delivered the opinion of the court:
A jury convicted defendants Frank Vincent, also known as Stanley Miller, and Richard Jenkot of calculated drug conspiracy and conspiracy for their trafficking in a controlled substance, phencyclidine (PCP). Vincent was sentenced to the penitentiary for 10 to 30 years for calculated drug conspiracy and 6 to 18 years for conspiracy, the sentences to run concurrently. Jenkot received a 10- to 30-year penitentiary sentence for calculated drug conspiracy and a 5- to 15-year sentence for conspiracy, also to run concurrently. A third co-conspirator, Edward Vaisvilas, pled guilty and testified for the State in exchange for the State’s recommendation that he be given a 2- to 6-year penitentiary sentence. Vincent and Jenkot appeal, assigning as errors the admission of certain prejudicial evidence; giving of an erroneous instruction to the jury; restrictions placed upon defense counsel in closing argument; failure of proof as to Jenkot’s involvement in the conspiracy; and several sentencing errors. For the reasons which will later appear, we affirm in part and reverse in part, and vacate the conspiracy sentences imposed on Vincent and Jenkot.
The State’s principal witness at trial was Sergeant Terry McCue of the Chicago Police Department. McCue testified that he was assigned in early 1976 to the Area 3 Youth Division and worked undercover on narcotics cases. He first saw Jenkot in a West Grand Avenue tavern on January 28, 1976. He told Jenkot that he was interested in buying “quantities” of PCP. Jenkot told McCue he had access to “multiple ounces of PCP and almost any kind of drug” McCue might want, and gave McCue his telephone number. On February 12,1976 McCue saw Jenkot in the same tavern in company with Edward Vaisvilas. McCue offered to purchase two ounces of PCP from Jenkot, which the latter said he could “do,” for $1,400. Vaisvilas added that the people he dealt with could “do large quantities.” McCue responded that “his guy” could buy a minimum of one-quarter to one-half pound of PCP.
Twice thereafter McCue contacted Jenkot and offered to buy one ounce of PCP. The first time, on February 13, Vaisvilas met McCue and sold him one ounce of PCP for $700, outside a restaurant at Belmont and Western Avenues. On March 2, Jenkot himself sold McCue an ounce of PCP for $700 at Cicero Avenue and 22nd Place in Cicero, Illinois. On
On March 23, McCue called Vaisvilas for a meeting and he, DEA 1 Special Agent Pat Collins, Jenkot and Vaisvilas met, ultimately going to the basement premises of a vault company located in a downtown building. There McCue removed a safety deposit box containing DEA money amounting to $50,000 in $100 bills. McCue told Jenkot and Vaisvilas that the $50,000 was his “guy’s” money and that they were ready to “go.” Vaisvilas responded, “dynamite.” Jenkot then asked McCue for $500. McCue responded that Jenkot would be taken care of later. Vaisvilas agreed to sell four pounds of PCP in one-half-pound transactions, but McCue wanted to complete the sale in two steps. They parted with Vaisvilas telling McCue he would contact him after talking to his “guy.” On March 29, McCue called Vaisvilas and said he was ready for a four-pound PCP buy. Vaisvilas took his telephone number and 20 minutes later a man identifying himself as “Sonny” called McCue at that number. McCue recognized the voice as that of the man he had spoken with during the conference call on March 7. Sonny said they “would do eight ounces a time up to four pounds” and that McCue “would call the shots.” The deal was to be made through Vaisvilas, but Sonny would be close by. That evening, Jenkot called McCue and asked when the deal “was going down,” and McCue responded the next day.
On the morning of March 30, McCue continued, he called Vaisvilas, who said they would “do a pound,” an amount he said he thought had been worked out between McCue and Sonny. At 11 a.m., Vaisvilas called McCue and told him his “guy” was on his way in from McHenry and for McCue to get the money and meet at Vaisvilas’ apartment. McCue later asked Vaisvilas to call Sonny for instructions as to the exact amount of money he was to bring. Vaisvilas agreed and asked McCue not to tell
Vaisvilas and McCue left the apartment, according to McCue, entered the former’s white van and were followed by Collins and Labik in McCue’s undercover vehicle. They drove to the Eisenhower Expressway, then west to the Central Avenue exit ramp where they stopped. McCue alighted from the van telling Vaisvilas that he would wait in his car with the others on the opposite side of the expressway. Vaisvilas drove off in the van. After 15 or 20 minutes, he returned to where McCue was waiting with the others in the undercover vehicle. McCue left his car and walked toward the van. Vaisvilas showed him a cardboard box filled with plastic bags containing crystalline substances later identified as PCP. Vaisvilas removed the cardboard box from the van and, together with McCue, began walking back toward the undercover car. As they walked, a silver, four-door Lincoln Continental passed by, moving slowly, and Vaisvilas told McCue, “[t]here’s my guy now. I got to meet him when I get the other half of the money.” McCue identified the lone occupant in the Lincoln as defendant Vincent.
McCue and Vaisvilas then got into the undercover vehicle with the box of narcotics. McCue announced his office and placed Vaisvilas under arrest. A search failed to turn up the $5,000 given to Vaisvilas either on his person or in his van. McCue then drove the van onto the Eisenhower Expressway eastbound toward the Loop. At a point between 4900 and 4800 west, he stopped and observed other people stopped and coming out of their cars, citizens whose identities he did not know, running around and picking up $100 bills from the highway. He saw Chicago Police and DEA officers in the vicinity retrieving money. He observed passengers and crew getting off a CTA train which had stopped nearby, pick up some money, and jump back on the train which then left. He got back in the van and proceeded to the Federal Building where he again saw defendant Vincent under arrest. Agents Collins and Labik testified in substantial corroboration of so much of the evidence given by McCue as involved them.
Chicago Police Officer Lou Alvizu testified that he was assigned to
Chicago Police Sergeant Bruce Carter, on the same assignment, testified that he also arrived at the Eisenhower Expressway scene in time to see Vincent throw money out of his automobile window. He assisted in Vincent’s arrest along with his partner, Officer Marilyn Bucey. When Carter told Vincent that he (Carter) could not have thrown the $5,000 out of the window, Vincent stated that it was the “hardest decision he ever had to make.”
DEA Special Agent William Morley, on surveillance assignment on March 30, testified that he saw Vaisvilas carry a brown package from a stiver Lincoln Continental to a white van in the vicinity of Central and Roosevelt Road. Both vehicles then proceeded to the Eisenhower Expressway at Central. The white van stopped near the undercover police vehicle. The Lincoln proceeded at high speeds onto the Eisenhower Expressway. Morley observed Vincent release a quantity of bills from his car. Morley participated in gathering the money from the expressway with other officers. In all, they recovered thirty-four $100 bills, which he returned to his office. He compared the serial numbers of the recovered bills with the list of prerecorded $100 bills given to McCue for purchase of the PCP, and all 34 recovered bills had been so recorded.
DEA Special Agent Steven Casteel, equipped with binoculars and assigned to surveillance from a helicopter on March 30, observed the silver Lincoln Continental intermittently that day. He stated the he first saw the automobile in the morning near U.S. Highway 12 at Volo, Illinois; next as it proceeded southward on Route 12 to Cicero, Illinois; thereafter as it entered Roosevelt Road and was parked in the 5700 west block; and later, when it parked further east on Roosevelt near Central Avenue, next to a white van. Casteel observed a person alight from the van and enter the Lincoln on the passenger side. He saw the Lincoln proceed down several side streets and then stop in an alley. The driver, who wore a multicolored T-shirt, left the Lincoln, opened the automobile trunk, removed a small brown object therefrom, and reentered the Lincoln. The
Chicago Police Officer Frank Geraci, assigned to surveillance duty on March 30, testified that he saw Vincent emerge from a house in Elk Grove Village, together with a man and a woman. Vincent placed a cardboard package in the trunk of his Lincoln and drove to the vicinity of West Roosevelt Road, dropping off the male passenger at 58th Street and the female passenger on South Central Avenue. The car was then driven to the 5800 block of West Roosevelt Road where it was parked. Geraci saw Vincent enter a tavern near there, and thereafter saw him leave, at about 2:30 p.m.
Edward Vaisvilas, one of the three co-defendants, testified for the State. He sold PCP from December, 1975 until March 30, 1976. He corroborated much of the testimony given by McCue and other of the State’s witnesses, and added certain information. At Jenkot’s direction, he sold one ounce of PCP, previously secured from Vincent, to McCue on February 13 for $700. He gave Vincent $600 from McCue’s payment, and $50 to Jenkot. He knew Vincent as “Sonny.” When he told Vincent of McCue’s proposed stolen television set transaction, Vincent told him to get McCue’s telephone number and come to Vincent’s home in Elk Grove Village the next day from which they woud call McCue. They did so the next day and McCue asked Vincent if he coud get rid of the television sets and that he wanted $45,000 for them. Vincent declined.
Vaisvilas, with Jenkot, next met McCue on March 23 and, at McCue’s invitation, they went to a vault and observed $50,000 in a safety deposit box. At this time, Jenkot agreed to deliver four or five pounds of PCP to McCue for $50,000; Jenkot wanted to set up the deal. On March 27 and again on March 29, Vaisvilas had conversations concerning the transactions with McCue by telephone. After the latter conversation, Jenkot told Vaisvilas that McCue’s telephone number checked out to a tavern across the street from a police station at Belmont and Western Avenues. He asked Vaisvilas not to give Sonny this information because he would get “all shook up” and “screw everything up.” On the next morning, Vaisvilas called McCue and asked him to leave Jenkot out of the mechanics of the final deal because Jenkot had a tendency to get “whacked,” but to give him his $1,000 share anyway.
After substantially corroborating McCue’s description of the events that took place at his apartment on the morning of March 30, Vaisvilas testified that when McCue got out of his van on the Central Avenue exit ramp near the Eisenhower Expressway, Vaisvilas drove to a tavern in the
Testimony was given by forensic chemist Richard Jelsomino, another State’s witness, who performed chemical analyses of all the powdery substances received from Jenkot, Vaisvilas and Vincent. He found that those substances contained PCP, an animal tranquilizer used by veterinarians, and by others as an hallucinogenic. Testimony given by other witnesses will be described later in the opinion, as necessary.
At the close of the State’s case-in-chief, defendants’ motion for a directed verdict was denied. The defense rested without presenting any evidence. The jury found Jenkot and Vincent guilty of the charges first noted in this opinion. Both Jenkot and Vincent had also been charged with delivery of a controlled substance; however, the jury found Jenkot not guilty of that charge and was deadlocked on the delivery charge against Vincent. A mistrial on the latter delivery charge was declared. After defense motions in arrest of judgment and for a new trial were denied, Jenkot and Vincent elected to be sentenced under the prior law, and were sentenced, also as first noted above. Thereafter, the State nolle prosequied the delivery charge as to Vincent. This appeal followed.
I.
Defendant Vincent first contends that he was denied a fair trial by the admission into evidence of unconnected, prejudicial hearsay statements in the absence of a ruling by the trial court that a conspiracy existed. Vincent acknowledges that the acts and declarations of co-conspirators in furtherance of the conspiracy are admissible against another defendant, even when made out of the latter’s presence, and that such acts and declarations may be admitted as exceptions to the hearsay rule. (People v. Olmos (1979),
The statements complained of, to which defense objections were made but rulings reserved, were those which McCue testified took place between himself and Jenkot on January 28,1976, concerning the establishment of a selling price for PCP; the February 1976 conversations between McCue, Jenkot and Vaisvilas, in which prices and quantities were discussed; and during the February PCP transaction between Vaisvilas and McCue. None of these conversations, Vincent contends, were tied up to or linked with Vincent and were hearsay and prejudicial to him. We cannot agree. Pretermitting Vincent’s failure to secure an ultimate ruling by the trial court as to rulings previously reserved, as well as his failure to specifically raise this point as error in his written motion for a new trial (People v. Pickett (1973),
With regard to the admission of conversations between McCue, Vaisvilas and Jenkot prior to March 23, it is clear from the January 28 discussions between Jenkot and Vaisvilas that McCue was being established as a potential “quantity” buyer. The February discussions involving two ounce sales also referred to buying and “doing large quantities,” with a minimum of one-quarter to one-half pound of PCP. The March 6
Vincent argues further that Vaisvilas’ statement, “there’s my guy now,” when the Lincoln driven by Vincent passed him and McCue as they made their way to the undercover ear with the drugs, should not have been admitted because McCue had already secured his objective, namely, possession of the drugs he was seeking from Vaisvilas; therefore, any existing conspiracy was over, he claims. Two factors, however, demonstrate that such a position cannot be sustained. First, the evidence shows that Vaisvilas still had possession of the drugs at the time he pointed to Vincent in the passing Lincoln, having then been carrying the cardboard box full of plastic PCP bags from the van to the undercover car. Delivery was not made until after Vincent had passed them and they entered the car where he “sat [sic] the box containing the PCP down on the floor” of the back seat of the undercover car. The second factor is that the agreement between the co-conspirators had not fully come to fruition since Vincent had decided to sell the whole pound of PCP at one time and had a remaining interest in the balance of the money due for the full pound, another $5,000.
We find no error, therefore, in the admissions in evidence of the descriptions of conversations and conduct earlier than March 23, and after Vincent received the initial $5,000 payment on March 30.
II.
Chicago Police Officer James Turney had testified that on March 6, 1976, he had been on duty in the Chicago Police Area 6 office where he saw Sergeant McCue place a telephone call. Turney had a conversation with McCue after the call was completed and the questioning then took the following course:
“Q. What did he tell you?
Mr. Levin: Objection.
The Court: Grounds?
Mr. Levin: Hearsay, at this point.
Mr. Lavine: It is not hearsay. It is not used to prove the truth of the matter. I’m showing the course of conduct.
The Court: Overruled, under those conditions.
Mr. Levin: May the jury be instructed?
The Court: The jury will be instructed not to take the conversation for the truth of the matter asserted. The jury will be instructed as follows: That this particular comment by Officer McCue, is not to prove the truth thereof, but merely to show the course of conduct thereafter of Officer McCue.
Mr. Lavine: Officer, what did Office McCue tell you?
A. Officer McCue told me that Eddie Vaisvilas related to him that [he] was going—
Mr. Levin: Objection; that is double hearsay. Move to strike.
The Court: Overruled. The jury will be instructed as previously instructed.
Mr. Lavine: Continue, Officer.
A. That was after McCue had learned Mr. Vaisvilas, that Mr.
Vaisvilas was going to the Connect House, the following day.” Turney then testified that he went to Vaisvilas’ house on the morning of March 7, saw him enter a van and followed him to a house on Bosworth or Hamlin Avenues in Elk Grove Village. Vincent argues that the clear intent of this testimony was to arouse the jury’s interest in who lived in the house in Elk Grove Village and to link Vaisvilas with Vincent and that the prejudice was fully developed when Vaisvilas subsequently testified that Vincent lived on Bosworth Avenue in Elk Grove Village. He asserts that when McCue told Turney that Vaisvilas said he was going to the “connect house,” meaning supplier in popular narcotics parlance, that statement could not have been limited to the “course of conduct” exception despite the trial court’s limiting instruction. Because McCue had already testified by this time, and could not have been further cross-examined by the defense as to this conversation, Vincent also claims a denial of his essential right to cross-examine, citing People v. Carpenter (1963),
The State counters that Turney’s testimony was introduced only to show why he followed Vaisvilas that day, the course of conduct exception to hearsay, not to prove the truth of the assertion that the latter was going
III.
During the conference on instructions, the State tendered two instructions as to Jenkot and Vincent, numbered 23 and 24, each of which dealt with “other crimes” based upon Illinois Pattern Jury Instructions, Criminal No. 3.14 (1968) (hereinafter cited as IPI Criminal). After objection and argument, the instructions were refused by the trial court and each was marked “denied” across the bottom half portions of each instruction. For some unexplained reason, the trial court included these instructions in his oral reading of the 26 other instructions and six forms of verdict to the jury. The defense claims that this inadvertent error was prejudicial and requires reversal, because it was defendants’ prerogative to utilize or refrain from using IPI Criminal No. 3.14 and because the language contained in the instruction, “other crimes,” does not identify what other crimes are being referenced.
The record does not affirmatively show whether or not the written instructions were also tendered to the jury. In People v. Lewis (1979),
Notwithstanding the erroneous giving of an instruction which had earlier been refused, we find the error here to have been harmless in any event. The instructions were not prejudicial to the defense because evidence had been presented at trial that on February 13 and March 2, 1976, McCue had made two preliminary purchases of PCP from Vaisvilas and Jenkot. This evidence of other crimes was admissible under the theory that it had substantial, independent relevance to show motive, intent, identity and the existence of a common scheme or design. (People v. Borawski (1978),
IV.
The defense next raises as error a restriction upon closing argument of defense counsel which came when the latter commented upon the testimony of DEA Special Agent Steven Casteel who testified that although he was in a helicopter flying at a height of from 1,000 to 1,200 feet, he could see things clearly, down to inch-long boxes. Casteel had testified, “I saw him remove a small brown object from the trunk,” in reference to Vincent’s activities. Defense counsel argued that Casteel, having been flying high above the City at that time, was a liar. To this argument, the State’s objection was sustained. Defense counsel went further in his argument and stated that because Casteel testified that the helicopter was at a height where he could differentiate between a foot, 10 inches or a lesser degree, “the man lied.” The State’s objection to the last
The State claims that defense counsel was expressing his personal opinion as to the credibility of a witness in calling Casteel a liar (People v. Hardy (1979),
V.
The defense next argues that the court erred in convicting and sentencing defendants for both calculated drug conspiracy and conspiracy. The State concedes that judgment and sentence was improperly entered on both charges since conspiracy is clearly one of the elements of calculated criminal drug conspiracy. (Ill. Rev. Stat. 1977, ch. 56?á, par.
VI.
Defendant Jenkot was charged, tried and convicted of calculated criminal drug conspiracy under section 405(b) of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1977, ch. 56M, par. 1405(b)) in that on or about March 23-30, 1976, he participated in and organized a conspiracy which delivered 444.9 grams of phencyclidine (PCP). Jenkot claims that he neither participated in nor prepared for any transaction on March 30, 1976; was not connected with Vincent or Vaisvilas on that day or days earlier; was not present at or near Central Avenue and the Eisenhower Expressway on March 30, or shared any part of any plan of Vincent and Vaisvilas that day; and his convictions for conspiracy should therefore be reversed, citing Grünewald v. United States (1957),
The record reveals that McCue first met Jenkot in the tavern on January 28, 1976. When McCue told him that he was interested in purchasing PCP, Jenkot gave McCue a card with his telephone number on it and told him he had access to “multiple ounces” of PCP and almost any kind of drug he was interested in. McCue met Jenkot again on February 12, when Jenkot introduced him to Vaisvilas and the purchase of narcotics was again discussed, this time concerning two ounces for which Jenkot quoted a price of $1,400. Vaisvilas said that his people could do “multiple ounces” of PCP and McCue responded that “his guy” was capable of one-quarter to one-half pound minimum. McCue said he would get back to Jenkot in the morning because he had to contact “his guy” for the money. On February 13, McCue called Jenkot at the number the latter had given him and told him he was ready to “go” on the two ounces and later called back and said he could purchase only one ounce that day because of a money problem. Jenkot called McCue back and informed him that Vaisvilas would “do the ounce” that afternoon, and that transaction was in fact consummated. At the time of the sale, Vaisvilas told McCue that anytime he wanted drugs he should contact
On March 12, McCue met Vaisvilas and Jenkot at the former’s home and this time Jenkot asked McCue for $500 for past arrangements and as an advance for the further deal about which McCue had come to discuss, but McCue told him he would be taken care of when “the big deal went down.” The parties also discussed prices for narcotics at this meeting. On March 23, McCue and his partner took Jenkot and Vaisvilas to the safety deposit box where they were shown $50,000 in $100 bills and Jenkot again asked for $500 but was told he would be taken care of later. It was here that Vaisvilas said they would do four pounds of PCP, one-half pounds at a time, McCue stating he would rather complete the transaction in two steps and Vaisvilas told him he would get back to him a few days later. Vaisvilas testified that McCue had told him and Jenkot that they would get $2,000 after that deal was accomplished. On March 29, after McCue called Vaisvilas and told him he was ready to purchase up to four pounds of PCP and the latter asked for McCue’s number, first Vincent called McCue at that number and prices, delivery and amounts were thereafter discussed, and later Jenkot called McCue at the same number. Notwithstanding Vaisvilas’ request to McCue not to tell Jenkot of the mechanics of the deal because he was “whacked,” Vaisvilas testified that Jenkot was to receive his $1,000 anyway and that of the $1,000 profit to be received by Vaisvilas from McCue, 40 percent was to go to Jenkot.
From the foregoing the jury could well have found that Jenkot, Vincent and Vaisvilas were indeed co-conspirators in a plan to sell and deliver the quantity of PCP with which the participants in the conspiracy were charged. Jenkot could have been deemed by the jury as one of the organizers of the drug transaction, having established contact with McCue, and assessed him as a “quantity” buyer, having introduced McCue to Vaisvilas, having given McCue his business card and discussed prices with him, and in having viewed the $50,000 during discussions of the sale of four or five pounds of PCP, in which he participated. Vaisvilas’ statement to McCue that anytime he wanted drugs he should talk first to Jenkot who would get hold of him revealed Jenkot’s close contact with the transactions.
Jenkot’s claim that he could not be guilty of participation in the conspiracy because he was not physically present on March 30 when Vaisvilas gave McCue the box of PCP does not relieve him of responsibility for that transaction. When, as here, the evidence reveals that a conspiracy has been entered into, each conspirator becomes liable for the acts of his co-conspirators done in furtherance of the conspiracy (People
VII.
The defense contends that the trial court erred in its sentencing of Vincent and Jenkot because it failed to consider statutory sentencing factors; because the court considered facts not in the record, which were highly inflammatory and prejudicial; and because the court erred by imposing an excessive sentence on each of the defendants.
As to the first alleged sentencing error, defendants’ contention relates to the absence in the record of the trial court’s consideration of each of the factors set out in the aggravation and mitigation provisions of sections 5 — 5—3.1, 5 — 5—3.2 and 5 — 4—1(a)(3) of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, pars. 1005 — 5—3.1,1005—5—3.2 and 1005 — 4— 1(a)(3)). The defense contends that nowhere in the trial court’s remarks prior to sentencing did it indicate that it considered the above cited statutory provisions, the grounds therein, or any grounds in mitigation whatever. Upon these omissions, the defense predicates reversible error. The record reveals, however, that each defendant elected to be sentenced under the prior law. At the hearing, both court and counsel were in receipt of the presentence reports and a full hearing in aggravation and mitigation was then held. Because defendants chose to be sentenced under the prior law, the sentencing judge was not required to state his reasons on the record for the sentences imposed as required by the new sentencing act. In making the election, defendants’ choice was between alternative sentencing schemes, not specific sentences. (People v. Peoples (1979),
The defense next points to a discussion by the State’s attorney of the effects of phencyclidine as an hallucinogenic drug, asserting that the court had read newspapers, medical specials and had become aware of the nature and substance of such a drug and what it does to the human body. The prosecutor also read from a report of the “Dangerous Drug Commission,” 2 at which time the court interrupted and said, “for what it’s worth, I will let you refer to that; proceed.” The prosecutor then proceeded to read certain emergency room statistics and facts about current use of drugs and concluded that PCP “is a most dangerous substance” and “a highly dangerous and toxic drug.” Thereafter, the trial court stated, among other things, that the drug on some occasions had been known to cause the user to drown in an inch of water, others to pull out their eyeballs and do other bizarre things, to cause schizophrenia and other such terrible debilitating effects upon the human body. The court then sentenced the two defendants.
In determining the degree of punishment to be imposed following conviction, a court is not bound by the usual rules of evidence but may search within reasonable bounds for facts tending to show aggravation or mitigation of an offense. (People v. Cook (1975),
In the present case, the potential dangers to the community of
Defendants Vincent and Jenkot maintain that they were given excessive sentences in light of the nature of their offenses and in contrast with the sentences received by Vaisvilas, a co-conspirator. Vincent was the obvious supplier of PGP from which he derived a large monetary profit. He engaged in the conspiracy which supplied Sergeant McCue with one pound of PCP in exchange for an agreed price of $10,000. When sold in smaller quantities, the impact upon the community would be widespread. Jenkot, although not a supplier under the facts, clearly played an important role in organizing the sale in “large” quantities right from the first contact he had with Sergeant McCue. We cannot say that the sentences of the trial court under the foregoing circumstances was an abuse of his discretion. People v. Perruquet (1977),
With respect to the comparison of defendant’s sentences with that recommended by the State’s attorney for Vaisvilas, namely, a sentence of 2 to 6 years imprisonment, a trial court may properly grant leniency in sentencing a defendant who by his plea insures prompt and certain
For the foregoing reasons we are compelled to sustain the jury findings that Vincent and Jenkot were guilty of calculated criminal drug conspiracy and affirm the judgments and sentences entered thereon. We reverse and vacate the judgments as to each said defendant with regard to conspiracy.
Affirmed in part, reversed in part and conspiracy sentences vacated.
PERLIN, P. J., and DOWNING, J., concur.