People v. Castillo

223 A.D.2d 481, 637 N.Y.S.2d 84, 1996 N.Y. App. Div. LEXIS 532

Opinion

Judgment, Supreme Court, New York County (Bonnie Wittner, J.), rendered April 18, 1994, convicting defendant, after a jury trial, of conspiracy in the second degree, and sentencing him to a term of 8⅓ to 25 years, unanimously affirmed.

Defendant’s guilt was established by legally sufficient evidence of conduct throughout the events in question demonstrating an intent to participate in the conspiracy (Penal Law § 105.15). Nor was there anything manifestly erroneous or plainly unjustified by the jury’s verdict as would make it against the weight of the evidence (see, People v Bartley, 219 AD2d 566). Defendant’s claim that out-of-court statements of coconspirator Barrera were improperly admitted before the People had laid a foundation that he was unavailable to testify at trial is unpreserved for appellate review, and in any event without merit, inasmuch as Barrera remained a fugitive throughout the trial. The hearsay statements of the coconspirators were properly admitted even though it was not until later in the trial that the People established a conspiracy independent of the statements they sought to admit (cf., People v Bac Tran, 80 NY2d 170,180). Concur—Rosenberger, J. P., Nardelli, Williams, Tom and Mazzarelli, JJ.