Overt Act Essay

Conspiracy in the second degree requires that a person creates an agreement with one or more persons towards committing a crime and commits an overt act in furtherance of the crime. N.Y. Penal Law § 105.15. Statutes on conspiracy do not directly define what an overt act is but based on cases an overt act is up for interpretation by the jury. A jury is told that an overt act is needed to be an independent act that tends further the conspiracy, but the act does not have to be the crime itself. N.Y. Penal Law §§ 105.15, 105.20. Therefore, an overt act is the subjective factor that needs to be an independent act, whilst also carrying out the conspiracy. It does not need to be the actual objective of the crime. People v. Arroyo, 93 N.Y. 2d 990, …show more content…
Menache, 110 Misc.2d at 990. In Menache the defendant called his counterparts and discussed the payment of $5,000 to the unnamed school employees. Menache, 110 Misc.2d at 990. Hardinski’s had many telephone conversations with Dinkoff the content of which is generally unknown. However if one were to play devil’s advocate, and assume they were discussing killing the victim it still would not be an overt act. In Menache, the Court decided that agreements do not constitute conspiracy, but the overt act in furtherance of the crime does. Menache, 110 Misc.2d at 990. Telephone calls discussing the agreement of killing the victim does not constitute an overt act. Menache, 110 Misc.2d at 996. However, if Hardinski’s and Dinkoff’s last few telephone converation were about coming to New York to finally kill the victim, then that would be considered the overt act. Telephone conversation about committing the crime only shows that the conspiracy was continuing. Menache, 110 Misc.2d at 990. A jury following the reasoning of Menache would find that the telephone calls are not an overt act, unless the conversation revealed that Dinkoff came to New York to assist