People v. Persico

• Decision Date: 22 May 1990
• Citation: 157 A.D.2d 339,556 N.Y.S.2d 262
• Parties: The PEOPLE of the State of New York, Respondent, v. Theodore PERSICO, Jr., Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 262

556 N.Y.S.2d 262

157 A.D.2d 339

The PEOPLE of the State of New York, Respondent, v. Theodore PERSICO, Jr., Defendant-Appellant.

Supreme Court, Appellate Division First Department.

May 22, 1990.

Hillary Hassler, of counsel (Mark Dwyer with her on the brief; Robert M. Morgenthau, Dist. Atty., New York City, attorney), for respondent.

Judd Burstein, New York City, for defendant-appellant.

Before MURPHY, P.J., and SULLIVAN, CARRO, MILONAS and SMITH, JJ.

MURPHY, Presiding Justice.

The defendant, Theodore Persico, Jr., has been convicted, after a jury trial, of one count of Conspiracy in the Second Degree and three counts of Criminal Sale of a Controlled Substance in the First Degree. The evidence presented at Mr. Persico's trial indicated that on three occasions in June of 1986 Mr. Persico had supplied quantities of cocaine to a dealer named Vincent Lafaro who thereupon sold the cocaine to an undercover detective by the name of Berger.

The first of these transactions occurred on June 3, 1986. On that date, Berger telephoned Lafaro and requested three ounces of cocaine. Twenty minutes later Berger arrived at Lafaro's apartment and was advised by Lafaro that he, Lafaro, would call "his guy" to order the three ounces. Lafaro then placed a call to a beeper number and punched a return number into a digital phone. While waiting for the return call, Berger heard Lafaro mutter, "Teddy call already." Minutes later the phone rang. Referring to the caller as "Teddy," Lafaro ordered three ounces of cocaine and arranged to meet the caller at his house in ten or fifteen minutes. Upon concluding the phone conversation, Lafaro informed Berger that they would go to his (Lafaro's) "guy's house to pick up the stuff." Berger then gave Lafaro $4500, the agreed-on price for the cocaine, and the two men rode in Lafaro's car to the place where the transaction was to be completed. In ten minutes, Lafaro and Berger arrived at defendant's house. Lafaro rang the doorbell, but no one answered. Shortly, however, defendant appeared driving a white Corvette. He emerged from the car carrying a white plastic bag and approached Lafaro who was waiting by the door. Five minutes after entering the house with the defendant, Lafaro reappeared, momentarily accompanied by the defendant, carrying a brown paper bag. The bag, which Lafaro immediately transferred to Berger, contained nearly three ounces of packaged cocaine. On the way back to Lafaro's apartment, Berger asked Lafaro whether his "guy" had had the cocaine in the house or had brought it with him. Lafaro replied that the cocaine had been brought.

Just over two weeks later, on June 19, 1986, Berger again called Lafaro and told him that he would be at Lafaro's in fifteen minutes to pick something up. About 20 minutes after this phone call, minutes before Berger's arrival, the defendant appeared in front of Lafaro's house in his white Corvette. He was observed by a police surveillance team exiting his car carrying a small white bag. He then met Lafaro at the front door of Lafaro's apartment building. It was at this point that Berger arrived. As Berger walked toward the front door, he passed the defendant who was on his way back to his car, empty-handed. Berger asked the defendant whether Vinnie (Lafaro) was there but received no answer from the defendant, who continued toward his car. Moments later, Berger made his way to the door where Lafaro was waiting. Lafaro was holding a small plastic bag which he opened for Berger's examination; inside were three plastic bags of cocaine. Berger immediately informed Lafaro that he wanted five ounces whereupon Lafaro yelled out, "Hey, Teddy," and ran after the defendant. A short discussion between Lafaro and the defendant ensued. Thereafter the defendant drove away and Lafaro told Berger that "the guy" would return shortly with two more ounces. While waiting for the additional two ounces, Berger inquired whether the driver of the Corvette had been Lafaro's supplier for this as well as the earlier June 3 transaction. Lafaro replied that he had. Eventually, Berger became impatient and asked "What's with this Teddy?" Lafaro then placed a phone call, asking the person on the other end of the line, "Hey, Teddy ... you going to come?" After hanging up, Lafaro informed Berger that "Teddy" had sent his "kid." Minutes later, an unidentified individual driving the defendant's Corvette arrived at Lafaro's apartment house. Lafaro met him outside. He returned to the apartment momentarily with the two additional ounces of cocaine.

With the exception of Berger's initial phone call, the June 19 transaction was tape recorded by means of a Kell transmitting device concealed in Detective Berger's billfold.

The third transaction took place on June 25, 1986. In a phone conversation held on the evening of that day Berger advised Lafaro that he wanted to purchase five more ounces of cocaine. The two agreed to meet at 10:00 PM. Berger arrived at Lafaro's apartment at 10:25 PM, again equipped with a Kell transmitter. At 10:40 PM, a backup surveillance unit videotaped the defendant arriving in front of Lafaro's apartment house driving a white Toyota. In response to the sound of a car horn, Lafaro went to the window of his second story apartment and yelled, "I'll be right down, Ted." The defendant who was carrying a small white package looked up to the window and waved. Lafaro then left the apartment and let the defendant who was still carrying the package, into the vestibule. Shortly afterward, the defendant returned empty-handed to the Toyota and Lafaro returned to the apartment carrying a clear plastic bag with almost five ounces of cocaine. For several minutes, while defendant waited in the Toyota, Berger and Lafaro haggled over the price of the cocaine. When the price had been set at $7150 and the money counted, Lafaro took the cash and went outside to where the Toyota was parked. He was observed passing something through the open passenger window of the Toyota.

Subsequent to these transactions, Lafaro made certain statements to Berger indicating that either "Teddy" or "Persico" had been his source for the cocaine sold to Berger. Berger testified that on July 18, 1986 Lafaro told him in an unrecorded conversation that "Teddy" was a cocaine source and had supplied the cocaine sold to Berger "the last time" (i.e., June 25, 1986). Berger also testified that on September 24, 1986 Lafaro told him that he had to pay "taxes" to his guy "Persico" who was with "big people in Brooklyn."

Defendant's most substantial arguments on appeal relate to the circumstance that Vincent Lafaro was not called by the People to testify. It is defendant's principal contention that although Lafaro was not called to the witness stand, he was in fact a "star witness" for the prosecution since his extra-judicial declarations, as recounted in the testimony of Detective Berger, were used to secure his conviction. While conceding that there exists no viable hearsay objection to the admission of Lafaro's statements since, a prima facie case of conspiracy having been made out, the statements, made in furtherance of the conspiracy, fell within the co-conspirator exception to the hearsay rule, the defendant maintains that the statements were, nevertheless, inadmissible, because their reception in Lafaro's absence violated the defendant's constitutional right to confront witnesses against him. The issue posed by this appeal then is whether the confrontation clause does require the exclusion of otherwise admissible co-conspirator hearsay when the declarant does not himself testify on the People's case and, therefore, cannot be cross-examined.

The confrontation clause and the various exceptions to the hearsay rule do not co-exist easily, for once it is admitted, as it has been, that a hearsay declarant may be considered a witness within the meaning of the confrontation clause, it follows, as a matter of logic, that all hearsay must be excluded when the declarant is not present to testify. Pragmatism rather than unyielding logic, however, has characterized the relation between the hearsay exceptions and the confrontation clause and in cases where the declarant is unavailable and the hearsay exception is justified by the inherent reliability of the declarations to be admitted thereunder, the admission against the defendant of extra-judicial statements made by an absent declarant has not been found to offend the confrontation rights of the accused. It is reasoned that the principal objective of confrontation, namely, assuring the reliability of the evidence underlying the judgment, is sufficiently protected when the evidence is of a kind reliable by nature.

The courts of this state have never expressed the view that declarations admissible under the co-conspirator exception to the hearsay rule are, as a class, so reliable that their admission will never violate the defendant's constitutionally based right of confrontation. Indeed, in People v. Sanders, 56 N.Y.2d 51, 451 N.Y.S.2d 30, 436 N.E.2d 480 (1982) the Court of Appeals observed, "[A]lthough the coconspirators' exception has been part of the settled law of this State for quite some time (e.g., People v Davis, 56 N.Y. 95; Cuyler v McCartney, 40 NY 221), we need not and do not adopt in this case a rule by which every extrajudicial statement qualifying under this exception to the hearsay rule is admissible at a criminal trial notwithstanding the constitutional right of confrontation" (at 64, 451 N.Y.S.2d 30, 436 N.E.2d 480). Of course, at the time Sanders was decided it was widely thought that the confrontation clause generally required the actual presence of a prosecution witness at trial unless the prosecution could show that the witness was unavailable and that the hearsay to be admitted in the witness's absence, under some exception to the hearsay rule, was reliable. This, in any case, was the rule apparently set forth by the Supreme...