Criminal Law Blog

Client: “I didn’t mean to do something to hurt someone, and I swear I didn’t know my co-defendant had a gun…we were just out to have fun, and we thought it would be funny to grab some stuff from a store and have the owner chase us, but he had a bat, and that’s when my co-D shot him to keep him from hitting us…”

Attorney: “Let’s talk about conspiracy and accomplice liability.”

In its simplest of terms under the New Jersey law, Conspiracy is an agreement between two or more persons to commit an unlawful act. In essence, anything that is a reasonable and foreseeable consequence of the actions that any co-conspirator takes, can result in you facing the same penalties as if you had committed the acts yourself. Accomplice liability, is you being held responsible for your own conduct and/or the conduct of another for whom you are legally accountable. Another way to think of it is that the defense of ‘Not Me’ only works with Mom, not with the law.

Conspiracy is a specific statute that you can be charged with, separate and in addition to the crimes committed as part of the conspiracy. If the conspiracy was to commit a robbery with a gun, you and your co-conspirators can be charged with Robbery, Possession of the gun, Possession of the Gun for an Unlawful Purpose, and Conspiracy. Accomplice Liability is a specific statute that assigns the responsibility of your conduct to you, as well as the responsibility for the conduct of a co-conspirator. It also assigns you responsibility for the conduct of others you are legally accountable for, such as someone you solicit to commit a crime; where you have a legal duty to prevent the crime; or, where you aid the person who has committed, or is committing, the crime.

In the scenario laid out in the picture above, you would also be responsible for the felony murder of the store owner if he died from the gunshot, or the aggravated assault if he lived. You would be facing a lengthy period of incarceration (10-20 years in prison on each of several of the counts), and a lengthy period of parole ineligibility for the armed robbery and murder/aggravated assault to the store owner. In addition, it is almost certain (like certain in that the sun rises in the East) that the State will request and the Court impose, a consecutive sentence on at least one of the counts. Think 10-20 years (+) 10-20 years, and you start to get the idea. And you didn’t even know the other person had a gun. Wrong place. Wrong time.

What you do, matters. What other people do also matters when you are accountable for, or responsible for, their actions. So how do you dodge this ‘runaway freight train’ where you are going to get hammered at sentencing for something you did not actually do? Start building an affirmative defense to the actions of your co-defendant. For example, yes, you agreed to commit the shoplifting, but when your co defendant pulled out the gun you tried to stop him from using it. As another example, when the co-defendant went to enter the store you warned the store owner of what the co-D intended to do. In essence you have to terminate your involvement, and thereby your complicity, by voluntarily renouncing your involvement. The burden to do this is on you. To assert this defense once you are charged, you will need to present the defense and prove it by at least a preponderance of the evidence, which may result in you giving testimony against your co defendant. Otherwise, you may very well end up serving a long prison sentence for something somebody else actually did.