Judgement Supreme Court, New York County (Harold Rothwax, J.), rendered October 28, 1987, which convicted defendant, after jury trial, of conspiracy in the second degree and assault in the first degree and sentenced him to concurrent prison terms of 8 Vs to 25 years and 5 to 15 years, respectively, unanimously affirmed.
Complainant LaQuine Simmons lived in an apartment building on West 48th Street in Manhattan. The defendant was a drug dealer who lived in the building in an apartment next door to Simmons. Other drug dealers resided in other apartments in the building, and defendant and the other dealers often sold drugs on the street in front of the premises. Beginning in January 1986, Simmons organized other law-abiding tenants of the building in an attempt to rid the building of drug dealers with the aid of the police, by attempting to evict them, and other measures.
Throughout the summer of 1986 there were many incidents involving hostile confrontations between Simmons and the defendant. On one occasion, in August, defendant threatened Simmons with a knife. In response, Simmons reported the incident to the police, who arrested the defendant for menacing, and she also obtained an order of protection.
On three separate occasions defendant offered a fellow drug dealer, Carlos Turriago, $5,000 to kill Simmons and mentioned
In the early morning hours after the shooting, at approximately 2:00 or 3:00 a.m., Ortiz knocked on the door of a neighbor, one Santiago, and asked if he had seen defendant. Santiago told him “no” and then he heard Ortiz knock on the door of defendant’s apartment and state, “If you don’t want to open the door, I know you’re there, you don’t want to open the door, I want my fucking money.” Ortiz then left the building, and as he came downstairs said to Santiago "You haven’t seen me.
The next day outside the building, Ortiz told Turriago that he was looking for defendant because defendant owed him $5,000. Ortiz then began shouting in the direction of the window of defendant’s apartment that he would kill defendant if he did not get his money.
On this appeal, defendant claims that it was improper to admit into evidence the hearsay statements made by Ortiz. However, testimony concerning the declarations of one conspirator, spoken during the course of and in furtherance of a conspiracy, is admissible against coconspirators, as an exception to the hearsay rule. (E.g., People v Ardito,
Here, the independent evidence established a prima facie case of conspiracy in the first instance. Defendant had a clear motive to harm Simmons and made it clear that he wanted her killed. He told two other witnesses that he would murder Simmons or have someone else do it. On several occasions defendant offered Turriago $5,000 to kill Simmons, and later, Ortiz offered Mateo the same amount of money to shoot someone, the reasonable inference being that Ortiz was acting
Defendant also contends that the trial court erroneously permitted the jurors to take notes during the supplemental charge. During its deliberations, the jury sent the court a note asking to hear again the charges regarding conspiracy and circumstantial evidence, and inquired if notes could be taken. Before answering the note, the Trial Judge said: "In this situation I have no problem with you taking notes. I told you at the outset of the case I didn’t want you to take notes while testimony was coming in. But I have no problem with you taking notes as I speak to you.” Defendant did not object. The court then gave the substantive supplemental instructions requested and the jury resumed deliberations. There was no further reference to note taking and there is no evidence in the record that any juror actually took notes. In the absence of any showing that any notes were in fact taken, it is unnecessary to reach this unpreserved issue. Concur—Rosenberger, J. P., Kassal, Ellerin, Smith and Rubin, JJ.