Nicoletti, 34 N.Y.2d 249, 253). When a party to the conversation consents to its recording, however, the constitutional privacy rights of other participants are not implicated (see United States v White, 401 US 745; Lopez v United States, 373 US 427; United States v Knohl, 379 F.2d 427, cert den 389 US 973). Hence, it is unnecessary to superimpose the admissibility requirements of article 700 on consensual recordings.

The standard to be applied, therefore, is that applicable to any real evidence sought to be admitted. In determining whether a proper foundation has been laid for the introduction of real evidence, the accuracy of the object itself is the focus of inquiry, which must be demonstrated by clear and convincing evidence (see United States v Fuentes, 563 F.2d 527, 532, cert den sub nom. Sansone v United States, 434 US 959). Accuracy or authenticity is established by proof that the offered evidence is genuine and that there has been no tampering with it (cf. People v Julian, 41 N.Y.2d 340, 342-343). The foundation necessary to establish these elements may differ according to the nature of the evidence sought to be admitted. For instance, a chain of custody is employed when "the evidence itself is not patently identifiable or is capable of being replaced or altered" (People v Connelly, 35 N.Y.2d 171, 174 60*60 [drugs]). Mere identification by one familiar with the object, however, will be sufficient "when the object possesses unique characteristics or markings" and any material alteration would be readily apparent (id.; see People v Flanigan, 174 N.Y. 356).

Tape recordings made by a participant to a conversation do not fall within the category reserved for fungible evidence, such as drugs. The uniformity of these substances, making identification difficult, generally, justifies a requirement of tracing fungible goods through each hand with which it comes in contact. The inherent difficulty with fungible goods simply is not present when evidence of a conversation is sought to be introduced, for the conversation itself is unique and the participants are available to attest to its accuracy. Thus, a chain of custody is not required for the introduction of tape recordings such as those present here.

A foundation may be established by a participant to the conversation who testifies that the conversation has been accurately and fairly reproduced (see United States v Amrep Corp., 560 F.2d 539, cert den 434 US 1015; United States v Steinberg, 551 F.2d 510; United States v Knohl, 379 F.2d 427, cert den 389 US 973, supra; Monroe v United States, 234 F.2d 49, cert den 352 US 873). Proof that the evidence has not been altered may be established in a similar fashion. This testimony, if credited by the Trial Judge, is sufficient to establish that the taped conversation accurately and fairly represents the event to which it refers.

On this record, there is sufficient proof of accuracy and authenticity of the tapes offered to warrant their admission. The infirmities concerning chain of custody or inaudibility properly go to the weight of the evidence, not its admissibility (cf. People v Julian, 41 N.Y.2d 340, supra; People v White, 40 N.Y.2d 797).

Finally, defendants urge that the People failed to disprove the bribery defense of coercion (Penal Law, § 200.05) beyond a reasonable doubt and that the evidence establishes the affirmative defense of entrapment (Penal Law, § 40.05) as a matter of law. The record does not support these contentions; the issues were properly submitted to the jury.

The affirmative defense of entrapment is designed to prevent punishment for an offense "which is the product of the creative activity of [the State's] own officials" (Sorrells v United States, 287 US 435, 451). 61*61 Whether a defendant is predisposed to commit an offense or was induced to commit the offense is a question of fact (see People v Freeman, 36 N.Y.2d 768; People v Sundholm, 58 AD2d 224; People v Shangraw, 55 AD2d 796). Similarly, the coercion defense, designed to relieve from liability for bribery one who is a victim of extortion or coercion by the public servant allegedly bribed (see Hechtman, Practice Commentaries, McKinney's Cons Laws of NY, Book 39, Penal Law, § 200.15, p 420), presents factual issues (see People v Court, 43 N.Y.2d 817, affg 52 AD2d 891).

The record before us presents a conflict between the People's version of events and that of defendants. Defendants asserted that the police officers induced their participation in the bribery scheme and employed coercive tactics to ensure compliance. Though the record does reveal some evidence of conduct that might be construed as harassment, there is also evidence of mutual co-operation. Hence, resolution of the issues was a purely factual matter within the province of the jury. Nor does the record compel application of this court's recent decision in People v Isaacson (44 N.Y.2d 511), as the facts here simply do not present the kind of reprehensible conduct condemned in that case.

We have examined the remaining arguments that have been preserved for review and find that none form the basis for reversal.

Accordingly, the order of the Appellate Division in People v McGee should be modified in accordance with this opinion by dismissing the bribery counts of the indictment and, as so modified, affirmed. The orders of the Appellate Division as to the other defendants should be affirmed.

MEYER, J. (concurring).

I concur in the result because I agree that neither the Federal nor the State Constitution requires the obtention of a warrant in relation to participant monitoring. I write, nonetheless, to express my belief that the equivocal basis for excluding such recordings from New York's eavesdropping law (CPL, art 700),^[1] the developments in this 62*62 area of the law that have since occurred,^[2] and the importance of the issue to individual privacy^[3] strongly suggest that the Legislature should review the question with a view toward imposition of controls,^[4] or limitations on use^[5] or, perhaps, even proscription.^[6]

In People v McGee: Order modified in accordance with the opinion herein and, as so modified, affirmed.

In People v Edwards and People v Tolliver: Orders affirmed.

In People v Quamina and Waters: Orders affirmed.

[1] The trial court dismissed two bribery counts on the ground that there was no agreement on November 13 to pay the specific amount of $50 to each officer as charged in the indictment. The court determined, however, that there was sufficient evidence of an agreement among defendants and the remaining counts were submitted to the jury.

[2] We reject McGee's further claim that his statutory right to a speedy trial was violated by the delay between his indictment on May 1, 1975 and commencement of trial on February 14, 1977. On the motion to dismiss, court congestion was assigned as the reason for the delay and counsel for McGee in effect admitted that the People were ready for trial within three months of the indictment. Thus, the defendant is not entitled to dismissal pursuant to CPL 30.30 (People v Conrad, 44 N.Y.2d 863).

Nor were McGee's rights under CPL 30.20 or the Constitution violated. Given the relevant factors, including the length of the delay, the lack of incarceration and the absence of a claim of prejudice, neither CPL 30.20 nor the Constitution would require dismissal (see People v Taranovich, 37 N.Y.2d 442; compare People v Moore, 47 N.Y.2d 872).

[3] We are not unmindful of cases indicating that "[e]ach conspirator is liable * * * for the acts of every associate done in the effort to carry the conspiracy into effect" (e.g., People v Collins, 234 N.Y. 355, 361; see, also, People v Luciano, 277 N.Y. 348; People v Michalow, 229 N.Y. 325; People v McKane, 143 N.Y. 455). Those cases, however, do not support extending the agency rationale to impose liability for the substantive offense solely on the basis of liability for the agreement. Indeed, closer examination of each of them reveals that the defendant had actively participated to a degree sufficient to impose accessorial liability.

[1] The Report of the Joint Legislative Committee to Study Illegal Interception of Communications (NY Legis Doc, 1956, No. 53, at pp 24-25; 1956 McKinney's Session Laws of NY, at p 1361), noted that though recording a person's voice without his knowledge might be unethical or reprehensible and arouses indignation "we have been unable to draw a clear line, without exceptions, at which point it might become criminal".

[2] (Westin, Privacy & Freedom; Fishman, Wiretapping & Eavesdropping; Carr, The Law of Electronic Surveillance; Westin, Science, Privacy and Freedom: Issues and Proposals For the 1970's, 66 Col L Rev 1205; Greenawalt, Consent Problem in Wiretapping & Eavesdropping: Surreptitious Monitoring With the Consent of a Participant in a Conversation, 68 Col L Rev 189; Fishman, Interception of Communications Without a Court Order: Title III, Consent and the Expectation of Privacy, 51 St John's L Rev 41; Report of the National Commission for the Review of State and Federal Laws Relating to Wiretapping and Electronic Surveillance [hereafter National Wiretapping Commission Report]; Report of the Committees on Federal Legislation and on Civil Rights of the Association of the Bar of the City of New York, dated April 24, 1968, entitled Proposed Legislation on Wiretapping and Eavesdropping After Berger v New York and Katz v United States.)

[3] (HARLAN, J., dissenting in United States v White, 401 US 745, 769, 787-790; GOLDMAN, J., dissenting in People v Fiedler, 30 AD2d 476, affd without opn 24 N.Y.2d 960; Carr, op. cit., n 2, § 3.05; Westin, op. cit., n 2, p 390; Greenawalt, op. cit., n 2, pp 216, 221-240; Association of the Bar Report, supra, n 2, p 25.)

[4] (American Bar Association Standards Relating To The Administration of Criminal Justice, Electronic Surveillance, Standard 2-4.1 [Approved Draft, 1978]; Carr, op. cit., n 2, § 3.05; National Wiretapping Commission Report, n 2, pp 113-118, supra.)

[5] (E.g., Wisconsin Electronic Surveillance Control Law, construed in State ex rel. Arnold v County Ct. of Rock County, 51 Wis 2d 434.)

[6] (E.g., Pa Stat Ann, tit 18, § 5705, subd [1] [Purdon Supp, 1978]; Cal Penal Code, § 631, subd [a]; § 632, subd [a]; People v Kurth, 34 Ill 2d 387, 395, construing the Illinois statute.)

Carl A. Vergari, District Attorney (Richard E. Weill, Gerald D. Reilly and Anthony J. Servino of counsel), for appellant.

Candee & Hilbert (Richard S. Candee of counsel), for respondent.

DAMIANI, J. P., WEINSTEIN and BRACKEN, JJ., concur.

TITONE, J.

The question before us is whether a telephonic conversation may constitute an overt act in furtherance of a conspiracy. We conclude that it may when the conversation is an act independent of the agreement itself and tends to carry out the object of the conspiracy. Because these criteria are lacking here, we affirm the order of dismissal (110 Misc 2d 987).

Defendant, Moises Menache, a physician, was indicted for conspiracy in the sixth degree (Penal Law, § 105.00). It is alleged that he agreed with three other individuals to influence certain unnamed employees of a medical college to accept his son for admission as a student. In pursuit of 336*336 the scheme, defendant allegedly paid the sum of $5,000 to one of the coconspirators who, in turn, was supposed to pass this money to the employees at the medical college.

An indictment charging conspiracy is jurisdictionally defective unless it is alleged that an overt act was committed within the Statute of Limitations (Grunewald v United States, 353 US 391, 396-397; People v Hines, 284 N.Y. 93, 112-114). Since conspiracy in the sixth degree is a class B misdemeanor (Penal Law, § 105.00) the applicable Statute of Limitations is two years (CPL 30.10, subd 2, par [c]).

The indictment before us sets forth five overt acts, the first four of which are clearly outside the two-year limitations period. Our concern is only with the fifth overt act which charges that "[o]n or about and between January 1, 1979 and August 1, 1979, the defendant communicated by telephone with [a named coconspirator] concerning the progress of [the coconspirator's] efforts to secure the admission of the defendant's son into the * * * [m]edical [c]ollege".

The County Court granted defendant's motion to dismiss the indictment.^[1] We now affirm.

To place the issue before us in proper focus, it should be noted that at common law the gist of the offense of conspiracy was the unlawful combination or agreement. No overt act was necessary to complete the crime (see People v Sheldon, 139 N.Y. 251, 265; Clark and Marshall, Law of Crimes [7th ed], § 9.00, pp 550-551). While this remains the rule in some States, New York, as well as the Federal Government and several sister States, have added an overt act requirement by statute (Penal Law, § 105.20; Clark and Marshall, op. cit., pp 552-553; LaFave and Scott, Criminal Law, § 62, pp 476-477).

As observed by the Supreme Court, "[t]he function of the overt act in a conspiracy prosecution is simply to manifest `that the conspiracy is at work,' * * * and is neither a project still resting solely in the minds of the conspirators 337*337 nor a fully completed operation no longer in existence" (Yates v United States, 354 US 298, 334). New York law appears to be in accord (see People v McGee, 49 N.Y.2d 48, 58; People v Hines, 284 N.Y. 93, supra; People v Tavorina, 257 N.Y. 84, 93; People v Sheldon, 139 N.Y. 251, supra). An overt act, therefore, may be committed by any one of the conspirators and, while it need not be unlawful in and of itself, it must be a step towards the execution of the conspiracy and not simply a part of the agreement (People v McGee, supra, p 57; People v Sheldon, supra, pp 265-266; People ex rel. Conte v Flood, 53 Misc 2d 109; People v De Cabia, 10 Misc 2d 923, 924, affd 8 AD2d 825, affd 7 N.Y.2d 823; cf. People v Russo, 57 AD2d 578, mot for lv to app den 42 N.Y.2d 979).

Insofar as some cases might be read as suggesting that the overt act must be the commencement of the criminal act, or an element of the offense which is the object of the conspiracy (see, e.g., People v Bauer, 32 AD2d 463, affd 26 N.Y.2d 915), we agree with LaFave and Scott that they "are incorrect for they are inconsistent with the function of the overt act requirement * * * If the agreement has been established but the object has not been attained, virtually any act will satisfy the overt act requirement" (LaFave and Scott, op. cit., pp 477-478; see People v Sheldon, 139 N.Y. 251, 266, supra).^[2]

It is thus too much of a generalization to state, in a conclusory fashion, that "mere talk", without more, can never constitute an overt act in furtherance of a conspiracy. The more apt question is the content and the context of the conversation (see People v Sher, 68 Misc 2d 917, 925-926; cf. People v Ozarowski, 38 N.Y.2d 481, 488; People v Lakomec, 86 AD2d 77, 78-80; People v Teeter, 86 Misc 2d 532, 535, affd 62 AD2d 1158, affd 47 N.Y.2d 1002).

We have no doubt, for example, that a telephonic conversation in which the implements of the crime are ordered 338*338 would constitute an overt act in furtherance of a conspiracy (see United States v Strickland, 493 F.2d 182, 187, cert dsmd 419 US 801). But other communications may not be that clear cut. Conversation among conspirators may merely be cementing the agreement itself (cf. People v Russo, 57 AD2d 578, supra; People v Wolff, 24 AD2d 828) or may be an overt act in furtherance of the agreement (see People v Sher, supra, pp 925-926; LaFave and Scott, op. cit., p 478). And, conversation which attempts to enlist others may or may not constitute an overt act in furtherance of the conspiracy (cf. People ex rel. Conte v Flood, 53 Misc 2d 109, 110, supra). "The object of the statute [requiring proof of an overt act] is accomplished when it is shown that the parties have proceeded to act upon the unlawful agreement (People v. Sheldon, 139 N.Y. 251)" (People v De Cabia, 10 Misc 2d 923, 924, supra).

The telephonic communications in this case, however, as alleged by the People, simply involve conversations between two coconspirators. Neither singly nor in combination do they constitute sufficiently independent acts "as would tend to flow from the unlawful agreement and tend to carry out the object of the conspiracy" (People v De Cabia, supra, p 924). Consequently, they do not satisfy the overt act requirement.

For the reasons stated, the order of the County Court should be affirmed

Order of the County Court, Westchester County, dated October 1, 1981, affirmed.

[1] We note, parenthetically, that the issue was properly raised by motion to dismiss (CPL 210.20, subd 1, par [f]; see People v Kase, 76 AD2d 532, 535, affd 53 N.Y.2d 989; People v O'Neil, 107 Misc 2d 340, 341). People v Kohut (30 N.Y.2d 183, 192) is not to the contrary, as that case, which did not involve a conspiracy prosecution, was decided prior to the enactment of the CPL and the court observed that the CPL might mandate a different result.

[2] We do not view People v Bauer (32 AD2d 463, affd 26 N.Y.2d 915) as a binding precedent. The reversal of the conspiracy conviction in that case was on the law and the facts, thus barring Court of Appeals review at that time (People v Mackell, 40 N.Y.2d 59), and the implication that the overt act must be an element of the offense which is the object of the conspiracy is flatly contracted by People v McGee (49 N.Y.2d 48), People v Ozarowski (38 N.Y.2d 481), People v Sheldon (139 N.Y. 251) and People v Sher (68 Misc 2d 917) (cited in both McGee and Ozarowski). Moreover, the holding in Bauer (supra), that the acquittal of one conspirator requires the acquittal of the other conspirator, was rejected in People v Berkowitz (50 N.Y.2d 333, 342-343).