People v. Portis

in admitting, over his objections, statements made by his alleged coconspirators. Inasmuch as each participant is deemed responsible for the acts and declarations of the others engaged in a conspiracy, “any declaration by a conspirator made during the course of and in furtherance of the conspiracy is admissible against a coconspirator as an exception to the hearsay rule” (People v Salko, 47 NY2d 230 , 237 [1979]; see People v Caban, 5 NY3d 143 , 148 [2005]; People v Bac Tran, 80 NY2d 170 , 179 [1992]). The People may not rely upon that evidence, however, without “showing that a prima facie case of conspiracy has been established” (People v Bac Tran, 80 NY2d at 179 ). Therefore, the People were obliged to produce otherwise admissible “proof ‘of an agreement to commit a crime and an overt act towards carrying out that agreement’ ” (People v Nicholas, 118 AD3d 1183 , 1184 [2014], lv denied 24 NY3d 1122 [2015], quoting People v Cancer, 16 AD3d 835 , 839 [2005], lv denied 5 NY3d 826 [2005]; see People v Berkowitz, 50 NY2d 333 , 341 [1980]).

Supreme Court correctly determined that the People met this burden. The indictment alleged that the individuals named therein as the coconspirators had agreed to commit several offenses, but criminal sale of a controlled substance in the second degree was the only underlying crime charged to the jury at defendant’s trial. The People, as such, were required to show that defendant was part of a conspiracy to “knowingly and unlawfully sell[ ] . . .a narcotic drug . . . of an aggregate weight of one-half ounce or more” (Penal Law § 220.41 ^[1]). Extensive electronic and physical surveillance was conducted as part of the investigation into the trafficking ring, and defendant made statements in recorded telephone conversations that “could be received in evidence as party admissions” (People v Caban, 5 NY3d at 151 n). Defendant specifically engaged in a telephone conversation on April 18, 2010 in which he agreed to meet several of his alleged coconspirators and bring his “paperwork” to the meeting.^[1] While defendant was in transit to the meeting, a coconspirator received several telephone calls and made admissible statements “relevant not for [their] truth, but rather as evidence of an agreement to commit the underlying crime” (People v Caban, 5 NY3d at 149 ; see People v Salko, 47 NY2d at 239 ). That coconspirator, in particular, agreed to sell a half-ounce of cocaine to a customer who would arrive in a distinctive vehicle. An investigator further testified that he

observed the arrival of defendant and other coconspirators at the meeting site, as well as the subsequent arrival of the customer and activity consistent with the agreed-upon cocaine sale. Although circumstantial, this evidence was sufficient to make out a prima facie case against defendant (see People v Hudson, 90 AD3d 437 , 438 [2011], lv denied 19 NY3d 974 [2012]; People v Silva, 237 AD2d 216 , 216 [1997], lv denied 89 NY2d 1100 [1997]).

Defendant next contends that the verdict was against the weight of the evidence.^[2] As noted above, a coconspirator sold a half-ounce of cocaine to a customer during a meeting attended by defendant. Indeed, defendant was invited to attend several meetings with the coconspirators and participated in telephone calls regarding their operations. The record contains evidence documenting several large purchases of narcotics by the coconspirators intended for resale, including a May 2010 purchase of over a half-ounce of cocaine by defendant. Further, other intercepted telephone calls and physical surveillance reflected that defendant’s coconspirators attempted to or did sell over a half-ounce of narcotics to customers on more than one occasion. It is far from clear that an acquittal would have been a reasonable outcome given this proof (see People v Romero, 7 NY3d 633 , 643 [2006]; People v Bleakley, 69 NY2d 490 , 495 [1987]). In any case, according due deference to the credibility determinations of the jury, we cannot say that its verdict is against the weight of the evidence (see People v Romero, 7 NY3d at 643-644 ; People v Calderon, 55 AD3d 321 , 322 [2008]; People v Rojas, 281 AD2d 294 , 294 [2001], lv denied 96 NY2d 834 [2001]).

Defendant also challenges the propriety of the Molineux ruling made by Supreme Court, which permitted the use of wiretap evidence documenting defendant’s attendance at meetings with his coconspirators and the contemplated robbery of a drug supplier. Because the indictment provided extensive detail as to the scope and nature of the charged conspiracy, however, evidence of related overt acts was properly admitted “even though they amount [ed] to uncharged crimes” (People v Snagg,