OPINION OF THE COURT
Murphy, P. J.
After a jury trial, defendant Salko was convicted of the crimes of (1) conspiracy in the third degree (Penal Law, § 105.05), (2) bribery (Penal Law, former § 200.00), and (3) bribing a witness (Penal Law, § 215.00). For purposes of this [308]*308appeal, it is necessary to explore, at some length, the operative facts underlying defendant’s conviction.
On August 25, 1971, Police Officer Galvin arrested an individual named Ware for possession of heroin. Ware was arraigned on August 26, 1971. At the arraignment, Ware was represented by an attorney named Lindenhauer. However, the notice of appearance read "N.H. Lindenhauer by Mr. Salko”. Max Fruchtman, Lindenhauer’s partner, believed that the notice indicated that the defendant would appear at the arraignment if Lindenhauer was unavailable. The defendant told Assistant District Attorney Rogers that he did go to Ware’s arraignment but a Legal Aid attorney testified that he did not remember if the defendant was present.
On September 7, 1971, Galvin went to court to advise the prosecutor that the drug reports were not completed and that an adjournment of the felony hearing should be requested. At that time, Lindenhauer approached Galvin and wrote in his date book: "An arrangement can be made if its agreeable to you.” Galvin nodded in the affirmative. Lindenhauer then wrote "four figures”. A short time later, Lindenhauer offered to pay $1,500 to Galvin for giving false testimony at Ware’s hearing. Lindenhauer also told Galvin that Ware was a "nice guy” and that the defendant had stated that he (Galvin) was a "good guy”. In the lobby of the courthouse, Galvin, Lindenhauer and Fruchtman encountered the defendant. In a private conversation that ensued with Galvin, the defendant allegedly stated that the police officer should have asked for double the amount that Lindenhauer had offered.
Galvin immediately informed the District Attorney’s office and the Internal Affairs Division of the Police Department of this attempted bribe. On September 10, 1971, the adjourned date of the felony hearing, Galvin had been fitted with a transmitter and a recorder. Thus, his conversation with Lindenhauer in the courthouse corridor was fully recorded. During that conversation, Lindenhauer wrote a series of 14 notes to Galvin in furtherance of his attempt to bribe the officer. In one note, Lindenhauer suggested that Galvin check him (Lindenhauer) out with the defendant. In another note, Lindenhauer agreed to let the defendant hold the $1,500 bribe until Galvin’s testimony was completed. Eventually, Lindenhauer passed the bribe to Galvin and, upon the officer’s signal, Lindenhauer was arrested by his back-up team.
Thereafter, the defendant was arrested and brought before [309]*309Assistant District Attorney Rogers. The defendant admitted that he knew Lindenhauer wished to bribe Galvin. Likewise, he conceded that he had agreed to "check out” Galvin. He also acknowledged, before Rogers, that he had told Galvin to double his payment. The defendant denied that he had received any money as part of the bribery scheme but he did state that he might receive $50 for the "whole thing”. Assistant District Attorney Rogers never asked, with specificity, why the defendant might receive the $50. Prior to defendant Salko’s trial, Lindenhauer died. At trial, it was stipulated that, if Lindenhauer were alive, he would testify that Salko was completely blameless of any action concerning this matter. It was further stipulated that Lindenhauer had been convicted of giving a bribe to Galvin. Lastly, it was agreed that, if Ware testified, he would aver that he did not know defendant Salko and that, on September 10, 1971, he gave Lindenhauer $1,810.
Of the various points raised in defendant’s brief, only two merit discussion. First of all, the defendant contends that the trial court erroneously invoked the coconspirator exception to the hearsay rule. Consequently, the defendant maintains that the trial court should not have admitted into evidence against him (1) Galvin’s unrecorded conversations with Lindenhauer, (2) Galvin’s recorded conversations with Lindenhauer, and (3) Lindenhauer’s notes (7 of 14 recovered) written to Galvin on September 10, 1971. It is defendant’s prime contention that the three items of evidence, set forth above, are admissions by Lindenhauer that should not have been used against him.
Generally, an admission by one defendant is not admissible against a codefendant. (People v Payne, 35 NY2d 22, 27; Richardson Evidence [10th ed], § 232, p 206.) However, it has long been the law in New York that the acts and declarations of one coconspirator which occur while the conspiracy is in progress and which are in furtherance of the common scheme are admissible and are provable as to all other coconspirators as part of the res gestae and as a recognized exception to the hearsay rule. (People v Rastelli, 37 NY2d 240, 244.) A party, seeking to fall within this coconspirator exception to the hearsay rule, must come forward with prima facie evidence that there is a conspiracy and that a particular defendant is a coconspirator. (Voisin v Commercial Mut. Ins. Co., 60 App Div 139, 149.) A conspiracy may be established by circumstantial evidence (People v Van Tassel, 156 NY 561, 564), but the [310]*310declarations of an alleged coconspirator cannot be received for the purpose of proving the conspiracy (Lent v Shear, 160 NY 462, 468).
In this proceeding, Lindenhauer’s notes, his recorded and unrecorded conversations with Officer Galvin are inadmissible against the defendant until the prosecution has made a prima facie showing of a conspiracy between the defendant and Lindenhauer to bribe Galvin. Moreover, that evidentiary data cannot be used to prove the existence of a conspiracy. (Lent v Shear, supra.) The fact of a conspiracy must be established from independent evidence in the record. More specifically, in the factual circumstances of this case, the conspiracy must be proven, if at all through the testimony of Officer Galvin and Assistant District Attorney Rogers.
In the testimony of both Galvin and Rogers, we find an open concession from the defendant that he "checked out” Galvin to determine whether he was receptive to a bribe. There is no real dispute that the defendant also apprised both Galvin and Rogers of Lindenhauer’s prior bribery activity in the courts. In fact, the defendant suggested that Galvin ask for double the amount ($1,500) which had been offered to him by Lindenhauer. The defendant explicitly denied, before Rogers, that he was involved in any bribery scheme and he emphasized that he might have received $50 for the "whole thing”.
In defendant’s statements to Galvin and Rogers, there is no mention that he had entered into any agreement with Lindenhauer to bribe Galvin (Penal Law, § 105.05). The most damaging evidence would seem to be his ambiguous admission that he might receive $50 for the "whole thing”. Since Rogers did not question the defendant any further concerning the possible payment, it is impossible to determine whether the money was to be paid for (1) defendant’s total involvement in a bribery scheme, or (2) his possible criminal facilitation of the bribery scheme (Penal Law, § 115.00), or (3) his services in being available, if not actually present, at Ware’s arraignment.
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OPINION OF THE COURT
Murphy, P. J.
After a jury trial, defendant Salko was convicted of the crimes of (1) conspiracy in the third degree (Penal Law, § 105.05), (2) bribery (Penal Law, former § 200.00), and (3) bribing a witness (Penal Law, § 215.00). For purposes of this [308]*308appeal, it is necessary to explore, at some length, the operative facts underlying defendant’s conviction.
On August 25, 1971, Police Officer Galvin arrested an individual named Ware for possession of heroin. Ware was arraigned on August 26, 1971. At the arraignment, Ware was represented by an attorney named Lindenhauer. However, the notice of appearance read "N.H. Lindenhauer by Mr. Salko”. Max Fruchtman, Lindenhauer’s partner, believed that the notice indicated that the defendant would appear at the arraignment if Lindenhauer was unavailable. The defendant told Assistant District Attorney Rogers that he did go to Ware’s arraignment but a Legal Aid attorney testified that he did not remember if the defendant was present.
On September 7, 1971, Galvin went to court to advise the prosecutor that the drug reports were not completed and that an adjournment of the felony hearing should be requested. At that time, Lindenhauer approached Galvin and wrote in his date book: "An arrangement can be made if its agreeable to you.” Galvin nodded in the affirmative. Lindenhauer then wrote "four figures”. A short time later, Lindenhauer offered to pay $1,500 to Galvin for giving false testimony at Ware’s hearing. Lindenhauer also told Galvin that Ware was a "nice guy” and that the defendant had stated that he (Galvin) was a "good guy”. In the lobby of the courthouse, Galvin, Lindenhauer and Fruchtman encountered the defendant. In a private conversation that ensued with Galvin, the defendant allegedly stated that the police officer should have asked for double the amount that Lindenhauer had offered.
Galvin immediately informed the District Attorney’s office and the Internal Affairs Division of the Police Department of this attempted bribe. On September 10, 1971, the adjourned date of the felony hearing, Galvin had been fitted with a transmitter and a recorder. Thus, his conversation with Lindenhauer in the courthouse corridor was fully recorded. During that conversation, Lindenhauer wrote a series of 14 notes to Galvin in furtherance of his attempt to bribe the officer. In one note, Lindenhauer suggested that Galvin check him (Lindenhauer) out with the defendant. In another note, Lindenhauer agreed to let the defendant hold the $1,500 bribe until Galvin’s testimony was completed. Eventually, Lindenhauer passed the bribe to Galvin and, upon the officer’s signal, Lindenhauer was arrested by his back-up team.
Thereafter, the defendant was arrested and brought before [309]*309Assistant District Attorney Rogers. The defendant admitted that he knew Lindenhauer wished to bribe Galvin. Likewise, he conceded that he had agreed to "check out” Galvin. He also acknowledged, before Rogers, that he had told Galvin to double his payment. The defendant denied that he had received any money as part of the bribery scheme but he did state that he might receive $50 for the "whole thing”. Assistant District Attorney Rogers never asked, with specificity, why the defendant might receive the $50. Prior to defendant Salko’s trial, Lindenhauer died. At trial, it was stipulated that, if Lindenhauer were alive, he would testify that Salko was completely blameless of any action concerning this matter. It was further stipulated that Lindenhauer had been convicted of giving a bribe to Galvin. Lastly, it was agreed that, if Ware testified, he would aver that he did not know defendant Salko and that, on September 10, 1971, he gave Lindenhauer $1,810.
Of the various points raised in defendant’s brief, only two merit discussion. First of all, the defendant contends that the trial court erroneously invoked the coconspirator exception to the hearsay rule. Consequently, the defendant maintains that the trial court should not have admitted into evidence against him (1) Galvin’s unrecorded conversations with Lindenhauer, (2) Galvin’s recorded conversations with Lindenhauer, and (3) Lindenhauer’s notes (7 of 14 recovered) written to Galvin on September 10, 1971. It is defendant’s prime contention that the three items of evidence, set forth above, are admissions by Lindenhauer that should not have been used against him.
Generally, an admission by one defendant is not admissible against a codefendant. (People v Payne, 35 NY2d 22, 27; Richardson Evidence [10th ed], § 232, p 206.) However, it has long been the law in New York that the acts and declarations of one coconspirator which occur while the conspiracy is in progress and which are in furtherance of the common scheme are admissible and are provable as to all other coconspirators as part of the res gestae and as a recognized exception to the hearsay rule. (People v Rastelli, 37 NY2d 240, 244.) A party, seeking to fall within this coconspirator exception to the hearsay rule, must come forward with prima facie evidence that there is a conspiracy and that a particular defendant is a coconspirator. (Voisin v Commercial Mut. Ins. Co., 60 App Div 139, 149.) A conspiracy may be established by circumstantial evidence (People v Van Tassel, 156 NY 561, 564), but the [310]*310declarations of an alleged coconspirator cannot be received for the purpose of proving the conspiracy (Lent v Shear, 160 NY 462, 468).
In this proceeding, Lindenhauer’s notes, his recorded and unrecorded conversations with Officer Galvin are inadmissible against the defendant until the prosecution has made a prima facie showing of a conspiracy between the defendant and Lindenhauer to bribe Galvin. Moreover, that evidentiary data cannot be used to prove the existence of a conspiracy. (Lent v Shear, supra.) The fact of a conspiracy must be established from independent evidence in the record. More specifically, in the factual circumstances of this case, the conspiracy must be proven, if at all through the testimony of Officer Galvin and Assistant District Attorney Rogers.
In the testimony of both Galvin and Rogers, we find an open concession from the defendant that he "checked out” Galvin to determine whether he was receptive to a bribe. There is no real dispute that the defendant also apprised both Galvin and Rogers of Lindenhauer’s prior bribery activity in the courts. In fact, the defendant suggested that Galvin ask for double the amount ($1,500) which had been offered to him by Lindenhauer. The defendant explicitly denied, before Rogers, that he was involved in any bribery scheme and he emphasized that he might have received $50 for the "whole thing”.
In defendant’s statements to Galvin and Rogers, there is no mention that he had entered into any agreement with Lindenhauer to bribe Galvin (Penal Law, § 105.05). The most damaging evidence would seem to be his ambiguous admission that he might receive $50 for the "whole thing”. Since Rogers did not question the defendant any further concerning the possible payment, it is impossible to determine whether the money was to be paid for (1) defendant’s total involvement in a bribery scheme, or (2) his possible criminal facilitation of the bribery scheme (Penal Law, § 115.00), or (3) his services in being available, if not actually present, at Ware’s arraignment. Under a view of the testimony most favorable to the defendant, his allusion to the possible receipt of a $50 remuneration could well have been made with regard to his legitimate fee for being available at Ware’s arraignment. This highly ambiguous remark of the defendant can thus be interpreted as being consistent with innocent conduct on his part. Hence, this particular piece of circumstantial evidence cannot serve as a predicate for finding him to be a coconspirator. [311]*311(People v Williams, 35 NY2d 783; cf. People v Weiss, 290 NY 160, 163.)
In the Rastelli case (37 NY2d 240, supra), that defendant was directly named at trial as a conspirator by his coconspirators. Likewise, the independent evidence indicated that Rastelli was a direct participant in the criminal usury conspiracy. There is no direct testimony herein either linking the defendant with the alleged conspiracy or with the bribe offered to Galvin. Upon the independent evidence adduced at this trial, a prima facie demonstration was not made that the defendant was engaged in a conspiracy with Lindenhauer to bribe Galvin. Hence, the tapes and the other admissions of Lindenhauer should not have been received against the defendant.
The second question reached on appeal is whether, in the absence of Lindenhauer’s admissions, there was sufficient evidence in the record to convict the defendant on any one of the three counts.
Conspiracy in the third degree is defined as follows (Penal Law, § 105.05): "A person is guilty of conspiracy in the third degree when, with intent that conduct constituting a felony be performed, he agrees with one or more persons to engage in or cause the performance of such conduct.” As was discussed above, the testimony of Galvin and Rogers, relating to their direct conversations with the defendant, fails to reveal any "agreement” between the defendant and Lindenhauer to bribe Galvin. Moreover, their testimony does not show that the defendant ever "intended” that Galvin be bribed. Therefore, the prosecution wholly failed to establish the two major elements in the crime of conspiracy, namely, (1) an agreement between the defendant and Lindenhauer to bribe Galvin and (2) the defendant’s criminal intention that Galvin be bribed. With regard to the crimes of bribery (Penal Law, former § 200.00) and bribing a witness (Penal Law, § 215.00), let it merely be reiterated that the record is devoid of any evidence that defendant conferred, offered or agreed to confer any benefit upon Galvin to affect his testimony.
It may well be that the defendant should have been convicted of criminal facilitation (Penal Law, § 115.00) in aiding Lindenhauer in his attempt to bribe Galvin. However, that issue is not before this court.
Since the quantum of proof is insufficient to prove defendant’s guilt beyond a reasonable doubt on any one of the three charges, the judgment of conviction, Supreme Court, New [312]*312York County (Rosenberger, J.), rendered April 11, 1975, convicting him after a jury trial of (1) conspiracy in the third degree (Penal Law, § 105.05), (2) bribery (Penal Law, former § 200.00), and (3) bribing a witness (Penal Law, § 215.00), should be reversed, on the law, and these three counts should be dismissed.