People v. Berkowitz

• Decision Date: 08 May 1980
• Citation: 428 N.Y.S.2d 927,50 N.Y.2d 333
• Parties: , 406 N.E.2d 783 The PEOPLE of the State of New York, Appellant, v. Ronald BERKOWITZ, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 927

428 N.Y.S.2d 927

50 N.Y.2d 333, 406 N.E.2d 783

The PEOPLE of the State of New York, Appellant, v. Ronald BERKOWITZ, Respondent.

Court of Appeals of New York.

May 8, 1980.

Robert M. Morgenthau, Dist. Atty. (Bruce Allen and Norman Barclay, New York City, of counsel), for appellant

Spiros A. Tsimbinos, Kew Gardens, for respondent.

OPINION OF THE COURT

GABRIELLI, Judge.

The People appeal from an order of the Appellate Division which reversed defendant's conviction of the crime of conspiracy in the first degree and dismissed the indictment on the ground that, as a matter of law, the People had failed to prove defendant's guilt beyond a reasonable doubt. The appeal presents three issues: (1) whether the People made out a prime facie case of conspiracy sufficient to justify use of an alleged coconspirator's remarks during and in furtherance of the conspiracy against this defendant; (2) whether the prior acquittal of the alleged sole coconspirator precludes conviction of this defendant; and (3) whether Supreme Court was justified in denying defendant's motion to dismiss on speedy trial grounds without a hearing. ¹ For the reasons discussed below, we answer the first question in the affirmative and the second and third in the negative.

Defendant was convicted of conspiring with one Diane Alvarez to commit certain drug related class A felonies. The primary witness against defendant was Detective Robert Wainen, an undercover agent of the Drug Enforcement Administration. One of Wainen's sources was Jason Stark, a confidential informant. Stark agreed to arrange a meeting between Wainen and defendant in Stark's apartment at 12:30 p. m. on the afternoon of December 13, 1974 so that Wainen could purchase cocaine.

Wainen arrived at Stark's apartment at about 12:15 p. m. on the appointed day. Defendant did not appear at 12:30, but at about 1:00 p. m. Stark received a phone call from a man who told him that he had been delayed and would not be able to get there until 2:30 p. m. Officer Wainen also listened to the phone conversation, ² and, although he had not yet met defendant at that time, at trial he was able to identify the caller as the defendant because of subsequent conversations which afforded him an opportunity to recognize and identify defendant's voice over the telephone. Despite this call, defendant had still not arrived at Stark's apartment by 3:00 p. m., at which time a second call was received. This time the officer did not listen to the caller, although he overheard Stark's side of the conversation. As a result of that call, Stark and Wainen proceeded to the corner of 33rd Street and Third Avenue in Manhattan, where they were met by Diane Alvarez, who led Stark and Wainen to the apartment which both she and defendant were to list as their home when they were arrested. As they were traveling to the apartment, Alvarez informed them that the change in plans was necessary because "her boyfriend Ronnie had become paranoid." She also assured them that "Ronnie" would be at the apartment. The defendant's first name is Ronald.

Upon their arrival at the apartment, Alvarez led Wainen and Stark into the living room, where they engaged in general conversation for approximately five minutes. Then defendant entered the apartment, looked briefly at Wainen, and walked into another room in the rear of the apartment. Alvarez followed defendant into the rear room, and a few minutes later defendant and Alvarez both called out to Stark to join them there. Several minutes after he did so, Alvarez returned to Wainen, who had been waiting in the living room, and handed him a plastic bag containing 26.68 grams of cocaine. Alvarez then returned to the rear room while Wainen examined the package and its contents. Shortly thereafter Alvarez returned to the living room and asked Wainen for the money. He gave her some $2,200 and then told her that if they were to continue doing business the changes in time and place would have to cease. She assured him that there would be no such complications on the next occasion. He then asked if he could purchase a "heavier package" in the near future, and she replied that there would be no problem. Wainen and Stark then left the apartment.

On December 24, 1974, some 11 days after the transaction in the apartment, Wainen attempted to contact Alvarez by telephone to arrange another sale. Defendant answered the telephone, and after ascertaining Wainen's identity, told him that Alvarez was out. The two then engaged in a somewhat ambiguous conversation, which was interpreted by Wainen at trial as containing numerous veiled references to the December 13 sale as well as a discussion of a possible larger sale in the future. For example, Wainen indicated that he wanted to discuss "something different and uh, uh, you know, bigger" as well as the possibility of something "more steady". Defendant replied that he could not agree to anything definite at that time, because "I still have to get hooked up with her * * * because um, that's where I get it from." Unbeknownst to defendant, Wainen taped the conversation and it was introduced at trial.

On December 27, 1974, Wainen again telephoned, this time reaching Alvarez. The two arranged to meet that afternoon for a discussion of future drug transactions. At that meeting, the two had a long conversation about the amount and price of drugs Alvarez could obtain for Wainen. She also explained that he should deal directly with her instead of defendant in the future, because the "connection" was hers and defendant normally handled only the street sales. During the next few days Alvarez and Wainen continued negotiations over the possible purchase of an eighth of a kilo of cocaine, but no sale resulted from those discussions. Shortly thereafter, Alvarez and defendant were arrested. They were indicted and tried separately. Defendant was charged only with conspiracy in the first degree and was convicted of that crime. Alvarez, who was charged with several counts, was acquitted of conspiracy but was convicted of criminal sale of a controlled substance in the second degree. ³

On defendant's appeal, the Appellate Division reversed the judgment of conviction on the law alone and dismissed the indictment. Correctly noting that any statements made by Alvarez and acts performed by her during and in furtherance of the alleged conspiracy could not be admitted into evidence against defendant unless the People first established a prima facie case of conspiracy without such evidence, the Appellate Division then found that the People in this case had failed, as a matter of law, to establish a prima facie case of conspiracy. Accordingly, the Appellate Division concluded that the People had failed to prove defendant's guilt beyond a reasonable doubt. We disagree.

Initially, we note that the principles of law applicable to this case are well settled. Although normally an admission made by one defendant is not binding upon and may not be used against another defendant, the rule is somewhat different with respect to conspiracy. Where two or more persons have entered into an illicit agreement to commit a crime, each of them to some extent may be deemed to speak as an agent for the others with respect to statements made in furtherance of and in the course of that conspiracy. Thus, once a prima facie case of conspiracy has been made out, such statements are admissible against each coconspirator (see People v. Salko, 47 N.Y.2d 230, 237-238, 417 N.Y.S.2d 894, 391 N.E.2d 976). For similar reasons, " (o)nce an illicit agreement is shown, the overt act of any conspirator may be attributed to other conspirators to establish the offense of conspiracy" (People v. McGee, 49 N.Y.2d 48, 57, 424 N.Y.S.2d 157, 162, 399 N.E.2d 1177, 1181: see Penal Law, § 105.20), although the mere fact that one is a coconspirator does not in and of itself support the imputation of criminal liability for the object crime (see People v. McGee, supra, pp. 57-58, 424 N.Y.S.2d 157, 399 N.E.2d 1177).

Applying these principles to the instant case, we conclude that the People did establish a prima facie case of conspiracy sufficient to justify the use of Alvarez' statements against defendant and to premise defendant's guilt of conspiracy upon the overt acts performed by Alvarez in furtherance of their illicit agreement. Defendant's involvement in the plan to sell drugs to Officer Wainen was evidenced by his significant connections with the transaction: there was evidence indicating that from the very beginning, it was defendant whom Wainen was to meet on December 13, not Alvarez, as is shown by Wainen's testimony that defendant called the apartment to postpone the first meeting. Similarly, once the informant and Officer Wainen arrived at the apartment, the transaction was delayed until defendant made his appearance. While the actual sale was conducted by Alvarez, the details of that transaction, as described above, lead inexorably to the conclusion that defendant was involved. Finally, the tape-recorded conversation between defendant and Officer Wainen on December 24, although possibly somewhat ambiguous if viewed alone, contains clear indicia of guilt when interpreted in context and in light of the prior meeting between Wainen and defendant, which was fully described by Wainen at trial. In short, although it might well be that absent the incriminatory statements and actions of Alvarez there would be insufficient evidence to prove defendant's guilt beyond a reasonable doubt, the introduction into evidence of those statements and acts requires only the establishment of a prima facie case. We find that the evidence as to the statements and actions of defendant alone sufficed to establish a prima facie case, and thus the statements made by Alvarez and the overt acts performed by her were properly admitted against defendant. Those, when added to the other evidence of guilt, sufficed to prove defendant's guilt...