Criminal Solicitation Example Cases

(1) In People v. Lubow (1971) 29 N.Y.2d 58 323 N.Y.S.2d 829, 272 N.E.2d 331 the New York court concluded that state's criminal solicitation statute included in the crime uncommunicated solicitations. The court noted the New York statute indicated one is guilty of solicitation if, with the intent another engage in criminal conduct, the defendant " 'solicits, requests, commands, importunes or otherwise attempts to cause such other person to engage in such conduct.' " (272 N.E.2d at p. 332.) The court noted New York's statute stems from the Model Penal Code. (Id. at p. 333.) The court pointed to that portion of the New York statute stating one is guilty of solicitation if he solicits another to engage in criminal conduct, " 'or otherwise attempts to cause' " such conduct. (Id. at p. 334.) The court found "this has the same effect as the Model Penal Code . . . ." (Ibid.) The court held, "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." (Id. at p. 331.) Thus, the New York court reached a different conclusion as to the meaning of the "otherwise attempts" language in the New York statute than did the Cotton court as to the meaning of identical language in the New Mexico statute. (2) In State v. Cotton (1990) 109 N.M. 769 790 P.2d 1050, the defendant was convicted of two counts of criminal solicitation. While he was incarcerated in New Mexico, he wrote two letters to his wife in Indiana suggesting that she warn their daughter not to testify against defendant on molestation charges and that she persuade their daughter to leave New Mexico and go to Indiana. Neither letter ever reached defendant's wife, both having landed in the hands of law enforcement. on appeal, the defendant claimed insufficient evidence to support the solicitation convictions because the letters never reached the intended recipient, the defendant's wife. (Id. at p. 1051.) The New Mexico Court of Appeal agreed. First, it noted that New Mexico's criminal solicitation statute "adopts in part, language defining the crime of solicitation as set out in the Model Penal Code promulgated by the American Law Institute." (State v. Cotton, supra, 790 P.2d at pp. 1052-1053.) The court distinguished New Mexico's statute from the Model Penal Code, noting that New Mexico's solicitation statute "specifically omits that portion of the Model Penal Code subsection declaring that an uncommunicated solicitation to commit a crime may constitute the offense of criminal solicitation. The latter omission, we conclude, indicates an implicit legislative intent that the offense of solicitation requires some form of actual communication from the defendant to either an intermediary or the person intended to be solicited, indicating the subject matter of the solicitation." (790 P.2d at p. 1053, fn. omitted.) Thus, by adopting in part the Model Penal Code section defining solicitation but omitting language from that section criminalizing uncommunicated solicitations, the New Mexico Legislature intended that the New Mexico statute not criminalize uncommunicated solicitations. (3) In State v. Lee (1991) 105 Or. App. 329 804 P.2d 1208, the Oregon Court of Appeal reached a similar result. There, the defendant, while in jail, wrote letters to an acquaintance in a juvenile center outlining plans to rob a store and residence. Authorities in the juvenile center intercepted the letters, which never reached the intended recipient. the defendant was convicted of solicitation to commit robbery. On appeal, he argued lack of evidence to sustain the conviction because the letters were never received by the intended recipient. Citing Cotton and apparently following its reasoning, the Oregon court noted Oregon's criminal solicitation statute 4 "was based, in part, on the Model Penal Code." ( State v. Lee, supra, 804 P.2d at p. 1210.) As did the court in Cotton, the Lee court noted the omission of Model Penal Code language criminalizing uncommunicated solicitations in Oregon's criminal solicitation statute. "Significantly, the legislature did not adopt the provision of the Model Penal Code that specifically provides that solicitation may be based on an incomplete communication." (State v. Lee, supra, 804 P.2d at p. 1210.) the court concluded a completed communication is required to prove the crime of solicitation. The court determined attempted solicitation is a necessarily included offense of solicitation and remanded for entry of judgment of conviction on that crime. (804 P.2d at pp. 1210-1211.)