People v. Thompson

• Decision Date: 19 October 1992
• Citation: 186 A.D.2d 768,589 N.Y.S.2d 68
• Parties: The PEOPLE, etc., Respondent, v. Nancy THOMPSON, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 68

589 N.Y.S.2d 68

186 A.D.2d 768

The PEOPLE, etc., Respondent, v. Nancy THOMPSON, Appellant.

Supreme Court, Appellate Division Second Department.

Oct. 19, 1992.

Kevin Costello, Flushing, for appellant.

Charles J. Hynes, Dist. Atty., Brooklyn (Jay M. Cohen and Seth M. Lieberman, of counsel, Rudolph A. Pyatt, on the brief), for respondent.

Before BRACKEN, J.P., and HARWOOD, MILLER and COPERTINO, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Hall, J.), rendered March 5, 1991, convicting her of criminal possession of a controlled substance in the third degree and criminal possession of a controlled substance in the fourth degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

We disagree with the defendant's contention that the testimony of an undercover police officer concerning the actions and statements of the codefendant was inadmissible as hearsay. The challenged testimony established that as the officer approached an abandoned building utilized as a "peephole location" from which drug transactions were effected, he observed the codefendant motioning with his hands and directing prospective purchasers to the peephole by stating "the hole is working". We find that the codefendant's statements accompanied equivocal conduct which could be interpreted by reference to the content of the statements (see, People v. Sostre, 70 A.D.2d 40, 45, 418 N.Y.S.2d 662, affd. 51 N.Y.2d 958, 435 N.Y.S.2d 702, 416 N.E.2d 1038; cf., People v. Clark, 128 A.D.2d 270, 272, 516 N.Y.S.2d 348). Therefore, the statements constituted a verbal act and part of the criminal res gestae establishing the theory of "acting in concert" as charged in the indictment (see, People v. Ayala, 142 A.D.2d 147, 165-166, 534 N.Y.S.2d 1005, affd. 75 N.Y.2d 422, 554 N.Y.S.2d 412, 553 N.E.2d 960; People v. Howton, 162 A.D.2d 964, 557 N.Y.S.2d 780; cf., People v. Crea, 126 A.D.2d 556, 558, 510 N.Y.S.2d 876). Accordingly, the challenged testimony does not constitute hearsay but, rather, describes utterances of the codefendant which form part of the transaction which it interprets (see, People v. Sostre, supra ). In any event, the challenged testimony provided necessary background information which enhanced the jury's understanding of how the peephole operation was conducted (see, People v. Montanez, 41 N.Y.2d 53, 390 N.Y.S.2d 861 359 N.E.2d 371). As such, the trial court did not...