People v. Caban

• Decision Date: 14 June 2005
• Citation: 5 N.Y.3d 143,833 N.E.2d 213
• Parties: The PEOPLE of the State of New York, Respondent, v. Carlos CABAN, Appellant.
• Court: New York Court of Appeals Court of Appeals

833 N.E.2d 213

5 N.Y.3d 143

The PEOPLE of the State of New York, Respondent, v. Carlos CABAN, Appellant.

Court of Appeals of New York.

June 14, 2005.

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Robert J. Boyle, New York City, and Lynne F. Stewart for appellant.

Robert T. Johnson, District Attorney, Bronx (Peter D. Coddington of counsel), for respondent.

OPINION OF THE COURT

KAYE, Chief Judge.

Defendant was convicted of conspiracy to commit murder, based largely on the testimony of prosecution witness George Castro. By his own admission, Castro was a street-level drug dealer who, along with several others, worked for defendant, selling crack on Fox Street in the Bronx. Castro resided in defendant's stash house, and was there on March 18, 1995, when the charged conspiracy was allegedly hatched. The object of the conspiracy was to kill Angel Ortiz, a rival drug dealer who also sold crack on Fox Street. Castro testified that he was packaging drugs in the stash house on March 18, along with two of defendant's dealers, Pello Torres and Melvin Butler, and defendant's brother, Derrick Garcia, when defendant informed the group that Ortiz "needed . . . to be killed" because his operations were competing with defendant's drug business, and offered to pay $5,000 for the murder. Castro further testified that Garcia responded, "I'll do it," and Torres offered to provide Garcia with a gun.

On June 1, 1995, Ortiz was murdered in a Fox Street playground, in the presence of three of his drug dealers and his girlfriend's four-year-old daughter. According to Castro's account of the killing, he was in front of the stash house when Torres approached him and said, "It's time." Torres then went into the house, whereupon Garcia came out with a friend. Castro testified that he followed Garcia and the friend to the playground and watched from across the street as Garcia approached Ortiz and argued with him over defendant's drug "spot." As Ortiz turned to walk away, Garcia shot him several times, killing him.

On cross-examination, Castro admitted his involvement in a prior, unsuccessful attempt on Ortiz's life, which took place sometime in mid-March 1995. Although the trial testimony did not establish whether this incident occurred before or after the March 18 meeting, on the date in question Castro, Torres and Butler set out to kill Ortiz. Butler was armed with two guns, while Castro acted as a lookout. The plan was aborted, however, when the police appeared.

Defendant was eventually indicted and tried for murder in the second degree, manslaughter in the first degree, conspiracy in the second degree, and criminal possession of a weapon in the second degree. The jury convicted him of conspiracy, but acquitted him of the substantive crimes, and a divided Appellate Division affirmed.

I. Statements of Coconspirators

Defendant's first claim of error relates to the three statements of Garcia and Torres, as testified to by Castro—Garcia's March 18 "I'll do it" and Torres's offer to provide Garcia with a gun, and Torres's June 1 "It's time." Defendant argues that hearsay statements of coconspirators are admissible only when a prima facie case of conspiracy is established independent of the statements, and maintains that the People failed to establish such a case here. We reject that claim.

"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. Bac Tran, 80 N.Y.2d 170, 179, 589 N.Y.S.2d 845, 603 N.E.2d 950 [1992]). The theory underlying the coconspirator's exception is that all participants in a conspiracy are deemed responsible for each of the acts and declarations of the others (see e.g. People v. Rastelli, 37 N.Y.2d 240, 244, 371 N.Y.S.2d 911, 333 N.E.2d 182 [1975]; Martin, Capra and Rossi, New York Evidence Handbook § 8.3.2.4, at 720 [2d ed.]). The exception "is not limited to permitting introduction of a conspirator's declaration to prove that a coconspirator committed the crime of conspiracy, but, rather, may be invoked to support introduction of such declaration to prove a coconspirator's commission of a substantive crime for which the conspiracy was formed" (People v. Salko, 47 N.Y.2d 230, 237, 417 N.Y.S.2d 894, 391 N.E.2d 976 [1979], rearg. denied 47 N.Y.2d 1010, 420 N.Y.S.2d 223, 394 N.E.2d 292 [1979]). However, as defendant points out, such declarations may be admitted only when a prima facie case of conspiracy has been established. While the prima facie case of conspiracy "must be made without recourse to the declarations sought to be introduced" (Salko, 47 N.Y.2d at 238, 417 N.Y.S.2d 894, 391 N.E.2d 976), "the testimony of other witnesses or participants may establish a prima facie case" (People v. Wolf, 98 N.Y.2d 105, 118, 745 N.Y.S.2d 766, 772 N.E.2d 1124 [2002]).

A. Relevance of the Challenged Statements

At the outset, we note that the same evidence may be admissible under different theories when offered for different purposes. Here, some of the statements at issue were relevant for different purposes with respect to the different charges for which defendant was tried. Specifically, although the March 18 declarations of Garcia and Torres were hearsay when offered to prove the murder and related charges of which defendant was acquitted, they were nonhearsay when offered to prove the only charge now before us—conspiracy.

A conspiracy consists of an agreement to commit an underlying substantive crime (here, murder), coupled with an overt act committed by one of the conspirators in furtherance of the conspiracy (see Penal Law §§ 105.15, 105.20). Thus, with respect to the conspiracy charge, Garcia's acceptance of defendant's solicitation to murder Ortiz was relevant not for its truth, but rather as evidence of an agreement to commit the underlying crime—itself an essential element of the crime of conspiracy. In other words, whether or not Garcia in fact killed Ortiz, his acceptance of defendant's invitation to do so was a verbal act which rendered defendant and his coconspirators culpable for the inchoate crime of conspiracy, even if the planned substantive crime never came to fruition. Indeed, even if Garcia had no genuine intent ever to commit the murder, defendant would be guilty of conspiracy if he believed he had entered into such an agreement.

"[T]he `act' of agreeing is concrete and unambiguous as an expression of each actor's intent to violate the law. . . . The fact of agreement serves only to unequivocally establish a particular actor's intent to commit the object crime by acting with others.

"The identity and degree of participation by the other persons are wholly irrelevant. Also irrelevant are the niceties of contract law concerning when an agreement is consummated (e.g., meeting of the minds). It is the individual who is prosecuted [for conspiracy] and necessarily it is the individual who must have the prescribed mens rea. The requisite intent is to join with others to commit a substantive crime. If an individual believes he has so joined, it is sufficient to establish complicity, regardless of the actual fact of agreement. . . . This is particularly so . . . where . . . it appears that the individual defendant is the originator of the criminal plan and the one most anxious to see the successful completion of the criminal objective" (People v. Schwimmer, 66 A.D.2d 91, 95-96, 411 N.Y.S.2d 922 [2d Dept.1978], affd. for reasons stated in op. below 47 N.Y.2d 1004, 1005, 420 N.Y.S.2d 218, 394 N.E.2d 288 [1979]).

Similarly, Torres's statement that he would provide the gun for a later homicide—even if ultimately untrue—was admissible for the fact that it was said, inasmuch as its utterance provided evidence of Torres's unlawful agreement with defendant and Garcia. Thus, because the March 18 statements were nonhearsay with respect to the conspiracy charge, the People had no obligation to establish a prima facie case of conspiracy in order for the statements to be admissible.

The analysis differs respecting the admissibility of these declarations as relevant proof of the substantive crimes. Garcia's inculpatory offer to "do it," if introduced as evidence that he had in fact committed the June 1 homicide, would—although proffered in that event for its truth—nevertheless be admissible at defendant's trial under the coconspirator's exception to the hearsay rule as evidence of defendant's complicity in the murder. In that event, however, a prima facie case would need to be established independent of the hearsay statement. The same rule applies to Torres's offer to provide the gun, if used to establish the conspirators' collective guilt of murder and weapon possession.

Thus, the same declarations—relevant both to conspiracy and to the substantive crimes whose commission formed the basis of the conspiratorial enterprise—were admissible at defendant's trial under different theories and different rules, depending on which crimes they were offered to prove. Since the statements were nonhearsay with respect to the conspiracy charge—the only charge before us—defendant's challenge to their admissibility concerning that charge is without merit.

B. Prima Facie Case of Conspiracy

The third challenged statement—Torres's June 1 "It's time" remark to Castro—was offered for its truth, and therefore hearsay, whether as to the conspiracy charge or the substantive crimes. In the context of Castro's account, Torres's statement in effect meant, "The time has come to kill Ortiz." Nevertheless, this statement was properly admissible against defendant as a declaration made by a coconspirator in the course or in furtherance of the conspiracy, so long as the People established a prima facie case independent of any hearsay statements.

The Appellate Division majority, in affirming defendant's conspiracy conviction correctly concluded that the People had met this burden. The prosecution introduced,...