People v. Ardito

OPINION OF THE COURT Carro, J. We are substantially in agreement with the statement of the facts set forth by Justice Bloom in his dissent, as we are with his conclusions on matters other than whether a prima facie case of a conspiracy to commit criminal usury was established. We find that the prosecution never established, prima facie, the existence of that conspiracy without recourse to the challenged statements. Therefore, the [145] out-of-court declarations of Tutino, the alleged coconspirator and accomplice, to the witness Sanchez, made out of the presence of appellant, were never rendered admissible against appellant, and their receipt was error. Further, without these declarations, the prosecution must fail and the indictment should be dismissed. It is also not necessary to consider whether the record discloses evidence sufficient to corroborate those declarations, since, as they were not admissible, there remained nothing to corroborate. Appellant Ardito and his original codefendants, Tutino and Salzarulo, were charged in a two-count indictment with acting in concert to commit the crimes of criminal usury in the first degree and grand larceny in the first degree. The indictment contained no conspiracy count. Subsequent to the selection of the jury in Ardito’s trial, the People made an offer of proof for the purpose of establishing that a prima facie case existed of a conspiracy between Ardito and Tutino, through the direct testimony of Sanchez. Thus the court would permit hearsay evidence of the declarations of the alleged coconspirator, Tutino, as being made in furtherance of the supposedly established conspiracy. The Assistant District Attorney advised the court that the People would call one Richard Sanchez to the stand, and he would testify that Tutino took him to see Ardito and they participated in a three-way conversation in which Ardito agreed to lend him money at a usurious rate of interest. “the court: Will Mr. Sanchez at that point testify that Mr. Ardito participated in that conversation? “mr. iacovetta: And he will also say — “the court: Yes or no “mr. iacovetta: Yes, he will. And he will also say that unequivocally at that first conversation, Mr. Ardito, in the presence of Sanchez and Tutino, acknowledged that the money which was changing hands * * * Mr. Sanchez will state unequivocally the understanding was that this was Mr. Ardito’s money that Mr. Sanchez was receiving and that he would have to pay the interest to Mr. Tutino every week * * * [146] “mr. iacovetta: * * * it is obvious that Mr. Sanchez’ own testimony is going to be there. Other than that, there is really no testimony in this case. “the court: Other than Sanchez? “mr. iacovetta: No corroboration or confirmation that Mr. Ardito did, in fact, get money or receive money.” In his opening statement the prosecutor told the jury that, when Sanchez was introduced to Ardito by Tutino, he borrowed a sum of money from Ardito and a usurious rate of interest was agreed upon between Ardito, Tutino and Sanchez. He then emphasized: “Mr. Sanchez will tell you from his own mouth that he borrowed this money from Mr. Ardito and Mr. Tutino acting together, that he paid them interest at two percent a week for a total of one hundred and four percent a year.” The People’s first witness was Richard Sanchez. He testified about meeting Ardito for the first time aboard Ardito’s boat in the company of Tutino. “Q. Whose idea was it to go to that particular boat? “A. Mr. Tutino * * * “Q. Before having that conversation with Mr. Tutino, had you ever been on that boat before? “A. No. “Q. Had you ever met Mr. Ardito before? “A. No *** “Q. How long did you stay on that boat? “A. Three minutes. “Q. During those three minutes what happened, what did you do, if anything? “A. I received money from Mr. Tutino * * * “Q. And who was present when Mr. Tutino gave you that money? “A. Mr. Tutino and myself * * * “Q. After that he introduced you to Mr. Ardito? “A. He happened to come up. [147] “Q. Was Mr. Ardito present at any time when Mr. Tutino was talking to you about the amount of money or interest on the money or the fact this was Buster’s money? “A. No.” Counsel for the defendant objected several times and moved for mistrial. The application was denied. Thus the testimony of the People’s only witness had failed to meet their expectations and had brought their case down with those expectations. As the prosecutor himself had predicted, “Other than that [Sanchez’ testimony], there is really no testimony in this case * * * No corroboration or confirmation that Mr. Ardito did, in fact, get [give?] money or receive money”. As it became clear that the People would not be able to make out a prima facie case of conspiracy, it became also clear that there was insufficient evidence, independent of Tutino’s declarations to Sanchez, to support the charge that Ardito loaned Sanchez money at a usurious rate of interest and that this was part of a scheme and business of making and collecting usurious loans. A declaration by a coconspirator during the course of and in furtherance of the conspiracy is admissible against another coconspirator, as an exception to the hearsay rule (People v Rastelli, 37 NY2d 240, 244), and it is not necessary, in order to make such proof competent, that the conspiracy be charged in the indictment (People v Luciano, 277 NY 348, 358). However, this evidence may be admitted only upon a showing that a prima facie case of conspiracy has been established (People v Salko, 47 NY2d 230, 237; People v Rastelli, supra). “Of course, the determination whether a prima facie case of conspiracy has been established must be made without recourse to the declarations sought to be introduced” (People v Salko, supra, at p 238). Without Tutino’s declarations to Sanchez, the People in their attempt to prove appellant’s guilt of the substantive crime of criminal usury in the first degree have only Sanchez’ testimony that he borrowed money from and made payments to Tutino, the tapes of Ardito’s conversations with Tutino, and Ardito’s four “fortuitous” appearances. The taped conversations are vague (perhaps deliberately so) and suspicious. But mere vagueness and suspicion [148] do not rise to the level of evidence, and these conversations do not rise to the level of the proof required to permit the submission of these questions to a jury. They are not aided in this endeavor by those four appearances by appellant at about the time of Sanchez’ meetings with others in his attempts to obtain funds. In no way do they supply evidence of Ardito’s participation in a usurious loan or in a scheme or business of making such loans. Had Sanchez testified, as hoped, that Ardito had passed him the money on the boat or at least had been present at the time, a case would have been made out. But Ardito was never present when words were uttered, or actions taken signifying culpability. The judgment of the Supreme Court, Bronx County (Goldfluss, J.), rendered on October 1, 1980, convicting defendant-appellant upon a jury verdict of criminal usury in the first degree and sentencing him to a term of 5 to 15 years, should be reversed, on the law, and the indictment should be dismissed.