People v. Berkowitz

• Decision Date: 04 January 1979
• Citation: 67 A.D.2d 601,411 N.Y.S.2d 896
• Parties: The PEOPLE of the State of New York, Respondent, v. Ronald BERKOWITZ, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 896

411 N.Y.S.2d 896

67 A.D.2d 601

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

Supreme Court, Appellate Division, First Department.

Jan. 4, 1979.

B. Allen, New York City, for respondent.

S. A. Tsimbinos, Kew Gardens, for defendant-appellant.

Before MURPHY, P. J., and LUPIANO, EVANS, MARKEWICH and SULLIVAN, JJ.

MEMORANDUM DECISION.

Judgment of conviction of conspiracy, first degree, rendered May 19, 1977, Supreme Court, New York County (Davis, J., and a jury), reversed, on the law, and the indictment dismissed. This case is reminiscent of People v. Salko, 60 A.D.2d 307, 401 N.Y.S.2d 494, 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 be 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 N.Y. 160, 163, 48 N.E.2d 306, 307.)" Salko, supra, p. 312, 401 N.Y.S.2d p. 498, Lupiano, J.

"Generally, an admission by one defendant is not admissible against a codefendant. (People v. Payne, 35 N.Y.2d 22, 27, 358 N.Y.S.2d 701, 705, 315 N.E.2d 762, 765; 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 N.Y.2d 240, 244, 371 N.Y.S.2d 911, 914, 333 N.E.2d 182, 183.) 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, 70 N.Y.S. 147, 154.) A conspiracy may be established by circumstantial evidence (People v. Van Tassel, 156 N.Y. 561, 564, 51 N.E. 274, 275), but the declarations of an alleged coconspirator cannot be received for the purpose of proving the conspiracy (Lent v. Shear, 160 N.Y. 462, 468, 55 N.E. 2, 3)." Salko, supra, pp. 309-10, 401 N.Y.S.2d p. 494, Murphy, P. J.

Thus, in this case, the statements of alleged co-conspirator 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 co-conspirators, 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 non-hearsay 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.

All concur except LUPIANO and SULLIVAN, JJ., who dissent in a memorandum by LUPIANO, J., as follows.

LUPIANO, Justice (dissenting):

The critical issue on this appeal is whether defendant was proven guilty of conspiracy beyond a reasonable doubt. Evidence against the defendant, circumstantial in nature, involved events that occurred in the informant Stark's apartment and in the Alvarez apartment on December 13, 1974 and the taped telephone conversation between defendant and Robert Wainen, an undercover Newark detective, which occurred on December 24, 1974.

On December 13, 1974, arrangements had been made for the undercover detective to be introduced to defendant for the purpose of buying narcotics from the latter. The introduction was to be made by Jason Stark, a confidential informant, and the sale was to take place at Stark's apartment located in Manhattan. At 12:15 P.M. on that day, the detective arrived at Stark's apartment. Defendant did not appear at 12:30 P.M. as planned. At 1:00 P.M. defendant made a telephone call to Stark (Which the detective listened to ) and defendant postponed the meeting until 2:30 P.M. (The undercover officer was permitted to testify to this conversation with defendant on the basis of the officer's subsequent attainment of familiarity with defendant's voice and consequent ability to identify defendant as the party who called Stark). Again, defendant did not appear as scheduled, but a second telephone call at 3:00 P.M. caused the informant to tell the detective that the meeting place had been changed to 33rd Street and Third Avenue in Manhattan. (The officer did not listen to this second conversation.)

Wainen and Stark went to a corner at 33rd Street and Third Avenue and were greeted by Diane Alvarez, a girlfriend of defendant who requested that they wait while she collected her laundry. When she returned, she was introduced to Wainen and suggested that they go to her apartment. In response to Wainen's inquiry as to "why there was a change and what was the problem," Alvarez replied that "her boyfriend Ronnie (defendant) had become paranoid and that is why he made the change." Alvarez assured the detective that only the three of them and her boyfriend (the defendant) would be in the apartment. The three entered the apartment and sat down in the living room. Five minutes later defendant entered, looked briefly at the undercover detective and went immediately to a back bedroom which was out of the officer's view. A few minutes later, the Defendant and Alvarez called the informant into the bedroom, leaving the detective alone in the living room. Two or three minutes later, Alvarez returned and gave the officer a plastic bag containing slightly less than one ounce of cocaine and went back to the bedroom. A few minutes later, Alvarez came back into the living room and asked Wainen for $2200 for the drugs, which he gave her. The detective and the informant left the apartment.

Eleven days later, on December 24, 1974,...