People v. Berkowitz , 411 N.Y.S.2d 896 ( 1979 )

— Judgment of conviction of conspiracy, first degree, rendered May 19, 1977, Supreme Court, New York County, reversed, on the law, and the indictment dismissed. This case is reminiscent of People v Salko (60 AD2d 307), in that, although there is a great deal of smoke in the form of surmise, suspicion and speculation, there is no solid evidence connecting defendant with the conspiracy of which he stands convicted. The evidence against defendant was entirely circumstantial, which factor is not in itself an obstacle to its use as a basis for operative fact. It did not, however, comply with standard tests for its use. "Although conspiracy can be proven by circumstantial evidence, the inference to be drawn from such evidence must he 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.)” (Salko, supra, p 312, Lupiano, J.) "Generally, an admission by one defendant is not admissible against a codefendant. (People v Payne, 35 NY2d 22, 27; Richardson Evidence [10th ed], § 232, p 206.) However, it has long been the law in New York that the acts and declarations of one coconspirator which occur while the conspiracy is in progress and which are in furtherance of the common scheme are admissible and are provable as to all other coconspirators as part of the res gestae and as a recognized' exception to the hearsay rule. (People v Rastelli, 37 NY2d 240, 244.) A party, seeking to fall within this coconspirator exception to the hearsay rule, must come forward with prima facie evidence that there is a conspiracy and that a particular defendant is a coconspirator. (Voisin v Commercial Mut. Ins. Co., 60 App Div 139, 149.) A conspiracy may be established by circumstantial evidence (People v Van Tassel, 156 NY 561, 564), but the declarations of an alleged coconspirator cannot be received for the purpose of proving the conspiracy (Lent v Shear, 160 NY 462, 468).” (Salko, supra, pp 309-310, Murphy, P. J.) Thus, in this case, the statements of alleged coconspirator Alvarez are not to be used against this defendant-appellant. It was never established that a conspiracy existed between defendant and his "girl friend” Alvarez to engage in traffic in contraband. Unfortunately, respondent’s presentation on this score consists of a "bootstrap” argument to the effect that Alvarez made statements implicating defendant in a conspiracy with her; since they were coconspirators, the statements made by her and the acts performed by her were in furtherance of the conspiracy and binding on him. The most solid pieces of nonhearsay evidence linking the two were his presence in her apartment on December 13 and the fact that, when arrested, they gave the same address. Both these pieces of evidence were equivocal. And, unless one swallows whole the police officer’s "interpretation” of his recorded phone conversation with defendant, there is no other connecting evidence. Of the six overt acts stated in the indictment to have been in furtherance of the conspiracy, four were alleged to have been performed by Alvarez; as to the other two, said to have been performed by defendant, the evidence is at best equivocal. The evidence involving defendant, given by an undercover policeman, stated briefly, was that defendant was introduced to the officer by an informant, never produced as a witness,^* and that an appointment was set up for an unstated purpose, both the time and place of which were changed by phone conversations between the informant and defendant. The content as well as the identity of the other participant in the conversation were pure hearsay in the circumstances. In any event, the officer and the informant encountered Alvarez on the street, and went, at her suggestion, to her apartment, where the three waited in the living room. Any statement by Alvarez concerning defendant, in his absence, would also have been hearsay, and there was nothing of consequence, either by him or her, said later. Defendant entered, saw and was seen by the officer, and, without comment, went to a rear room where Alvarez joined him. The two then called in the informant. Defendant was not seen further that day, but Alvarez emerged shortly with a package, later found to contain cocaine, which she gave to the officer and then returned to the bedroom. She soon came out, and stated the price. There was no evidence that defendant had done or said anything to incriminate him. The other involvement of defendant with the officer witness was a telephone conversation between them, taped by the officer, which is replete with vague references to a meeting for luncheon to be had between them, and talk about the attempts of both participants to communicate with either Alvarez or the informant. Although the officer was permitted to "interpret” the conversation, carried on in what the prosecutor terms "drug jargon,” it is obvious that its content, as recorded, is as consistent with innocence as with guilt. Thus, no prima facie of conspiracy having been established, defendant was entitled to acquittal. Concur — Murphy, P. J., Evans and Markewich, JJ.

* Alvarez’ conviction at a separate trial, not of conspiracy but of sale of contraband, was reversed (65 AD2d 146) because of failure to produce the informant as a witness at her trial. These factors play no part in the disposition here.