## Facts

- Multiple defendants were prosecuted in two related jury trials arising from a scheme to bribe Rochester Police Department vice-squad officers to protect illegal “numbers” gambling operations and target competitors.
- Under the prosecution’s theory in one trial, defendants arranged to pay Officers Gerald Luciano and Gustave J. D’Aprile to steer enforcement away from defendants’ associates while enforcing the law against rivals.
- The officers met repeatedly with participants while using recording equipment; discussions involved payments for protection and control of gambling operations within the community.
- In the trial involving Willie McGee and co-defendants Lionel Edwards and Robert Tolliver, the evidence supported that Edwards made the payments to the officers.
- As to McGee, the proof showed participation in the agreement to bribe but did not show that he delivered money or intentionally assisted the specific bribery transactions charged.
- The trial court instructed that McGee could be convicted of the substantive bribery counts solely because he was a conspirator.
- McGee, Edwards, and Tolliver were convicted of conspiracy in the third degree and 28 counts of bribery in the second degree; Quamina and Waters were convicted of conspiracy in the third degree and 10 counts of bribery in the second degree.
- The Appellate Division affirmed all convictions; the Court of Appeals granted leave and addressed McGee’s challenge separately.

## Issues

1. Whether a conspirator may be convicted of substantive bribery based solely on a co-conspirator’s commission of the bribes, without proof satisfying Penal Law § 20.00 accessorial liability for the specific bribery acts.
2. Whether New York recognizes a Pinkerton-type doctrine imposing vicarious liability on conspirators for substantive crimes committed by other conspirators in furtherance of the conspiracy.

## Decision

- The Court of Appeals modified as to McGee: it reversed the bribery convictions and dismissed the indictment on those bribery counts, while affirming his conspiracy conviction.
- The court affirmed the bribery and conspiracy convictions of Edwards, Tolliver, Quamina, and Waters.
- The court rejected a Pinkerton-style rule of automatic conspirator liability for substantive crimes committed by co-conspirators.
- The court held that the jury charge permitting McGee’s bribery convictions solely from conspirator status was erroneous because there was no proof of his complicity in the charged bribes under Penal Law § 20.00.

## Legal Principles

- Conspiracy punishes the illicit agreement plus an overt act; an overt act by one conspirator may be attributed to others to establish the conspiracy, even if the overt act is the object crime.
- Attribution of a co-conspirator’s acts to prove conspiracy does not, by itself, establish guilt for the substantive object offenses.
- Substantive liability for another’s conduct is governed by Penal Law § 20.00 and requires proof that the defendant, with the required mental state, solicited, requested, commanded, importuned, or intentionally aided the commission of the specific offense.
- Courts may not extend accessorial liability beyond the statutory grounds in § 20.00 by treating conspiracy alone as sufficient for the substantive offense.
- New York does not impose Pinkerton-style vicarious liability for substantive offenses committed by co-conspirators absent proof of § 20.00 participation in the particular crimes.

## Conclusion

The Court of Appeals held that participation in a conspiracy to bribe police officers does not automatically make a defendant guilty of the completed bribery acts committed by others; without evidence meeting Penal Law § 20.00 for the charged bribes, bribery convictions cannot rest on conspirator status alone, and Pinkerton-type vicarious liability is not part of New York law.


People v. McGee, 49 N.Y.2d 48 (N.Y. 1979)