The People of the State of New York, Respondent, v. Edgar Castillo, Appellant

The People of the State of New York, Respondent, v Edgar Castillo, Appellant. [637 NYS2d 84] [MAJORITY] Judgment, Supreme Court, New York County (Bonnie Wittner, J.), rendered April 18, 1994, convicting defendant, after a jury trial, of conspiracy in the second degree, and sentencing him to a term of 8⅓ to 25 years, unanimously affirmed. Defendant’s guilt was established by legally sufficient evidence of conduct throughout the events in question demonstrating an intent to participate in the conspiracy (Penal Law § 105.15). Nor was there anything manifestly erroneous or plainly unjustified by the jury’s verdict as would make it against the weight of the evidence (see, People v Bartley, 219 AD2d 566). Defendant’s claim that out-of-court statements of coconspirator Barrera were improperly admitted before the People had laid a foundation that he was unavailable to testify at trial is unpreserved for appellate review, and in any event without merit, inasmuch as Barrera remained a fugitive throughout the trial. The hearsay statements of the coconspirators were properly admitted even though it was not until later in the trial that the People established a conspiracy independent of the statements they sought to admit (cf., People v Bac Tran, 80 NY2d 170,180). Concur—Rosenberger, J. P., Nardelli, Williams, Tom and Mazzarelli, JJ.