People v. Garcia

160 A.D.2d 812, 554 N.Y.S.2d 260, 1990 N.Y. App. Div. LEXIS 4236

Opinion

— Appeal by the defendant from a judgment of the County Court, Nassau County (Lipp, J., at trial; Wexner, J., at sentence), rendered January 12, 1988, convicting him of conspiracy in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed and the matter is remitted to the County Court, Nassau County, for further proceedings pursuant to CPL 460.50 (5).

We find that the coconspirator’s statements were properly admitted into evidence against the defendant. A review of the record shows that, when the defendant arrived outside of the bar where the drug transaction took place, he telephoned his coconspirator who was inside the bar. The defendant told the coconspirator that he would meet him "in the back * * * and do it back there”. Shortly thereafter, the defendant was observed talking to the confidential police informant and was overheard agreeing to "give the stuff’ to the coconspirator. When the defendant was arrested, a scale was recovered from his person. The scale was shown to be of the type commonly used to weigh small amounts of narcotics.

Under these circumstances, we find that a prima facie case of conspiracy was established independent of the statements of the coconspirator and, accordingly, such statements were properly admitted into evidence (People v Sanders, 56 NY2d 51, 62; People v Salko, 47 NY2d 230, 240).

We have considered the defendant’s remaining contentions and find them to be without merit. Lawrence, J. P., Kunzeman, Rosenblatt and Miller, JJ., concur.