Opinion
Decided May 6, 1986
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, Harold Baer, Jr., J.
Ivan S. Fisher for appellant. Robert M. Morgenthau, District Attorney (Mark Dwyer of counsel), for respondent.
MEMORANDUM.
The order of the Appellate Division should be affirmed.
Through the introduction of the defendant's statements to the undercover officer, the People presented a prima facie case that defendant arranged a meeting between the officer and a dealer in illegal licenses, that there was an illicit agreement constituting a felony, that defendant was very familiar with the workings of it and that the defendant intended to be paid for his referral. Once the prima facie case was established, the People could introduce the statements of the dealer to bolster other proof of the defendant's membership in the conspiracy (People v Ardito, 86 A.D.2d 144, affd 58 N.Y.2d 842; People v Sanders, 56 N.Y.2d 51, 62; People v Berkowitz, 50 N.Y.2d 333, 341; People v Salko, 47 N.Y.2d 230, 240, remittitur amended 47 N.Y.2d 1010; Barker, Evidence, 34 Syracuse L Rev 261, 289). Taken in the light most favorable to the People, this evidence was sufficient to submit the charge of conspiracy in the fifth degree to the jury (Penal Law § 105.05; People v Berkowitz, supra; People v Salko, supra; People v Rastelli, 37 N.Y.2d 240, cert denied 423 U.S. 995; cf. People v Ardito, supra; People v Malagon, 50 N.Y.2d 954).
Furthermore, there is no substance to the defendant's claim that the Trial Judge abused his discretion in electing not to charge entrapment. The defendant was neither actively induced to engage in criminal activity (see, e.g., People v Thompson, 47 N.Y.2d 940; People v Mapp, 47 N.Y.2d 939; People v Seale, 47 N.Y.2d 923), nor was any evidence presented suggesting that the defendant had no predisposition to commit this crime (e.g., People v McGee, 49 N.Y.2d 48, cert denied sub nom. Quamina v New York, 446 U.S. 942; 1 CJI [NY] 40.05, at 924).
Chief Judge WACHTLER and Judges MEYER, SIMONS, KAYE, ALEXANDER, TITONE and HANCOCK, JR., concur.
On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 N.Y.CRR 500.4), order affirmed in a memorandum.