The conviction of conspiracy to bribe a witness and for bribery cannot stand on the facts herein. The facts do not support the necessary predicate that Salko and Lindenhauer entered into an agreement to bribe Galvin. Because of Lindenhauer’s death, the evidence to support such a finding had to come through Galvin’s testimony. There was, therefore, no direct evidence of an illicit agreement. However, the District Attorney sought to establish that agreement through circumstantial evidence, namely, Galvin’s testimony as to his separate conversations with Lindenhauer and Salko supported by the recordings and Lindenhauer’s retrieved notes, plus such admissions as were attributed to Salko.
Although conspiracy can be proven by circumstantial evidence, the inference to be drawn from such evidence must be conclusive. There are numerous authorities to support the proposition. "In such circumstances, the facts from which the inferences are to be drawn must be established by direct proof: the inferences may not be based upon conjecture, supposition, suggestion, speculation or upon other inferences; the conclusion sought must flow naturally from the proven facts and be consistent with them all; the proven facts must exclude to a moral certainty every hypothesis except that of guilt or of the offense charged and not alone must all the proven facts be consistent with and point to guilt, but they must be inconsistent with innocence [citing cases].” (People v Weiss, 290 NY 160, 163.)
The jury was asked to find as a fact from the circumstances herein that Salko entered into an agreement with Lindenhauer to bribe Galvin. While it might be said that Salko "facilitated the crime” (Penal Law, art 115), such evidence does not possess all the ingredients necessary to establish an "agreement” between Salko and Lindenhauer to bribe a witness.
If conspiracy counts are dismissed, then, as Presiding Justice Murphy states, the bribery counts must fall. In my view, the conspiracy counts and bribery counts are inextricably *313interwoven. Putting it differently, had the conspiracy been established, the jury could properly consider Galvin’s conversations and activities with Lindenhauer as bearing on the question of Salko’s guilt or innocence with respect to each and every count charged in the indictment, but since the conspiracy conviction must be reversed, it is necessary to re-examine the bribery counts and measure the sufficiency of each of the convictions thereunder in terms of the evidence which could then properly be considered by the jury.
As to the bribery counts: Galvin testified that he was offered money by Lindenhauer on September 7; that he received $1,500 from Lindenhauer on September 10. In these circumstances, the crimes of bribery and bribing a witness would be, as Justice Silverman correctly points out, a continuing one, because Lindenhauer would have been looking for favorable testimony from Galvin so as to secure Ware’s acquittal. In those circumstances, there would be no question that Salko’s conversation with Galvin on September 7 at Lindenhauer’s request could be properly construed as accessorial conduct under section 20.00 of the Penal Law. Salko could then have been found to have intended to assist Lindenhauer in the commission of the said crimes.
But the dismissal of the conspiracy counts compels us to disregard Galvin’s testimony, vis-á-vis Lindenhauer, the recordings and other tangible evidence, and to examine the question of Salko’s guilt of the bribery counts solely on the basis of Salko’s conversations with Galvin and such statements as were made by Salko to Assistant District Attorney Rogers.
With the evidence so limited, I am unable to say that the "corpus” of the crimes of bribery and bribing a witness were established. Certainly the mere conversations between Galvin and Salko do not go that far. Beyond any doubt on this evidence, Salko was guilty of grossly unprofessional conduct but we may not extend the sanctions of criminal law to cover every charge of unprofessional behavior.