(concurring). While I agree that the convictions of the defendants cannot stand, I do not subscribe to the general proposition advanced in the majority opinion to the effect that the exploitation of an independently instilled and pre-existing fear cannot be deemed extortion unless the person receiving payment was in particeps criminis with the person who made the threat or instilled the fear.
A person who seeks to capitalize upon an existing fear implanted by others may under some circumstances be just as guilty as if he had originally initiated the fear. It is no less a crime because he has seized the opportunity and taken advantage of a situation ready-made for his purposes. No further threat need be made nor new fear instilled if he is able to persuade his potential victim that he has the power to do the act feared. This is true although there is in fact no power, only pretense.
A plausible but unfounded profession of the power to injure may seem just as real to the victim as though it were true — and therefore might be just as effective a means of exacting payment. The existence or nonexistence of the power to carry out the threat, alone or in concert with others, is not decisive. The efficacy of a threat depends upon the state of mind of the victim. It is the exaction under the claim of power that constitutes the offense.
Exploitation of a vague or generalized fear of itself may not be enough. To constitute extortion, the victim must believe, rightly or wrongly, that the person demanding payment will be in a position to inflict harm. The key is control or the pretense of control. A refusal to act to remove the cause of the pre-existing fear is not extorsive unless the victim is made to believe that the creation of the fear-producing situation can be ascribed to or its discontinuance rests with the defendant or those acting with brm. Then, if payment is demanded for the manner in which that control will be asserted, the defendant is guilty of extortion.
It is the threatened misuse of power which is the essence of the crime. If a person has demanded payment to use his skill *436or influence to affect the power possessed by others, or to ameliorate a condition he did not create, he is not guilty of extortion. His ability to predict with some degree of accuracy what course others not under his control may take, to foresee the consequences of action or inaction, or to plead.the victim’s cause successfully with others is not proof that he himself could inflict or avert the harm.
While there was certainly in this case an exploitation by the defendants of an existing fear, the People failed to prove that they in fact made any threats to misuse their own power. McNamara was at most an intermediary who undertook to use Kerin’s money to attempt to influence others over whom he did not profess to have direct control, in an effort to persuade them to adopt the desired course of action. He assured Kerin that he would be successful in the attempt, but this was prediction, not a representation of control. McNamara made it very clear that before he could persuade the picketing unions to withdraw he would have to reimburse them for their organizational expenses. The District Attorney conceded in effect that there was no showing that the defendants had direct control over the pickets.
It was clear throughout the negotiations that the ultimate decision would be made by others, with some of the money being channeled to them by McNamara to influence the course of that decision. Not every refusal to act without payment is criminal. An expressed intention to remain indifferent or to refuse to act as intermediary unless payment is made cannot be equated with a threat affirmatively to inflict harm.
There may be circumstances under which extortion may be proven even though no explicit representation of control is made, or perhaps even when there is an explicit disavowal of control. However, when as here, there was no representation of control, when defendants expressly disavowed control and there was no belief on the part of the alleged victim that defendants exercised control, then the extorsive threat contemplated by the statute has not been proven.
The judgments of conviction should be reversed and the indictment dismissed.