People v. Salko
| Decision Date | 07 June 1979 |
| Citation | 391 N.E.2d 976,417 N.Y.S.2d 894,47 N.Y.2d 230 |
| Parties | , 391 N.E.2d 976 The PEOPLE of the State of New York, Appellant, v. Matthew SALKO, Respondent. |
| Court | New York Court of Appeals Court of Appeals |
This appeal raises an evidentiary question as to the scope and applicability of the exception to the hearsay rule permitting introduction of the declarations of a person engaged in a conspiracy for the purpose of establishing a coconspirator's complicity in the criminal agreement as well as in the substantive crimes for which the conspiracy was formed.
On August 26, 1971, Eddie Ware and two codefendants were arraigned on a heroin possession charge stemming from an arrest made the previous day by Officer Joseph Galvin. After bail was set, the case was adjourned until September 7 for a preliminary hearing pending the return of a laboratory analysis of the substance confiscated as an incident to the arrest. At the arraignment, Ware was represented by an attorney by the name of N. Henry Lindenhauer, while his codefendants were represented by an attorney from Legal Aid.
On September 7, the scheduled date of the preliminary hearing, Officer Galvin, after advising the District Attorney that the laboratory analysis report had not been completed, sat down in the courtroom to await the calling of the case. While Galvin sat there, Lindenhauer, whom Galvin had never met before, approached and took a seat immediately to the left of Galvin. He then nudged Galvin and informed him that he represented Eddie Ware and that he knew Ware for a long time and that Ware was a "nice guy". To this statement Galvin said nothing, but nodded. Lindenhauer then opened a briefcase he had resting on his knees and wrote something in a black book, which Galvin believed was a date book. When his attention was directed by Lindenhauer to the writing, Galvin observed the following statement: "An arrangement can be made if its agreeable to you." Again Galvin nodded and again Lindenhauer wrote something in the book: the numeral "4" and the printed word "Figures" immediately below the numeral. After nodding his head, Galvin told Lindenhauer that he was going out into the hallway for a cigarette.
Galvin immediately made his way to the clerk's office and called his office to report what he believed was a bribe offer. His superior instructed him to play along with Lindenhauer and that the Internal Affairs Division and the District Attorney's office would be notified. Shortly after Galvin returned to the courtroom, Eddie Ware's case was called and adjourned until September 10 because of the unavailable laboratory analysis report.
Upon exiting the courtroom, Galvin was instructed by Lindenhauer to wait for him by the elevators while he spoke to his client and his law partner, Max Fruchtman. At the conclusion of their conversation with Ware, Lindenhauer and Fruchtman approached Galvin; Lindenhauer introduced Fruchtman and requested that he hold his briefcase and stand out in the hallway while he, Lindenhauer, spoke with Galvin. He then informed Galvin that if he would change his testimony concerning Eddie Ware on September 10, the date to which the case had been adjourned, he would give him $1,500. Galvin responded that he would and Lindenhauer reiterated that Eddie Ware was a "nice guy" and that Mattie Salko had said that he, Galvin, was a "good guy". Without more, Lindenhauer signaled Fruchtman to return and the trio entered the elevator.
When the elevator doors opened on the first floor, there stood defendant Salko, an attorney whom Galvin had observed around the courthouse but did not know personally. Defendant stepped forward and inquired of Galvin: "Are you Galvin?" When Galvin responded affirmatively, defendant motioned Lindenhauer and Fruchtman to the side and told Galvin: "Listen, you can make an arrangement with these two guys", and that "(w)hatever figure they give you, times it by two because that's what they're getting from their clients." Galvin replied "yeah" and defendant nodded his head signaling Lindenhauer that Galvin was "okay". At this juncture, Galvin said goodbye to defendant and departed, observing on his way out defendant approach and engage Lindenhauer and Fruchtman in conversation.
The following day, on September 8, Galvin met with Assistant District Attorney Frank Rogers and revealed the content of his conversations with defendant and Lindenhauer. Following Rogers' instructions, Galvin reported to the Internal Affairs Division on the morning of September 10 and was equipped with a Kel transmitter and a Minifon recorder. While at the courthouse awaiting the hearing, Lindenhauer warned Galvin that the District Attorney was going to try to make Galvin testify to the events as they actually occurred. Galvin indicated his awareness of this problem and asked Lindenhauer what he wanted him to do. Lindenhauer motioned him over to a window, rested his briefcase on the ledge, and wrote a note stating: "I have the money for you, you'll get it after you testify." To this Galvin responded that he would not take the stand unless he had the money first. Attempting to convince Galvin of his trustworthiness, Lindenhauer wrote another note urging that Galvin "(c)heck (him) with Mattie Salko." Galvin took this occasion to inform Lindenhauer of his prior conversation with defendant, specifically the latter's advice as to the fee to be charged. Lindenhauer laughed, wrote another note indicating that he had $1,500 for Galvin, and took out a billfold containing hundred dollar bills through which he fanned for the benefit of Galvin.
When Galvin continued to balk over not being paid in advance, Lindenhauer suggested in another note that he "let Matty Salko hold it". Lindenhauer left to locate defendant, but returned when he could not find him. Frustrated in this attempted compromise, Lindenhauer, after coaching Galvin to "lay it down strong" that the search of Eddie Ware was improper, finally passed the money to Galvin. Immediately after the transfer, Lindenhauer was arrested.
As a result of Lindenhauer's arrest, the District Attorney sought to question defendant, who after having been given his constitutional rights, agreed to speak with him. Defendant admitted that Lindenhauer had on two occasions asked him to "check out" Galvin to determine whether a deal could be made with him and that he had agreed to do so. He also admitted that he knew Lindenhauer intended to bribe Galvin. He further admitted that he had arranged for a meeting with Lindenhauer in the courthouse prior to Eddie Ware's hearing on September 7, but that he arrived late and met Lindenhauer, Fruchtman and Galvin exiting from the elevator. Defendant confirmed that he indicated to Galvin that Lindenhauer and Fruchtman were "good guys" and could be dealt with, as well as his advice that Galvin double the fee. His signal to Lindenhauer that Galvin was a "good guy" and could be dealt with was also admitted by defendant. Finally, although defendant maintained that he had informed Lindenhauer that he did not want a direct part in the deal, he admitted when asked if he expected to receive any money for his activities that he might receive $50 for the "whole thing".
Defendant and Lindenhauer were indicted and charged in five counts with: conspiracy in the third degree (former Penal Law, § 105.05, now conspiracy in the fifth degree (conspiracy to commit the crimes of bribery and bribing a witness)); conspiracy in the fourth degree (former Penal Law, § 105.00, now conspiracy in the sixth degree (conspiracy to commit the crime of criminal facilitation)); bribery (former Penal Law, § 200.00, now bribery in the second degree); bribing a witness (Penal Law, § 215.00); and criminal facilitation in the second degree (former Penal Law, § 115.00, now criminal facilitation in the fourth degree). The case was severed and Lindenhauer was tried and convicted of bribery and bribing a witness. The conspiracy and criminal facilitation counts were dismissed on the People's motion prior to trial.
On defendant's trial, 1 the court, upon motion by defendant, dismissed at the close of defendant's case those counts of the indictment charging defendant with conspiracy to commit criminal facilitation and with the substantive crime of criminal facilitation. The remaining three counts were submitted to the jury, which returned a verdict of guilty on each count.
On appeal taken by defendant, the Appellate Division reversed, on the law, the judgment of conviction and dismissed the indictment. Leave to appeal to this court was granted to the People by a Justice of the Appellate Division. There should be a reversal.
In reaching its determination, the Appellate Division concluded that the trial court had improperly invoked the coconspirators' exception to the hearsay rule in permitting the introduction of certain evidence: to wit, Lindenhauer's unrecorded conversations with Galvin; his recorded conversations with Galvin; and several of the notes written by Lindenhauer to Galvin. This conclusion was anchored upon the court's finding that the People had failed to establish a prima facie case of conspiracy by evidence independent of the declarations of Lindenhauer. We disagree.
As a general rule, an admission made by one defendant is not binding upon a codefendant. (People v. Payne, 35 N.Y.2d 22, 27, 358 N.Y.S.2d 701, 705, 315 N.E.2d 762, 765; People v. Jackson, 18 N.Y.2d 516, 519, 277 N.Y.S.2d 263, 265, 223 N.E.2d 790, 791; Richardson, Evidence (10th ed.), § 232.) The rule is otherwise, however, where codefendants are partners in crime such that each defendant can be viewed as acting as an agent for each defendant engaged in the criminal partnership. (Anderson v. United States, ...
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