People v. Malagon
| Decision Date | 24 June 1980 |
| Citation | 50 N.Y.2d 954,409 N.E.2d 934,431 N.Y.S.2d 460 |
| Parties | , 409 N.E.2d 934 The PEOPLE of the State of New York, Respondent, v. Martin MALAGON, Appellant. |
| Court | New York Court of Appeals Court of Appeals |
The order of the Appellate Division, 67 A.D.2d 883, 413 N.Y.S.2d 536, should be reversed, the defendant's conviction vacated, and the indictment dismissed.
The defendant was convicted of conspiracy in the first degree for allegedly conspiring with one Mostovoy to sell cocaine on five specified dates in 1975. The People submitted proof that Mostovoy sold the drug to an undercover officer at or near an apartment in Manhattan. The defendant was never present during any of these sales and, during these transactions, Mostovoy never mentioned the defendant as being involved in the illegal drug traffic. Mostovoy did, however, make frequent references to his supplier and these remarks were used circumstantially to identify the defendant as the supplier. In view of the fact that Mostovoy did not testify at trial, the People relied almost exclusively on hearsay to establish the defendant's guilt. The primary question is whether Mostovoy's statements concerning his supplier, as related by the police officers, were properly admitted in evidence under the conspiracy exception to the hearsay rule.
It is settled that a statement made by a conspirator during the course of, and in the furtherance of, a conspiracy may be admitted against a coconspirator to establish guilt of a conspiracy or a substantive offense (People v. Salko, 47 N.Y.2d 230, 237, 417 N.Y.S.2d 894, 391 N.E.2d 976). The evidence however is not admissible unless the People have submitted proof, other than the hearsay statements, showing that a conspiracy existed at the time the statements were made (People v. Salko, supra; People v. Berkowitz, 50 N.Y.2d 333, 428 N.Y.S.2d 927, 406 N.E.2d 783). This preliminary showing is sufficient if the independent evidence establishes the conspiracy prima facie (People v. Salko, supra, 47 N.Y.2d p. 237, 417 N.Y.S.2d 894, 391 N.E.2d 976). Here, however, the court instructed the jury during the opening statements that this preliminary showing required proof beyond a reasonable doubt, and later during the charge to the jury stated: "All statements, activities, and conduct of Mostovoy must not...
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