he or she will testify and the hearsay will be admitted. If the declarant is unavailable, the hearsay will be admitted anyway, provided it is (Id. at reliable.” 349.) The Court of Appeals has never expressly considered whether the Confrontation Clause of the New York Constitution requires that the coconspirator statement must be shown to be reliable if the declarant is unavailable; however, in (93 NY2d 620 [1999]), decided after the Court cited with People v James Persico, approval the United States Supreme in that court Bourjaily, Court’s holding “ ‘a need not independently inquire into . . . of a coconspirator statement reliability’ ” before admitting it into evidence. (James, 93 NY2d at 634.) is derived from (5 NY3d at 149 [2005] Subdivision (2) People v Caban to the conspiracy of [“with respect charge, Garcia’s acceptance defendant’s solicitation to murder Ortiz was relevant not for its truth, but rather as evidence of an agreement to commit the underlying crime—itself an essential element of the crime of conspiracy. In other words, whether or not Garcia in fact killed Ortiz, his acceptance of invitation to do so was a verbal act which rendered defendant’s defendant and his coconspirators culpable for the inchoate crime of conspiracy, even if the planned substantive crime never came to fruition”]). Subdivision (3) is derived from (12 NY2d 188, 200 [1962] People v Fiore a conspiracy is shown, or evidence on the subject given sufficient for the [“ ‘When jury, then the acts and declarations of the conspirators, in furtherance of its purpose and object, are competent, and in a case like this it is not necessary, in order to make such proof competent, that the conspiracy should be charged in the indictment’ ” (citations omitted)]).
he or she will testify and the hearsay will be admitted. If the declarant is unavailable, the hearsay will be admitted anyway, provided it is reliable.” (Id. at 349.) The Court of Appeals has never expressly considered whether the Confrontation Clause of the New York Constitution requires that the coconspirator statement must be shown to be reliable if the declarant is unavailable; however, in People v James (93 NY2d 620 [1999]), decided after Persico, the Court cited with approval the United States Supreme Court’s holding in Bourjaily, that “ ‘a court need not independently inquire into . . . reliability’ ” of a coconspirator statement before admitting it into evidence. (James, 93 NY2d at 634.) Subdivision (2) is derived from People v Caban (5 NY3d at 149 [2005] [“with respect to the conspiracy charge, Garcia’s acceptance of defendant’s solicitation to murder Ortiz was relevant not for its truth, but rather as evidence of an agreement to commit the underlying crime—itself an essential element of the crime of conspiracy. In other words, whether or not Garcia in fact killed Ortiz, his acceptance of defendant’s invitation to do so was a verbal act which rendered defendant and his coconspirators culpable for the inchoate crime of conspiracy, even if the planned substantive crime never came to fruition”]). Subdivision (3) is derived from People v Fiore (12 NY2d 188, 200 [1962] [“ ‘When a conspiracy is shown, or evidence on the subject given sufficient for the jury, then the acts and declarations of the conspirators, in furtherance of its purpose and object, are competent, and in a case like this it is not necessary, in order to make such proof competent, that the conspiracy should be charged in the indictment’ ” (citations omitted)]).
8.09_COCONSPIRATOR%20STATEMENT.docx