We now consider whether the Appellate Division properly affirmed the trial court’s denial of defendants James’s and Likisha’s motions to dismiss the conspiracy count of the indictment in Jones. A defendant “is guilty of conspiracy to commit a crime if with the purpose of promoting or facilitating its commission” he or she “agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime.” Conspiracy is a continuing course of conduct” that terminates, for statute of limitations purposes, when (1) “the crime or crimes which are its object are committed,” or (2) “the agreement that they be committed is abandoned by the defendant and by those with whom he conspired.” To convict a defendant of “conspiracy to commit a crime other than a crime of the first or second degree,” “an overt act in pursuance of such conspiracy” must be proven “to have been done by him or by a person with whom he conspired.” The State is not confined to overt acts alleged in the indictment and may later prove additional overt acts.
In Grunewald, the United States Supreme Court concluded that prosecutors cannot “extend the life of a conspiracy indefinitely” by inferring a conspiracy to conceal “from mere overt acts of concealment.” 353 U.S. at 402. Specifically, the Supreme Court held that after the central criminal purposes of a conspiracy have been attained, a subsidiary conspiracy to conceal may not be implied from circumstantial evidence showing merely that the conspiracy was kept a secret and that the conspirators took care to cover up their crime in order to escape detection and punishment.
The Supreme Court stressed a “vital distinction” “between acts of concealment done in furtherance of the main criminal objectives of the conspiracy,” which extend the conspiracy and toll the statute of limitations, and “acts of concealment done after these central objectives have been attained, for the purpose only of covering up after the crime.” Id. at 405. In Grunewald, the Supreme Court ultimately reversed the defendants’ convictions for conspiracy to defraud the United States because the Government failed to “show anything like an express original agreement among the conspirators to continue to act in concert in order to cover up, for their own self-protection, traces of the crime after its commission.” Id. at 404, 424.
The “vital distinction” between acts of concealment done in furtherance of the main criminal objectives of the conspiracy” and “acts of concealment done after these central objectives have been attained is a necessary one. Otherwise, the prosecution would almost always be able to undermine a statute of limitations by pointing to the fact that the accused kept their alleged criminal acts a secret.
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