A person is guilty of criminal solicitation in the fifth degree when, with intent that another person engage in conduct constituting a crime, he solicits, requests, commands, importunes or otherwise attempts to cause such other person to engage in such conduct.

Criminal solicitation in the fifth degree is a violation.

A person is guilty of criminal solicitation in the fourth degree when:

A person is guilty of criminal solicitation in the third degree when, being over eighteen years of age, with intent that another person under sixteen years of age engage in conduct that would constitute a felony, he solicits, requests, commands, importunes or otherwise attempts to cause such other person to engage in such conduct.

Criminal solicitation in the third degree is a class E felony.

A person is guilty of criminal solicitation in the second degree when, with intent that another person engage in conduct constituting a class A felony, he solicits, requests, commands, importunes or otherwise attempts to cause such other person to engage in such conduct.

Criminal solicitation in the second degree is a class D felony.

A person is guilty of criminal solicitation in the first degree when, being over eighteen years of age, with intent that another person under sixteen years of age engage in conduct that would constitute a class A felony, he solicits, requests, commands, importunes or otherwise attempts to cause such other person to engage in such conduct.

Criminal solicitation in the first degree is a class C felony.

It is no defense to a prosecution for criminal solicitation that the person solicited could not be guilty of the crime solicited owing to criminal irresponsibility or other legal incapacity or exemption, or to unawareness of the criminal nature of the conduct solicited or of the defendant's criminal purpose or to other factors precluding the mental state required for the commission of the crime in question.

A person is not guilty of criminal solicitation when his solicitation constitutes conduct of a kind that is necessarily incidental to the commission of the crime solicited.  When under such circumstances the solicitation constitutes an offense other than criminal solicitation which is related to but separate from the crime solicited, the actor is guilty of such related and separate offense only and not of criminal solicitation.

Mahler & Harris, P. C. (Stephen R. Mahler of counsel), for appellant.

Elizabeth Holtzman, District Attorney (Barbara D. Underwood, Michael Gore and Andrew J. Frisch of counsel), for respondent.

LAZER, J. P., BRACKEN and LAWRENCE, JJ., concur.

166*166BROWN, J.

This case arises out of the defendant's conviction of various crimes resulting from the operation of a motor vehicle involved in a fatal accident. We are asked on this appeal to 167*167 review a number of issues, including whether the People established the commission of an overt act necessary to sustain the defendant's conspiracy conviction based upon an attempt to murder a key witness to the accident and whether Criminal Term properly admitted into evidence the recorded conversations of the defendant's mother as a coconspirator.

The defendant was charged under three separate indictments with a variety of offenses, including leaving the scene of an accident without reporting as a felony, falsely reporting an incident in the third degree, unauthorized use of a motor vehicle in the third degree, criminal solicitation in the second degree, and conspiracy in the fourth degree. The charges arose initially out of a single-vehicle accident in which a stolen car, allegedly being driven by the defendant, collided with a utility pole, killing two of the passengers in the vehicle and injuring the others. The defendant, it was charged, fled from the scene to a nearby motel where, rather than reporting the accident to the police, he falsely reported that he had been injured during a robbery. However, one of the passengers, Lynn Zachareas, who had reported the accident to the police, went to the motel and informed the police that the defendant had been driving the vehicle. This led to the first series of charges against the defendant.

Subsequently, while incarcerated and awaiting trial on the charges arising out of the accident, the defendant allegedly conspired with a fellow inmate, Thomas Moore, to arrange for the murder of Ms. Zachareas. As it turned out, however, Moore, who had no intention of actually aiding the defendant, contacted the authorities and agreed to cooperate with them. With Moore's assistance, the defendant was placed in contact with an undercover police officer, Detective Daniel Pantano, who posed as a hired killer. Through Moore, the defendant provided Pantano with the telephone numbers of his mother and sister. During one conversation, the defendant informed Pantano that he should contact his mother and that he, the defendant, would call her and instruct her to arrange to meet with Pantano to provide him with the address and a photograph of the intended victim, as well as an initial payment against the agreed price for the killing. Pantano later spoke to both the defendant's mother and his sister regarding arrangements to obtain the photograph and the money, but no meeting ever actually took place. Based upon these events, however, the defendant was charged, inter alia, with the crimes of conspiracy and criminal solicitation.

168*168Thereafter, the indictments were consolidated pursuant to CPL 200.20 (2) (b); (4) and (5), and, following trial, the jury returned a verdict finding the defendant guilty of the crimes of unauthorized use of a motor vehicle in the third degree, leaving the scene of an accident without reporting as a felony, falsely reporting an incident in the third degree, criminal solicitation in the second degree, and conspiracy in the fourth degree.

Initially, the defendant argues that his guilt of the crime of criminal solicitation in the second degree was not established beyond a reasonable doubt. We disagree. "A person is guilty of criminal solicitation in the second degree when, with intent that another person engage in conduct constituting a class A felony, he solicits, requests, commands, importunes or otherwise attempts to cause such other person to engage in such conduct" (Penal Law § 100.10). Viewing the evidence presented to the jury in the light most favorable to the People, as we must, we conclude that a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt (see, People v Malizia, 62 N.Y.2d 755, cert denied ___ US ___, 105 S Ct 327; People v Contes, 60 N.Y.2d 620). The evidence reveals that the defendant provided telephone numbers to Moore so that the purported contract killer could arrange with the defendant's mother and sister for the payment of a fee and for the receipt of information to aid the killer in locating the prospective victim. He also suggested to Moore a possible method that the killer might use (a poisoned heroin injection), to make it appear as though the death was an accident. Moreover, from the defendant's conversations with Detective Pantano, the jury could have reasonably concluded that the defendant believed that he had reached an agreement with Pantano to the effect that Pantano would commit the murder on his behalf. In sum, there is sufficient evidence in the record from which the jury could have concluded that the defendant solicited Detective Pantano to intentionally murder Lynn Zachareas (see, Penal Law § 125.25 [1]) and therefore could have found that the defendant was guilty of the crime of criminal solicitation in the second degree (see, Penal Law § 100.10).

The defendant also contends that the People failed to prove his guilt of the crime of conspiracy in the fourth degree. Specifically, the defendant claims that the People failed to establish that he performed an overt act in furtherance of the conspiracy, an essential element of any conviction for the 169*169 crime of conspiracy (see, Penal Law § 105.20). Again, we disagree. Once a conspiratorial agreement is established, the People must prove an overt act by one of the conspirators. Such proof need not be by direct evidence but may be established circumstantially (see, People v Mackell, 47 AD2d 209, 213, affd 40 N.Y.2d 59). The purpose of the overt act requirement in conspiracy prosecutions is both to provide corroboration of the existence of the agreement to commit a crime, as well as to establish that the conspiracy has gone forward to an extent that it poses a sufficient threat to society to call for penal sanctions (see, People v McGee, 49 N.Y.2d 48, cert denied sub nom. Quamina v New York, 446 US 942; People v Menache, 98 AD2d 335).

The overt act alleged at bar was a telephone call placed by the defendant to his mother instructing her to provide a photograph of Ms. Zachareas to Detective Pantano. Clearly, a telephone conversation may constitute an overt act in furtherance of a conspiracy, provided it is an independent act which tends to carry out the conspiracy and is not simply a conversation in which the conspirational agreement is reached (see, People v Kellerman, 102 AD2d 629; cf. People v Menache, supra). The telephone conversation alleged to have occurred at bar clearly fits under the former category since its purpose was not merely to arrange for the payment of money to the hired killer to secure his agreement to murder the intended victim, but also to place a photograph and other information identifying the victim into the killer's hands and thus to carry forward the object of the conspiracy (see, People v Ortiz, 100 AD2d 6; People v Menache, supra).

Generally, under the so-called state of mind exception to the hearsay rule, a trier of facts may infer from a declarant's statement of intention to perform a subsequent act that the act was in fact performed (see, Mutual Life Ins. Co. v Hillmon, 145 US 285). Some criticism has, however, developed over the admissibility of such declarations, particularly in the context of criminal proceedings, where the inference sought to be drawn implies some conduct on the part of one other than the declarant or to some extent requires that individual's cooperation (People v Malizia, 92 AD2d 154, 159, affd 62 N.Y.2d 755, cert denied ___ US ___, 105 S Ct 327, supra). This situation commonly presents itself where the declarant states his intention to meet — or, as here, place a telephone call to — a third person. It has been held, however, that a declaration made by such an individual may properly be received in evidence 170*170 "where the statement is made under circumstances that make it probable that the expressed intent [is] a serious one, and that it [is] realistically likely that" the meeting or conversation will in fact take place (People v Malizia, 92 AD2d 154, 160, supra; see also, United States v Pheaster, 544 F.2d 353, cert denied sub nom. Inciso v United States, 429 US 1099). At bar, the expressed intent was clearly serious given the subject matter of the declaration. Further, the defendant's explicit statement to Detective Pantano that he would place the telephone call to his mother immediately and that Pantano should contact her at a specified time, made it likely that such a telephone call would be placed. Moreover, the contents of the recorded telephone conversation that Pantano thereafter had with the defendant's mother indicates that the defendant's mother understood that she was supposed to provide Pantano with a sum of money and a photograph of the intended victim. Thus, under the circumstances of this case, the jury could properly infer that the defendant acted in accordance with his expressed intention to call his mother and instruct her to secure the money and the photograph for Pantano.

The defendant further argues that it was improper to admit into evidence the recorded conversation between his mother and Detective Pantano since the People had failed to establish a prima facie case of conspiracy independent of this conversation. A well-recognized exception, however, to the hearsay rule barring the use of an admission by one defendant against a codefendant (see, People v Payne, 35 N.Y.2d 22, 27) is the principle that any declaration by a coconspirator made during the course of and in furtherance of the conspiracy is admissible against any other coconspirator (see, People v Sanders, 56 N.Y.2d 51; People v Salko, 47 N.Y.2d 230). Such a hearsay declaration of a coconspirator may be admitted into evidence only upon a showing that a prima facie case of conspiracy has been established (see, People v Sanders, supra; People v Malagon, 50 N.Y.2d 954; People v Salko, supra; People v Centore, 110 AD2d 903). Such a prima facie showing must be based upon evidence independent of the declaration sought to be introduced (see, People v Salko, supra). As noted, the existence of the conspiracy need not be based entirely upon direct evidence but may be established circumstantially (see, People v Mackell, 47 AD2d 209, 213, affd 40 N.Y.2d 59, supra). We are satisfied that the evidence in the record, independent of the content of 171*171 the conversation between Pantano and the defendant's mother, established a prima facie case of conspiracy.

The People established that the defendant agreed with Moore and Pantano to arrange for the contract murder of the witness. They also established that the defendant gave telephone numbers to Moore and Pantano to enable Pantano to contact the defendant's mother or sister to obtain money and information about the prospective victim. We would note that this act of giving the telephone numbers to these coconspirators, while not the specific overt act alleged in the indictment, would also be an overt act in furtherance of the conspiracy (see, People v Menache, 98 AD2d 335, supra). In any event, the record also establishes that following the conversations among the defendant, Moore and Pantano evidencing an unlawful agreement, the defendant committed the overt act alleged in the indictment, to wit, the call to his mother.

While the contents of the conversation between Pantano and the defendant's mother serve to buttress the conclusion that the defendant did call her and solicit her aid and participation in the conspiracy, the fact that he made the call could be also inferred from other evidence, independent of that conversation. There is sufficient evidence in the record independent of that conversation to establish a prima facie case of a conspiracy among the defendant, his mother and sister, Moore, and Pantano. Therefore, the disputed conversation was properly admitted into evidence (see, People v Salko, 47 N.Y.2d 230, supra; People v Lakomec, 86 AD2d 77).

Next, the defendant argues that the trial court should have granted his motion to sever the previously consolidated indictments. Prior to the trial, the indictments were consolidated pursuant to CPL 200.20 (2) (b), which provides that two offenses, even though based upon different criminal transactions, are joinable where they are of such nature that either proof of the first offense would be material and admissible as evidence-in-chief upon a trial of the second, or proof of the second would be material and admissible as evidence-in-chief upon a trial of the first. Clearly, in the instant case, the evidence relating to the events surrounding the automobile accident was material and admissible to establish motive at the trial of the offenses relating to the criminal solicitation and conspiracy. Similarly, the evidence relating to the criminal solicitation and conspiracy was relevant to the offenses arising out of the automobile accident. Therefore, there was sufficient basis for the court, in the exercise of its discretion, 172*172 to order the consolidation of the indictments for trial. While the defendant may have suffered some prejudice by virtue of the admission of evidence of the details of the automobile accident at the trial of the conspiracy and criminal solicitation charges, that evidence was clearly material and probative on those latter charges to show the defendant's motive and intent to arrange for the murder of the intended victim, or otherwise prevent her from testifying against him (see, People v Molineux, 168 N.Y. 264). Similarly, while the evidence of this latter, more serious set of crimes may have had a prejudicial effect upon the defendant's trial on the charges relating to the accident, they were nonetheless probative of his consciousness of guilt of those charges (see, People v Leyra, 1 N.Y.2d 199; People v Barksdale, 100 AD2d 852; People v Potter, 50 AD2d 410). Therefore, we find that the decision to consolidate the indictments did not constitute an abuse of Criminal Term's discretion.

With respect to the defendant's argument that his recorded conversations with Detective Pantano were obtained in violation of his right to counsel on the earlier charges (see, Maine v Moulton, 474 US ___, 106 S Ct 477; Mealer v Jones, 741 F.2d 1451, cert denied ___ US ___, 105 S Ct 1871), that contention, although raised for the first time on appeal, is nonetheless reviewable as a matter of law (see, People v Cullen, 50 N.Y.2d 168; People v Donovon, 107 AD2d 433, 440). It is clear from the record that these recorded conversations were obtained in violation of the defendant's right to counsel on the earlier charges, since the police knew at the time the conversations were recorded that the defendant was incarcerated awaiting trial on those charges, and thus were aware that his right to counsel on those charges had attached (see, Maine v Moulton, supra; Brewer v Williams, 430 US 387; People v Short, 110 AD2d 205). A review of the contents of the conversations, however, indicates that they concerned only the later crimes relating to the conspiracy and the solicitation to commit murder. The conversations may only be said to be incriminating with respect to the earlier charges in that, along with all of the other evidence relating to the conspiracy and the solicitation to commit murder, they were some evidence of the defendant's consciousness of guilt. In light of the other overwhelming evidence of the defendant's guilt of the earlier crimes, we are satisfied that the admission of the recorded conversations during the joint trial was harmless beyond a reasonable doubt (see, Chapman v California, 386 US 18).

173*173Finally, we have considered the defendant's remaining argument with respect to the sentence imposed and find it to be without merit (see, People v Suitte, 90 AD2d 80).

Accordingly, the judgments of conviction should, in all respects, be affirmed.

Judgment of the Supreme Court, Kings County, rendered February 23, 1984, affirmed.

Ira Richard Ressler for Samuel Lubow, appellant.

Sheldon Fried for Oscar Gissinger, appellant.

Frank S. Hogan, District Attorney (Lewis R. Friedman and Michael R. Juviler of counsel), for respondent.

Chief Judge FULD and Judges SCILEPPI, BREITEL, JASEN and GIBSON concur with Judge BERGAN; Judge BURKE concurs in result only.

62*62BERGAN, J.

The revised Penal Law creates a new kind of offense, simpler in structure than an attempt or a conspiracy, and resting solely on communication without need for any resulting action (art. 100, Criminal Solicitation, part of tit. G, Anticipatory Offenses, L. 1965, ch. 1030). Attempts to commit crimes and conspiracies are continued with some changes as crimes and these, too, are grouped within title G as "Anticipatory Offenses" (art. 105, Conspiracies; art. 110, Attempts).

The basic statutory definition of criminal solicitation is that with intent that another person shall "engage in conduct constituting a crime" the accused "solicits, requests, commands, importunes or otherwise attempts to cause such other person to engage in such conduct". This basic definitory language is continued through three grades of solicitation, the gravity depending on what crime the conduct sought to be induced would effectuate.

If the conduct would be "a crime" it is criminal solicitation in the third degree, a "violation" (§ 100.00); if the conduct would be "a felony" it is criminal solicitation in the second degree, a class A misdemeanor (§ 100.05); and if the conduct would be murder or kidnapping in the first degree it is criminal solicitation in the first degree, a class D felony (§ 100.10).

As it has been noted, nothing need be done under the statute in furtherance of the communication ("solicits, commands, importunes") to constitute the offense. The communication itself with intent the other person engage in the unlawful conduct is enough. It needs no corroboration.

And an attempt at communication which fails to reach the other person may also constitute the offense for the concluding clause "or otherwise attempts to cause such other person to engage in such conduct" would seem literally to embrace as an attempt an undelivered letter or message initiated with the necessary intent.

Appellants have been convicted after a trial by a three-Judge panel in the Criminal Court of the City of New York of violation of section 100.05 which describes solicitation to commit a felony. The information on which the prosecution is based is made by complainant Max Silverman. It describes the charge as criminal solicitation and states that "defendants attempted to cause 63*63 deponent to commit the crime of grand larceny" in that they "attempted to induce the deponent to obtain precious stones on partial credit with a view towards appropriating the property to their own use and not paying the creditors, said conduct constituting the crime of larceny by false promise".

Although the Penal Law section number is not stated in the information, it was clearly stated in court before the opening of the trial that the charge was a violation of section 100.05 and the facts alleged that the inducement was to commit grand larceny, a felony, which gave adequate notice of the nature of the offense involved.

The proof in support of the charge, if factually accepted by the trial court, as it was by a majority of the Judges (one dissenting), was sufficient to warrant conviction. The Appellate Term affirmed unanimously.

The evidence showed that complainant Silverman and both defendants were engaged in the jewelry business. It could be found that defendant Lubow owed Silverman $30,000 for diamonds on notes which were unpaid; that Lubow had told Silverman he was associated with a big operator interested in buying diamonds and introduced him to defendant Gissinger.

It could also be found that in October, 1967, Silverman met the two defendants together at their office, demanded his money, and said that because of the amount owed him he was being forced into bankruptcy.

Silverman testified in response to this Lubow said "Well, let's make it a big one, a big bankruptcy", and Gissinger said this was a good idea. When Silverman asked "how it is done" he testified that Lubow, with Gissinger participating, outlined a method by which diamonds would be purchased partly on credit, sold for less than cost, with the proceeds pyramided to boost Silverman's credit rating until very substantial amounts came in, when there was to be a bankruptcy with Silverman explaining that he had lost the cash gambling in Puerto Rico and Las Vegas. The cash would be divided among the three men. The gambling explanation for the disappearance of cash would be made to seem believable by producing credit cards for Puerto Rico and Las Vegas. Silverman testified that Lubow said "we would eventually wind up with a quarter of a million dollars each" and that Gissinger said "maybe millions".

64*64Silverman reported this proposal to the District Attorney in October, 1967 and the following month a police detective equipped Silverman with a tape recorder concealed on his person which was in operation during conversations with defendants on November 16 and which tends to substantiate the charge. The reel was received in evidence on concession that it was taken from the machine Silverman wore November 16.

A police detective testified as an expert that a "bust out operation" is a "pyramiding of credit by rapid purchasing of merchandise, and the rapid selling of the same merchandise sometimes 10 and 20 per cent the cost of the merchandise itself, and they keep selling and buying until they establish such a credit rating that they are able to purchase a large order at the end of their operation, and at this time they go into bankruptcy or they just leave".

There thus seems sufficient evidence in the record to find that defendants intended Silverman to engage in conduct constituting a felony by defrauding creditors of amounts making out grand larceny and that they importuned Silverman to engage in such conduct. Thus the proof meets the actual terms of the statute.

The statute itself is a valid exercise of legislative power. Commentators closely associated with the drafting of the Model Penal Code of the American Law Institute, from which the New York solicitation statute stems, have observed: "Purposeful solicitation presents dangers calling for preventive intervention and is sufficiently indicative of a disposition towards criminal activity to call for liability. Moreover, the fortuity that the person solicited does not agree to commit or attempt to commit the incited crime plainly should not relieve the solicitor of liability, when otherwise he would be a conspirator or an accomplice."^[1]

Solicitation to commit a felony was a misdemeanor at common law (People v. Bush, 4 Hill 133, 135; Rex v. Higgins, 2 East 5). Summarizing this historical fact Judge CARDOZO observed: "So at common law, incitement to a felony, when it did not reach the stage of an attempt, was itself a separate crime, and like 65*65conspiracy, which it resembled, was a misdemeanor, not a felony" (People v. Werblow, 241 N.Y. 55, 66, citing Higgins and Rex v. Gregory, L. R. 1 C. C. R. 77).

But as People v. Bush demonstrates, the solicitation in early New York cases was treated as closely related to an attempt. There defendant asked another to burn a barn and gave him a match for that purpose. This principle was followed to some extent (e.g., People v. Bloom, 149 App. Div. 295, 296-299) but there were fundamental difficulties with it under the concept of attempt and it seems not to have been followed after Bloom.

Although this Penal Law provision is the first statutory enactment in New York, there have been statutes aimed at criminal solicitation in some other States, notably California.

In commenting on the criminal solicitation enactment of article 100, two lawyers who were active in the work of the State Commission on Revision of the Penal Law and Criminal Code which prepared the present statute observed that article 100 "closes that gap" for those who believe, as apparently the commission and the American Law Institute did, that "solicitation to commit a crime involves sufficient culpability to warrant criminal sanctions".^[2]

There are, however, potential difficulties inherent in this penal provision which should be looked at, even though all of them are not decisive in this present case. One, of course, is the absence of any need for corroboration. The tape recording here tends to give some independent support to the testimony of Silverman, but there are types of criminal conduct which might be solicited where there would be a heavy thrust placed on the credibility of a single witness testifying to a conversation. Extraordinary care might be required in deciding when to prosecute; in determining the truth; and in appellate review of the factual decision.

One example would be the suggestion of one person to another that he commit a sexual offense; another is the suggestion that he commit perjury. The Model Penal Code did not require corroboration; 66*66 but aside from the need for corroboration which is traditional in some sexual offenses, there are dangers in the misinterpretation of innuendos or remarks which could be taken as invitations to commit sexual offenses. These are discussed by Wechsler-Jones-Korn (61 Col. L. Rev., p. 623, supra) with the comment that "it is a risk implicit in the punishment of almost all inchoate crimes".

In two opinions for the California Supreme Court, Justice TRAYNOR has analyzed that State's criminal solicitations statute (Penal Code, § 653f; Benson v. Superior Ct. of Los Angeles County, 57 Cal. 2d 240 [1962], and People v. Burt, 45 Cal. 2d 311 [1955]).

The first case was for solicitation to commit perjury and the second for solicitation to commit extortion.

The California statute is based on a specific list of serious crimes to which criminal solicitation expressly applies; but as to all of them the statute requires that the offense "must be proved by the testimony of two witnesses, or of one witness and corroborating circumstances".

The basic public justification for legislative enactment is, however, very similar to New York's and was developed in the Burt opinion: "Legislative concern with the proscribed soliciting is demonstrated not only by the gravity of the crimes specified but by the fact that the crime, unlike conspiracy, does not require the commission of any overt act. It is complete when the solicitation is made, and it is immaterial that the object of the solicitation is never consummated, or that no steps are taken toward its consummation." The California Legislature was concerned "not only with the prevention of the harm that would result should the inducements prove successful, but with protecting inhabitants of this state from being exposed to inducements to commit or join in the commission of the crimes specified" (45 Cal. 2d 311, supra, p. 314).

Another potential problem with the statute is that it includes an attempt to commit unlawful solicitation, i.e., solicits, etc., "or otherwise attempts to cause" the conduct. This has the same effect as the Model Penal Code, but the language there is different. The code spells the purpose out more specifically that: "It is immaterial * * * that the actor fails to communicate with the person he solicits to commit a crime if his conduct 67*67 was designed to effect such communication" (Model Penal Code, § 5.02, subd. [2], Tent. Draft No. 10, as analyzed by Wechsler-Jones-Korn, op. cit., p. 621). This could be an attempt in the classic sense and might be committed by a telephone message initiated but never delivered. The present Penal Law, stated in different language, has the same effect.

Appellants raise a point based on the reduplicative overplay of section 100.00 which is a "violation" and section 100.05, of which they have been convicted, a "class A misdemeanor".

Literally, the same act could fall within either section; and specifically the acts charged to appellants could come within either.

Section 100.00 relates to solicitation of another person to "engage in conduct constituting a crime" and section 100.05 to "engage in conduct constituting a felony".

Since a felony is a crime, whenever a charge is made based on solicitation to commit felony, it would come within both sections. It is not entirely clear why the statute was drawn this way. The commentators Denzer and McQuillan observe that although section 100.00 "embraces solicitation to commit any crime from a class B misdemeanor up to a class A felony, its principal application would normally be to those solicitation offenses not covered by the higher degrees" (op. cit., pp. 169-170).

Whatever may be said of the abstract merits of a choice of prosecution based on the same act between a higher or lesser degree of crime, it seems to have been decided that prosecution for the higher degree is permissible (People v. Bord, 243 N.Y. 595; see, also, People v. Bergerson, 17 N Y 2d 398, 401; People v. Hines, 284 N.Y. 93, 105).

It is argued that the information failed to advise defendants whether they were charged under section 100.00 or section 100.05 and that, since the grand larceny charged to have been solicited could come within 100.00, the information actually charged a violation; hence the three-Judge panel was without jurisdiction under section 40 of the New York City Criminal Court Act which provides for such a panel for trial of misdemeanors.

But the record shows no request by defendants for particularization; before the opening of the trial it was announced that 68*68 the charge was based on section 100.05 and no objection or motion for specification was made as to the section on which the prosecution was proceeding (People v. Bogdanoff, 254 N.Y. 16, 31; People v. Farson, 244 N.Y. 413; People v. Williams, 243 N.Y. 162, 165).

Moreover, defendants requested and had a preliminary hearing which is permissible under section 40 for misdemeanor cases where a three-Judge panel will try the case; and they proceeded to trial before the three-Judge panel without objection addressed to the part or the number of Judges participating.

The parts of the court and panels of Judges are all within the Criminal Court which has statutory jurisdiction ("The court and the judges thereof") of misdemeanors as well as offenses less than misdemeanor (§ 31). The information sufficiently charged a misdemeanor. The Criminal Court constituted by three Judges had jurisdiction.

Appellant Lubow argues that the tape recording of the conversations offered by the People was garbled and unintelligible and that the use of a transcript of it by the court, as it was being played, was improper. But there was no complaint by him at the trial that the tape was inaudible or unintelligible. It was sufficiently audible in large part, however, that the court stenographer, who had not heard it before, was able to transcribe most of it.

It was understandable enough to leave it for the decision of the Trial Judges as to whether it would be received (Monroe v. United States, 234 F.2d 49, 55). There was an express consent by counsel to allow the Judges to take the transcript as an aid without receiving the transcript into evidence, and it was offered for this limited purpose (People v. Feld, 305 N.Y. 322, 331-332).

Lubow also argues that there was no proper allocation of the respective persons speaking. But as to the tape itself, which was played for the court while the transcript was being used as an aid, counsel for Lubow at the trial agreed with the summary of the court that his objection to the recording was "not on the ground of continuity, not on the ground of identification, but on the ground * * * it interfered with his constitutional rights, and that it is cumulative".

69*69The judgment should be affirmed.

Judgment affirmed.

[1] Herbert Wechsler, Chief Reporter, Model Penal Code; William Kenneth Jones, Special Consultant, Model Penal Code, and Harold L. Korn, Special Consultant, Model Penal Code, The Treatment of Inchoate Crimes in the Model Penal Code of the American Law Institute: Attempt, Solicitation, and Conspiracy, 61 Col. L. Rev. 571, 622.

[2] Richard G. Denzer, Executive Director of the Commission on Revision of the Penal Law and Criminal Code, and Peter McQuillan, Counsel to the Commission, Practice Commentary to Penal Law, art. 100, McKinney's Cons. Laws of N. Y., Book 39, Penal Law, p. 169.

Edward J. Nowak, Public Defender of Monroe County, Rochester, for Christopher Allen and others, appellants.

Mark F. Cianca, Rochester, for Daniel Giallombardo, appellant.

Harris Beach & Wilcox, Rochester (Michael J. Masino of counsel), for Brandon McPhee, appellant.

Cerulli and Massare, Rochester (Matthew R. Lembke of counsel), for Emily Vega, appellant.

Howard R. Relin, District Attorney of Monroe County, Rochester (Thomas Rainbow Morse of counsel), for respondent.

Chief Judge KAYE and Judges LEVINE and CIPARICK concur with Judge SMITH; Judge BELLACOSA concurs in result in a separate opinion in which Judge WESLEY concurs.

380*380SMITH, J.

In these 54 criminal cases, combined for the purposes of this appeal, we consider what effect, if any, the exemption provision under Penal Law § 100.20 has on the prosecution of these similarly situated defendants. In each of the cases the trial court concluded that application of the exemption statute was required and, as a result, that dismissal in all cases was warranted. On appeal, that decision was reversed and the accusatory instruments were reinstated. The defendants were granted leave to appeal by several of the Judges of this Court, and, 381*381 upon our full consideration, we conclude, under the facts presented here, that the exemption statute must be applied. Any further prosecution of these criminal cases is therefore precluded.^[1]

Each of the cases is factually similar and identically charged. The arrests themselves resulted from a series of "reverse sting" operations conducted by the Rochester City Police Department during April of 1995. In the undercover operation, police officers posed as street marihuana dealers in an effort to lure "would-be" buyers into their sting. Rather than offer actual marihuana, the officers surreptitiously used only oregano. Notwithstanding, the undercover operation itself was a remarkable success.

Following each exchange of cash for oregano, the "would-be" buyer was arrested and charged with criminal solicitation in the fifth degree, a violation and not a crime under Penal Law § 100.00. Prior to trial, the defendants moved the Rochester City Court to dismiss the solicitation charges and the accusatory instruments. In support, the defendants argued that their conduct of attempting to purchase marihuana fell within the meaning of the Penal Law's solicitation exemption statute (Penal Law § 100.20). Therefore, the defendants urged that a legal impediment existed and barred their prosecution on charges of solicitation. The trial court agreed and dismissed the charges and the accusatory instruments.

On appeal, the County Court of Monroe County reversed and reinstated the charges. In ruling, County Court concluded that the defendants' conduct did not fall within the meaning of the solicitation exemption statute because their conduct was not of a kind which is "necessarily incidental" to the crime which they had intended to solicit. Thus, County Court ruled that application of the exemption was not required, and that the 54 criminal cases need not fail. We granted the defendants leave to appeal.

Penal Law § 100.00 reads as follows:

"A person is guilty of criminal solicitation in the fifth degree when, with intent that another person engage in conduct constituting a crime, he solicits, requests, commands, importunes or otherwise attempts to cause such other person to engage in such conduct."

382*382 Two of the elements of a violation of criminal solicitation in the fifth degree are: (1) the soliciting party must possess a specific intent that another person engage in conduct constituting a crime; and (2) there must be an affirmative solicitation, request, command or some other type of attempt aimed at causing such other person to commit such crime. Even where the elements of solicitation are properly pleaded and charged, by legislative command of Penal Law § 100.20, the initial inquiry of the court has not altogether come to an end.

Entitled "Criminal solicitation; exemption", Penal Law § 100.20 states:

"A person is not guilty of criminal solicitation when his solicitation constitutes conduct of a kind that is necessarily incidental to the commission of the crime solicited. When under such circumstances the solicitation constitutes an offense other than criminal solicitation which is related to but separate from the crime solicited, the actor is guilty of such related and separate offense only and not of criminal solicitation."

Thus, the statute requires that a court search beyond the four corners of the accusatory instrument and decide whether or not the charged conduct falls within reach of the exemption language. In cases where it is found that the exemption statute applies, a legal impediment to conviction exists. Where a related but separate crime is found to exist, prosecution of the related but separate crime may proceed to the fullest extent of the law. However, it is by falling into this class of legislatively exempted cases that the 54 prosecutions at issue in this case fail.

In the instant cases, the People urge that the solicitation exemption should not apply in that the defendants' conduct was not necessarily incidental to the commission of a criminal sale of marihuana. In support, the People direct our attention to People v Lubow (29 N.Y.2d 58), where it was stated that the criminal solicitation statutes were enacted to fill the gap created when conduct falls short of an attempt to commit a crime, but "`involves sufficient culpability to warrant criminal sanctions'" (People v Lubow, 29 NY2d, at 65). While such a pronouncement still rings as true today, this in no way serves to explain away the Legislature's enactment of the solicitation exemption statute. Moreover, such a pronouncement does not offer this Court a haven from our duty to see that the Legislature's 383*383 commands are properly carried out. In matters of statutory construction, "`legislative intent is "the great and controlling principle"', and our proper judicial function is to `discern and apply the will of the Legislature'" (Matter of Scotto v Dinkins, 85 N.Y.2d 209, 214, quoting Matter of Sutka v Conners, 73 N.Y.2d 395, 403).

Some lower courts have previously held that section 100.20 can be interpreted to apply only in circumstances where there exists a related but separately chargeable criminal offense (see, People v Barnes, 170 Misc 2d 979 [interpreting People v Manini, 79 N.Y.2d 561]; People v Spencer, 66 Misc 2d 658). Our review of the statute does not allow us to reach the same conclusion.

As the "would-be" buyers in these cases, the defendants are accused of soliciting the occurrence of a criminal sale of marihuana. In a typical criminal sale of marihuana, the existence of a willing buyer is a prerequisite to the commission of the completed crime. At a minimum, a criminal sale of marihuana requires the existence of some interrelationship as between the seller and another person (see, Penal Law §§ 221.00, 220.00 [1]). While it may be true that under Penal Law § 220.00 (1), liability for a criminal sale can arise upon a mere disposal, offer or agreement to sell, that Penal Law provision focuses upon the conduct of the seller. Here, conversely, the exemption statute commands the court to focus upon the conduct of the soliciting party. Upon examination of the conduct engaged in by these defendants, it is clear that a criminal sale of marihuana could not have occurred but for their direct participation. Therefore, their conduct was necessarily incidental to the commission of the completed crime.

In People v Manini (supra), this Court was faced with the interpretation of a similar Penal Law exemption statute, Penal Law § 20.10.^[2] Although Manini dealt with accomplice liability, as opposed to liability for solicitation, the exemption statute dealt with there is similar to the one here in that both statutes exempt from liability conduct which is "necessarily incidental" to the commission of the underlying crime or offense. There, interpreting Penal Law § 20.10, we concluded that in a prosecution 384*384 against a buyer for his or her criminal possession of the controlled substance bought, the "necessarily incidental" language of the exemption statute forbade the imposition of liability upon the seller as an accomplice to the possessory offenses of the buyer. We reasoned in Manini that "it is far more likely that the purchaser's possession resulted from a sale" (People v Manini, supra, at 571), and in these cases conclude that similar reasoning applies. Therefore, following the occurrence of a marihuana sale, the seller is criminally liable for the sale and the buyer is criminally liable for the resulting possession. By command of Penal Law § 100.20, however, neither is liable for the solicitation of the other.

It should be noted that in the "Marihuana Reform Act of 1977" (L 1977, ch 360), the Legislature excluded marihuana, except concentrated cannabis, from within the definition of controlled substances. Moreover, the Legislature's intent in its passage of the Act was to "reduce the penalties for possession and sale of marihuana and in particular to `decriminalize' the possession of a small amount of marihuana for personal use" (Donnino, Practice Commentaries, McKinney's Cons Laws of NY, Book 39, Penal Law art 221, at 84). Such a goal is inapposite to the exposure of smaller quantity purchasers, such as the ones we deal with here, to the harsher penalties imposed upon those convicted of criminal solicitation. By this, we do not mean to suggest that in a case where a third party is charged with soliciting the occurrence of a marihuana transaction between two other individuals, that the third party might not properly be subject to the penalties imposed for a criminal solicitation. But, under the facts of these cases, an illogical result would be achieved were we to hold that a person charged in a foiled attempt to purchase noncriminal amounts of marihuana (see, Penal Law § 221.05 et seq.) is subject to a harsher penalty than could be imposed upon one guilty of an actual purchase and possession of marihuana. If such a result was intended by the Legislature, the purchase of marihuana could have been criminalized in article 220 of the Penal Law. Or, in the alternative, the exemption statute under Penal Law § 100.20 could affirmatively compel the court to reach such a result.

Finally, we briefly address the defendants' remaining contentions that the 54 accusatory instruments suffer from a jurisdictional defect. The first of these claims rests upon the premise that the allegations in the accusatory instruments are averred in a wholly conclusory manner. Thus, the defendants claim that the accusatory instruments fail to meet the requirements 385*385 of the Criminal Procedure Law. Each of the 54 accusatory instruments is identical and, in substance, alleges:

"THAT YOUR COMPLAINANT IS A POLICE OFFICER EMPLOYED BY THE ROCHESTER POLICE DEPARTMENT, AND THAT ON THE ABOVE DATE, TIME AND AT THE ABOVE STATED LOCATION, THE ABOVE NAMED DEFENDANT(S), WITH INTENT THAT ANOTHER PERSON ENGAGE IN CONDUCT CONSTITUTING A CRIME, HE SOLICITED, REQUESTED, COMMANDED, IMPORTUNED OR OTHERWISE ATTEMPTED TO CAUSE SUCH OTHER PERSON TO ENGAGE IN SUCH CONDUCT, TO WIT: THE DEFENDANT DID SOLICIT AN UNDERCOVER POLICE OFFICER TO SELL THE DEFENDANT MARIHUANA."

In ruling on the merits of this same challenge, the trial court concluded that although the factual allegations in the accusatory instruments could be described as "bare boned", they were legally sufficient to support the solicitation charges. We agree. The factual allegations are sufficiently evidentiary in character and tend to support the Penal Law charges. Furthermore, the allegations establish reasonable cause to believe and a prima facie case that the defendants are guilty in their commission of the crime (see, CPL 100.15 [3]; 100.40 [1] [c]; People v Alejandro, 70 N.Y.2d 133). At the pleading stage, nothing more is required, and we thus reject the defendants' argument that the requirements of the Criminal Procedure Law have not been met.

We further reject the defendants' argument that an accusatory instrument charging the crime or offense of solicitation is required to contain a specifically enumerated Penal Law section or statutory degree of the crime charged as having been solicited. In the circumstances of this case, since any sale of marihuana is a crime, no further or more specific allegations were required. No "noncriminal" sale of marihuana could have been intended to occur. Thus, we find that the solicitation charges were satisfactorily pleaded, and thus conclude that the trial court was correct to deny the defendants' motions on these grounds.

Accordingly, the order of the County Court should be reversed, and the order of the Rochester City Court reinstated.

BELLACOSA, J. (concurring).

Respectfully, I concur only in the result on a narrower basis than the majority opinion adopts.

A reversal and dismissal of charges are warranted, in my 386*386 view, solely for the reason that any other outcome in these cases would produce an anomalous and absurd statutory interpretation of Penal Law §§ 100.00 and 100.20, that would be substantially at odds with the Legislature's directed goal in chapter 360 of the Laws of 1977 (The Marihuana Reform Act).

The majority's rationale seems to me to permit, theoretically and precedentially, a more expansive availability of the exemption provision (Penal Law § 100.20) in other criminal solicitation scenarios not presented by the uniform fact pattern of these cases. Since I conclude that a wider rationale is not necessary to the resolution of these cases and could produce unwarranted implications and outcomes in different future cases, I vote to reverse on the narrowest possible basis.

Order reversed, etc.

[1] Our decision today is not intended to affect any of the additional unrelated criminal charges which might be pending against these 54 individuals.

[2] Penal Law § 20.10 provides that "a person is not criminally liable for conduct of another person constituting an offense when his own conduct, though causing or aiding the commission of such offense, is of a kind that is necessarily incidental thereto. If such conduct constitutes a related but separate offense upon the part of the actor, he is liable for that offense only and not for the conduct or offense committed by the other person."