M. Ross, for appellant.
Fallek, for respondent.
order of the Appellate Division, insofar as appealed from,
should be affirmed. Viewing the evidence in the light most
favorable to the People (see People v Contes, 60
N.Y.2d 620, 621 ), we conclude that the evidence is
legally insufficient to support the conviction of conspiracy
in the second degree (Penal Law § 105.15) because
"there is [no] valid line of reasoning and permissible
inferences from which a rational jury could have found the
element of [agreement] proved beyond a reasonable
doubt" (People v Danielson, 9 N.Y.3d 342, 349
 [internal quotation marks omitted]; see generally
People v Bleakley, 69 N.Y.2d 490, 495 ).
elements of [a] conspiracy offense" generally may be
characterized as: "first, the specific intent that a
crime be performed; and second, an agreement with another
person to engage in or cause that crime to be performed"
(William C. Donnino, Practice Commentaries, McKinney's
Cons Laws of NY, Book 38, Penal Law § 105.00). Indeed,
"it is fundamental that [to] be convicted of
conspiracy" (People v Berkowitz, 50 N.Y.2d 333,
343 ) "the defendant [must] enter into a
criminal agreement with at least one other person"
(People v Treuber, 64 N.Y.2d 817, 818 ).
" [O]nce an illicit agreement is shown, the overt act of
any conspirator may be attributed to other conspirators to
establish the offense of conspiracy'"
(Berkowitz, 50 N.Y.2d at 341, quoting People v
McGee, 49 N.Y.2d 48, 57 ).
at the core of the People's case is evidence of
defendant's presence at various gang meetings at which
the crime intended was discussed by gang members other than
defendant. Under the circumstances of this case, to conclude
that defendant's presence at such gatherings alone was
sufficient to establish agreement to join a plot would be to
equate his passive act of "being present" with the
affirmative act of "agreeing" to engage in a
criminal conspiracy discussed at those assemblies. The law
does not contain a presumption of agreement based on sheer
presence at a meeting at which a conspiracy is discussed
(see Penal Law § 105.00 et seq.), and
we share the view of the federal courts that mere
"[k]nowledge of the existence and goals of a conspiracy
does not itself make one a coconspirator" (United
States v Ceballos, 340 F.3d 115');">340 F.3d 115, 124 [2d Cir 2003]
[internal quotation marks omitted]; see generally United
States v Shabani, 513 U.S. 10, 16  [providing that
"the criminal agreement itself is the actus reus"
concluding, we are careful not to fix boundaries with respect
to the circumstances that may give rise to an agreement.
Conspiracy is criminalized to "protect society from the
dangers of concerted criminal activity" (United
States v Feola, 420 U.S. 671, 693 ), the very
nature of which does not lend itself to transparency. Whereas
an agreement in a business context may be manifested with
precision, namely, through a contract, a correspondence, or
conspicuous dialogue, an agreement in the criminal realm
typically would result from more clandestine and ambiguous
we decline to define - and therefore to limit - the
circumstances giving rise to an agreement. On this record,
however, we agree with the Appellate Division that there is
no valid line of reasoning and permissible inferences from
which a rational jury could have found the element of
agreement beyond a reasonable doubt.
GARCIA, J. (dissenting)
a member of the Almighty Latin King Nation, was charged with
conspiracy in the second degree in connection with an arson
carried out by other gang members. His trial lasted three
months. Two gang members testified pursuant to cooperation
agreements. The intended victim of the arson attack - a
former member of the gang - also testified. The People
introduced evidence of defendant's knowledge of the
conspiracy and his agreement to cause or carry out its
criminal purpose. Defendant was convicted of conspiracy. I
disagree with the majority's conclusion that this
evidence, considered under the appropriate standard of
review, was legally insufficient to support the verdict.
verdict is legally sufficient when, viewing the facts in a
light most favorable to the People, there is a valid line of
reasoning and permissible inferences from which a rational
jury could have found the elements of the crime proved beyond
a reasonable doubt" (People v Danielson, 9
N.Y.3d 342, 349  [internal citations and quotations
omitted]). In a sufficiency review, a court must "
marshal competent facts most favorable to the People
and determine whether, as a matter of law, a jury could
logically conclude that the People sustained its burden of
proof" (id. [emphasis added]). In conspiracy
cases, "deference to the jury's findings is
especially important... because a conspiracy by its very
nature is a secretive operation, and it is a rare case where
all aspects of a conspiracy can be laid bare in court with
the precision of a surgeon's scalpel" (United
States v Applins, 637 F.3d 59, 76 [2d Cir 2011]
[internal citations and quotations omitted]).
York, "[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"
(Penal Law § 105.15). The core of the conspiracy is the
element of agreement, which will be found where there is a
"concrete and unambiguous expression of each actor's
intent to violate the law" (People v Caban, 5
N.Y.3d 143, 149  [internal citations and quotations
March 1, 2010, members of the Borough Park Homicide tribe
(BPH) of the Latin Kings firebombed the home of Juan Kuang.
Defendant did not participate in the March 1 attack but was
instead charged with conspiring to commit this act of arson.
It is undisputed that the defendant was a member of BPH. The
only issue is whether the evidence, viewed in a light most
favorable to the People, was sufficient ...