People v. Canales, 3196/09
| Decision Date | 24 May 2011 |
| Docket Number | 3196/09 |
| Parties | The People of the State of New York v. Anthony Canales, Luis Lopez, Aishan Reyes, Sandro Rodriguez, and Calvin Sanchez, DEFENDANTS. |
| Court | New York Supreme Court |
Howard Kirsch, Esq.
For Defendant Luis Lopez
Albert Brackley, Esq
For Defendant Aishan Reyes
James Koenig, Esq.
For Defendant Sandro Rodriguez
Robert DePalma, Esq.
For Defendant Calvin Sanchez
Peter Guadagnino, Esq.
For the People: Lawrence Oh, Esq.
Maria Haymandou, Esq.
Jose Nieves, Esq.
Frank Santarpia, Esq.
Kings County District Attorney's Office
Under Kings County indictment 3196/2009, 42 defendants were charged with conspiracy to possess narcotics. Individual defendants were charged with related violent or narcotics crimes allegedly committed in furtherance of the conspiracy. The five above-captioned defendants, after severance for trial, were recently tried on the counts applicable to them.1
During trial the court received, against all five defendants, evidence of numerous statements that were admissions of co-conspirators made in the course of and in furtherance of a conspiracy. See People v. Salko, 47 NY2d 230 (1979). The People also sought to admit, against all the defendants on trial, a statement allegedly made by defendant Canales after all five defendants had been arrested. Likewise, the People sought to introduce admissions made by defendant Reyes after all five defendants had been arrested. The defense objected that the alleged conspiracy had ended with the arrests, and that the statements were therefore not made by a conspirator in the course of and in furtherance of the conspiracy.
This court agreed that the contested admissions of Canales and Reyes did not fall within the category of co-conspirator declarations. Each statement was received only against the declarant, Canales or Reyes. However, New York law does not plainly speak to the issue of when, for these purposes, a conspiracy ends. This opinion will therefore issue to explain the court's ruling.
Indictment 3196/2009 charged dozens of individuals with Conspiracy in the First and /or Second Degree for joining a three year scheme to commit a class A felony, the possession of over four ounces of cocaine. The first degree count of course alleged that certain conspirators, while over the age of 18, had conspired with individuals under the age of 16. The People's theory was that the conspirators sold cocaine through a delivery service in neighborhoods like Sunset Park, Bay Ridge, Bensonhurst, and Dyker Heights. Customers could order cocaine with a phone call, and a car would be dispatched to make the delivery. The head of the conspiracy, Erik Rodriguez, purchased and maintained supplies of cocaine in excess of the requisite four ounces.
Erik Rodriguez pleaded guilty to first degree conspiracy and other charges, and testified for the People at trial. Also testifying for the People was Jose Rodriguez, Erik Rodriguez' cousin. The jury heard numerous conversations among the alleged conspirators, many including Erik Rodriguez, that were intercepted pursuant to wiretap orders.
The Rodriguez cousins and four of the defendants recently on trial—all but Canales—were arrested on March 20, 2009. On that day a rival cocaine dealer apparently stole a delivery car from defendant Reyes. Erik Rodriguez, Jose Rodriguez, Luis Lopez, Sandro Rodriguez, Calvin Sanchez and Aishan Reyes rode in three cars to a location on 51st Street in Brooklyn where Reyes shot two individuals in retaliation. The police, who had been listening to pertinent calls pursuant to the wiretap orders, immediately arrested all the conspirators present in the area except Reyes. Reyes was taken into custody hours later at a Brooklyn motel.
According to Erik Rodriguez, at the time of the arrests he had a quantity of cocaine at the residence he shared with his wife and co-conspirator, Leslie Torres Rodriguez ("Torres"). The police arrested Torres at that location on the night of March 20-21, 2009. The police searched the location under the authority of a
search warrant, but recovered no cocaine.
The failure of the police to recover cocaine undercut the testimony of Erik Rodriguez. The People sought to introduce, through Erik Rodriguez, a statement
allegedly made to him by Canales on March 21, 2009, after Canales' own arrest.
Erik Rodriguez would testify that Canales said he saw Leslie Torres while they were both in custody. Canales was told by Torres that she had secreted cocaineinside her person before she was arrested, and that she disposed of it in a toilet inside a holding cell.
The People further alleged that Reyes had made admissions to Jose Rodriguez while both were in custody. Reyes related details of the events immediately surrounding the shooting on 51st Street, which none of Reyes' fellow conspirators had actually witnessed. Jose Rodriguez offered to testify about Reyes' statements concerning the shooting.
The issue for the court was whether Canales' and Reyes' out-of-count declarations to the Rodriguez cousins were admissible against all five defendants on trial as declarations made by a conspirator in the course of and in furtherance of a conspiracy of which the five defendants were members.
In New York, much of the law of hearsay has been established by the common law, rather than by statutes. The Court of Appeals has long recognized that statements made by the agent of a party may be introduced against the party as an admission, so long as the agent was acting within the scope of his authority when he spoke. See Stecher Lithographic Co. v. Inman, 175 NY 124, 127-28 (1903); Booth v. Cleveland Rolling Mills Co., 74 NY 15, 25 (1878). In addition, those who enter into a criminal agreement become one another's agents. A conspirator's statements are therefore "binding"on co-conspirators, and admissible against them, if they are made within the scope of the conspirator's authority to speak for the others. That is, the statements of a conspirator are admissible against his co-conspirators if they are made in the course of and in furtherance of the conspiracy—the agency agreement. People v. Tran, 80 NY2d 170, 179 (1992); People v. Salko at 237.
This case readily supplies examples of statements that fall within the category of co-conspirator declarations. Scores of cell phone conversationswere recorded pursuant to wiretap orders and were admitted without objection against all the defendants on trial. In some, dispatchers like Erik Rodriguez and Lopez advised delivererslike Reyes and Sanchez where customers were waiting. In others, Erik Rodriguez and Canales discussed purchasing cocaine. In others, the conspirators addressed the need to retaliate for the theft of a "company" car
on March 20, 2009. Indeed, in a dramatic series of calls on that day, the conspirators are heard assembling on 51st Street near the scene of the later shooting and Reyes is advised by his fellows about how to use a handgun againstthe individual who was their target.
But all conspiracies come to an end. In this case the police arrested Erik Rodriguez, Jose Rodriguez, Luis Lopez, Sandro Rodriguez, and Calvin Sanchez just after the shooting, at about 8:05 p.m. on March 20, 2009. Reyes was arrested soon thereafter. That same night—two weeks before the scheduled "takedown" of the conspiracy—the police began an emergency "takedown" with dozens of arrests and the execution of a number of search warrants. As a result Canales and Leslie Torres were arrested late on the night of the shooting. For all practical purposes, the Erik Rodriguez conspiracy died shortly after 8:00 p.m. on March 20, 2009.
That circumstance is critical here. The statements at issue were made on March 21, 2009. When Torres told Canales that she had disposed of the stash of cocaine, when Canales relayed that information to Erik Rodriguez, and when Reyes gave Jose Rodriguez details of the 51st Street shooting, the conspiracy was over. Numerous members of the Erik Rodriguez retail operation were in custody, the police were plainly in command, and there was no prospect that the business of the conspiracy would be resurrected in the foreseeable future. It follows that the statements offered by the People were not admissible against the defendants on trial as co-conspirator admissions. The statements were not made "in the course of and in furtherance of " the Erik Rodriguez conspiracy.
Thatconclusion is consistent with federal law concerning the co-conspirator exception to the hearsay rule. Federal law is essentially the same as New York law as to co-conspirator declarations. See, e.g., Lutwak v.United States, 344 U.S. 604, 617-18 (1953). As to whether statements made "late" are admissible, the leading decision is still Krulewitz v. United States, 336 U.S. 440 (1949). Krulewitz and another were charged with transporting a woman from New York to Florida for purposes of prostitution. The "victim" testified at Krulewitz' trial. She related that, a month and a half after she was taken to Florida, an accomplice warned her not to speak to the authorities and said it would be better if only they two "took the blame" as Krulewitz "couldn't stand to take it." Krulewitz at 441-42. The Supreme Court noted that when this statement was made, the "victim" was long since back in New York, and she, Krulewitz, and the accomplice all had been arrested.
The testimony about the statement had been admitted as thedeclaration of a co-conspirator, and that was error. The original conspiracy "no longer existed" at the late date on which the statement was made, because by then the objectives of the conspiracy "either had failed or had been achieved." The statement therefore was not made in furtherance of the conspiracy. Krulewitz at 442-43. The government argued that the statement was made in furtherance of "a continuing subsidiary objective" of the conspiracy, in...
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