Opinion
October 19, 1992
Appeal from the Supreme Court, Kings County (Hall, J.).
Ordered that the judgment is affirmed.
We disagree with the defendant's contention that the testimony of an undercover police officer concerning the actions and statements of the codefendant was inadmissible as hearsay. The challenged testimony established that as the officer approached an abandoned building utilized as a "peephole location" from which drug transactions were effected, he observed the codefendant motioning with his hands and directing prospective purchasers to the peephole by stating "the hole is working". We find that the codefendant's statements accompanied equivocal conduct which could be interpreted by reference to the content of the statements (see, People v Sostre, 70 A.D.2d 40, 45, affd 51 N.Y.2d 958; cf., People v Clark, 128 A.D.2d 270, 272). Therefore, the statements constituted a verbal act and part of the criminal res gestae establishing the theory of "acting in concert" as charged in the indictment (see, People v Ayala, 142 A.D.2d 147, 165-166, affd 75 N.Y.2d 422; People v Howton, 162 A.D.2d 964; cf., People v Crea, 126 A.D.2d 556, 558). Accordingly, the challenged testimony does not constitute hearsay but, rather, describes utterances of the codefendant which form part of the transaction which it interprets (see, People v Sostre, supra). In any event, the challenged testimony provided necessary background information which enhanced the jury's understanding of how the peephole operation was conducted (see, People v Montanez, 41 N.Y.2d 53). As such, the trial court did not improvidently exercise its discretion in admitting this evidence.
Viewing the evidence in the light most favorable to the People (see, People v Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see, CPL 470.15).
We find the defendant's remaining contentions to be unpreserved for appellate review (see, People v Thomas, 50 N.Y.2d 467, 471; People v Udzinski, 146 A.D.2d 245, 248). Bracken, J.P., Harwood, Miller and Copertino, JJ., concur.