Lead Opinion
Judgment, Supreme Court, Bronx County (John Moore, J.), rendered December 22, 1997, convicting defendant, after a jury trial, of conspiracy in the second degree, and sentencing him to a term of SVs to 25 years, affirmed.
Saxe and Gonzalez, JJ., concur in a memorandum by Gonzalez, J., as follows: In this prosecution of defendant for conspiring with others to murder a rival drug dealer, there are two primary issues on appeal. The first is whether the prosecution established a prima facie case of conspiracy by evidence independent of the hearsay declarations of two coconspirators sought to be introduced at trial. The second is whether the trial court’s failure to instruct the jury sua sponte that a prosecution witness was an аccomplice as a matter of law should be reviewed in the interest of justice, despite defense counsel’s explicit request that the witness’s accomplice status be submitted to the jury as a factual question.
We conclude that a prima facie case of conspiracy was established by independent evidence, thereby justifying admission of the coconspirators’ statements. In addition, although we find defendant’s jury charge claim is unpreserved, since the trial record does not provide undisputed evidence that the prosecution witness was an accomplice as a matter of law on the conspiracy charge, no legal basis existed for such an instruction and counsel was not ineffective in failing to request it. Accordingly, the judgment of conviction should be affirmed.
In March 1995, prosecution witness George Castro was a street-level drug dealer working for defendant Carlos Caban’s drug business on Fox Street, between 156th Street and
At defendant’s trial, Castro testified that on March 18, 1995, he was packaging crack for sale at a “stash house” located in apartment 4A at 777 Fox Street. Also present were defendant and his brother, Derrick Garcia, and at least two other drug sellers, Pello Torres and Melvin Butler. According to Castro, defendant announced that Ortiz “needed to be killed” because he was taking business away from him. Defendant offered to pay $5,000 for the murder, to whiсh Garcia responded “I’ll do it.” Torres then stated that he would provide a gun.
On cross-examination, Castro admitted that one day in mid-March 1995, he, Torres and Butler went to the corner of 156th and Fox Street, planning to kill Ortiz. Butler was armed with two guns and Castro acted as a look-out. However, the plan was aborted when the police arrived on the scene.
On June 1, 1995, at approximately 8:50 p.m., Ortiz was in a playground on Fox Street with his girlfriend’s four-year-old daughter and three of his dealers. At about 9:00 p.m., as Castro stood in front of 777 Fox Street, Torres approached him from the direction of 156th Street and said “It’s time.” Torres then entered 777 Fox Street, and shortly thereafter, Garcia exited the building with another man. Castro followed Garcia and the second man to thе playground; Castro stopped across the street in front of 725 Fox Street. From there, Castro observed Garcia walk over to Ortiz and begin arguing with him over defendant’s drug “spot.” As Ortiz tried to walk away, Garcia shot him multiple times “real close to his back,” resulting in Ortiz’s death.
On November 8, 1995, Castro was arrested for two drug sales. Realizing that he was “facing a lot of time,” he told a homicide detective that he had information about two homicides, including the Ortiz murder. Castro ultimately entered into a cooperation agreement with the Bronx District Attorney’s office whereby he was permitted to plead guilty to a misdemeanor and receive a sentence of three years’ probation in exchange for his testimony against defendant.
During defendant’s trial, defense counsel objected to the admission of Garcia’s statement “I’ll do it,” and Torres’s statements that he would procure the gun and “It’s time,” on hearsay grounds. The trial court admitted the statements conditionally, subject to the prosecution’s establishing a prima facie case of conspiracy without recourse to those statements.
During the charge conference, defense counsel requested that the court charge the jury that if they found that Castro was an
On appeal, defendant argues that the trial court erred in admitting, over his objection, the hearsay declarations of Garcia and Torres because the People failed to establish a prima facie case of conspiracy without recourse to those declarations. He contends that without the hearsay evidence, there is no evidence of an agreement to kill Ortiz and therefore the evidence was legally insufficient to establish his guilt of conspiracy. We disagree.
“A declaration by a coconspirator during the course and in furtherance of the conspiracy is admissible against another coconspirator as an exception to the hearsay rule (People v Rastelli,
A prima facie case of conspiracy requires evidence “that a person, with intent that conduct constituting a crime be performed, agrees with one or more persons to engage or cause the performance of such conduct (see, Penal Law § 105.00).” (People v Green,
In Bac Tran (
The Court of Appeals held that the nonhearsay evidence did not establish a prima facie case of conspiracy since, absent the tape recording, there was no evidence of a conspiratorial agreement between Tran and Chu (id. at 179-180). The Court further ruled that unlike People v Salko (
The circumstantial proof of an agreement is far stronger here than in Bac Tran (
Although defendant argues that there was never any admissible evidence establishing that Garcia or Torres accepted defendant’s offer to murder Ortiz for $5,000, overwhelming circumstantial evidence demonstrates just the opposite. Defendant’s own words establish a clear economic motive to have Ortiz killed. In addition, Garcia’s and Torres’s relationship to defendant as dealers in his drug business provide the strongest inference that they were acting on behalf of defendant (People v Elias,
Because the crucial evidence of defendant’s membership in the conspiracy is established by his own admissions (People v Salko,
Defendant next contends that the trial court erred in failing sua sponte to instruct the jury that the witness Castro was an accomplice as a matter of law on the conspiracy count, thereby requiring that his testimony be corroborated (see CPL 60.22
We find that defendant’s claim concerning the trial court’s accomplice charge is unpreserved for this Court’s review (see People v McDuffie,
“The accomplice corroboration rule provides that a ‘defendant may not be convicted of any offense upon the testimony of an accomplice unsupported by corroborative evidence tending to connect the defendant with the commission of such offense’ (CPL 60.22 [1])” (People v Besser,
Under this definition, a witness may be an accomplice for corroboration purposes even though such witness is not criminally liable for the offense being tried (see Penal Law § 20.00; People v Berger,
Where there is evidence at trial that a prosecution witness fits the statutory definition of an accomplice, a trial court has two options available: “[i]f the undisputed evidence establishes that a witness is an accomplice, the jury must be so instructed
Defendant argues that Castro’s admissions that he (Castro) was employed in defendant’s drug business, that he was present during the March 18 meeting when defendant announced the plan to murder Ortiz and that he acted as a look-out in the aborted attempt on Ortiz’s life, made him an accomplice as a matter of law to the charged conspiracy to murder Ortiz. None of these facts convince us that defendant was entitled to an instruction that Castro was an accomplice as a matter of law.
At trial, Castro admitted that one day in mid-March, he participated with Torres and Butler, the latter armed with two guns, in an unsuccessful attempt to shoot Ortiz. More specifically, Castro testified that this incident occurred “[t]oward the middle of March,” but the record is otherwise unclear as to the exact date. Therefore, the record does not conclusively establish whether Castro participated in the attempted murder of Ortiz after the March 18 meeting, when defendant initiated a conspiracy to kill Ortiz, or before it.
The timing is significant because if the attempted murder occurred prior to the formation of the conspiracy in this case, then Castro’s admissions would not constitute the necessary “undisputed trial evidence” that he participated in the charged conspiracy to murder Ortiz, or an offense based upon some of the same facts or conduct as the charged conspiracy (People v Basch,
Although a reasonable inference exists that Castro’s participation in the attempted murder of Ortiz occurred after March 18, the reasonable possibility that it occurred before that date was sufficient to deny him accomplice as a matter of law status (see
The cases cited by defendant are distinguishable, and dо not support his argument that Castro was an accomplice as a matter of law. In People v Cona (
Here, in contrast, Castro admitted to participating in an attempted murder of Ortiz on an unspecified date in March 1995; he did not, as defendant argues, admit to participation in the conspiracy to kill Ortiz hatched by defendant on March 18. Castro’s admissions are more akin to the situation where an accomplice witness admits to participation in criminal activity in some way related to the charged crimes, but where evidence is lacking concerning the witness’s participation in the charged crimes, or an offense based upon the same facts or conduct as the charged crimes (see People v Cobos,
People v Sweet (
The dissent’s assertion that the majority’s analysis is based upon speculation overlooks the standard for an accomplice as a matter of law instruction. That standard requires such an instruction only where “the undisputed evidence” establishes that the witness is an accomplice (People v Basch,
We also reject defendant’s argument that trial counsel was ineffective in failing to request an accomplice as a matter of law charge. In evaluating an ineffective assistance of counsel claim, “[t]he core of the inquiry is whether defendant received ‘meaningful representation.’ ” (People v Benevento,
To the extent we may evaluate counsel’s performance based on the trial record alone, we conclude that counsel’s failure to request an accomplice as a matter of law charge was not inconsistent with the strategic decisions of a “reasonably competent attorney” (People v Angelakos,
Nor, under the unique circumstances presented, can we
Defendant’s challenge to the prosecutor’s summation is without merit. While some of the prosecutor’s remarks would have been better left unsaid, the court sustained the defense objections to most of the challenged comments, and the remaining remarks were fair comment based on the evidence and a proper response to the defense summation (see People v Overlee,
The record does not establish that defendant’s sentence was based on any improper criteria and we perceive no basis for a reduction in sentence.
Tom, J.P., concurs in a separate memorandum as follows: As noted by Justice Gonzalez and conceded by Justice Rosenberger in his dissent, the challenge to the court’s charge regarding George Castro’s status as an accomplice was unpreserved for review. Under the circumstances of this case, I would decline to review in the interest of justice and would affirm on that basis without reaching the issues which otherwise divide our bench.
This case involves the trial of defendant, who was the head of
The record makes amply clear that defendant, through counsel, emphatically requested that the court charge the jury that they could consider whether Castro was an accomplice as a matter of fact. On the first day of the charge conference, there was extensive colloquy on the extent and nature of Castro’s participation in the various events that Justice Gonzalez’s opinion sets forth and how the evidence affected proof of the conspiracy chаrge. Counsel argued that Castro had admitted plotting with others to kill Ortiz on at least one occasion and that the “jury can draw a conclusion although he denied it that he was involved in the June 1st [sic], but the jury can draw a conclusion that in fact he was part of the conspiracy.” The court, to clarify defendant’s charging request, then asked “[s]o it’s your position that I should submit a charge to the jury that they could assess as an issue of fact whether or not George Castro was a coconspirator and then of course the charge concerning what corroboration requirements if they so choose to find him a coconspirator was necessary. Is that your request?” Counsel answered affirmatively. The prosecutor objected. The court invited both parties to submit case law. When reconvening the following day, the court noted that “the defense . . . has conceded that this court should not be instructing this as a matter of law.” The prosecutor argued that there was no evidence that Castro was an accomplice to the conspiracy being charged. Defense counsel responded that in the event of a dispute “as to the nature of a witness’s participation and obviously we have a dispute here and it can be inferred both ways, it’s up to the jury. It’s properly left up to the jury’s hands to make a factual determination whether that particular witness is an accomplice or not an accomplice. So I think that based upon the record we have here that the court should charge it. . . . So it’s up to the jury at this point to make that determination.” The court recited some of the relevant testimony that could support an
Moreover, with regard to whether Castro’s participation in one aborted killing should be conflated with the charged conspiracy regarding the later successful killing, a close reading of the record, again, militates against reading into the record evidеnce that is not there in order to reverse. When Castro testified regarding his participation in the mid-March aborted killing, defendant had ample opportunity to try to achieve greater clarity as to the sequence of that crime and the March 18 discussion from which the conspiracy sprang. This was not done and as Justice Gonzalez notes, that could well have been a strategic decision, in that counsel possibly did not want to get an answer that eliminated his room to maneuver when turning to the issue of accomplice corroboration. In any event, I am reluctant to read into the silence of the record on this seemingly critical factor any speculation about the connection between the events for purposes of proving the conspiracy. We are left with defendant’s strategic choices undertaken at trial, and a trial record that reflected those options, and the result of the jury’s findings as it pertained to the admissibility of Castro’s testimony regarding the conspiracy, and I would not grant defendant the opportunity on appeal to basically change his position in reliance on those very ambiguities in the trial record. In short, defendant should not be granted interest of justice review of an issue he rigorously requested to be given to the jury but now finds the jury verdict not to his liking.
Andrias and Rosenberger, JJ, dissent separately in memoranda as follows:
Notes
. Garcia was originally a codefendant in the same indictment as defendant. However, his case was sеvered and he was tried separately. He was acquitted of all charges.
. Defendant makes no argument that the People failed to make a prima facie showing of the “overt act” element of the crime of conspiracy (see Penal Law § 105.20).
. Defendant did not object to the admission of Castro’s testimony concerning the substance of the preshooting conversation between Garcia and Ortiz (see CPL 470.05 [2]).
. During the charge conference, the court noted that “[t]he defense in this case has conceded that this court should not he instructing [the accomplice issue] as a matter of law,” and defense counsel did not contradict this assertion.
. Notably, in discussing the timing of Castro’s participation in the attempted murder of Ortiz, the trial court noted that “[Castro] indicated [that the attempted murder occurred] on a prior occasion sometime in March and we don’t know whether it’s before or after the conspiracy was formed on March 18th.”
Dissenting Opinion
I agree with Justice Rosenberger that
Dissenting Opinion
Hearsay declarations by a coconspirator made during the course and in furtherance of an alleged conspiracy may not be considered by a jury unless the prosecution has established a prima facie case of the alleged conspiracy without regard to the hearsay (People v Rastelli,
The “independent” evidence of defendant’s participation in the murder conspiracy on which the majority relies consists of defendant’s “own admissions” and “strong circumstantial proof.” However, as defendant did not testify, nor did he confess to participating in any conspiracy, there were no “admissions” by defendant. The only evidence of the alleged conspiracy— including the circumstantial “proof” cited by the majority— came from Castro’s testimony as to the events allegedly leading up to the murder of Ortiz, events in which, according to Castro’s own testimony, he participated.
The majority speculates that, because the record is silent as to precisely when in March the attempted murder occurred, it might have taken place before the March 18 meeting at which the murder conspiracy was hatched, and, if so, that the attempted murder was part of a separate and distinct conspiracy. Under this scenario, Castro may have been an accomplice in the attempted murder conspiracy but not in the conspiracy to commit murder, and, therefore, defendant was not entitled to an accomplice-in-law instruction to the jury. Nothing in the record supports such a fanciful construct.
The undisputed evidence in this case—the testimony of George Castro, the single witness to the alleged conspiracy—
A witness “may be an accomplice for corroboration purposes if he or she may reasonably be considered to have participated in an offense based upon some of the same facts or conduct which make up the offense on trial” (People v Berger, 52 NY2d 214, 219 [1981]; see also CPL 60.22 [2]). If the undisputed evidence establishes that a witness is an accomplice in the conspiracy charged, the witness is an accomplice as a matter of law (see People v Basch,
Although the error is not preserved, the failure of the court to give an accomplice-in-law instruction constitutes a fundamental error of law warranting interest-of-justice review. Such fundamental error, even if not of constitutional dimension, requires reversal of the judgment of conviction under the standards enunciated by the Court of Appeals in People v Crimmins (
In this case, the only evidence of defendant’s guilt was the uncorroborated testimony of an accomplice to the alleged crime. As a matter of law, that testimony is insufficient to convict.
Because there was no independent evidence of defendant’s guilt, the judgment of conviction should be reversed and the indictment dismissed.