We agree with the majority of the court that the requirements of proof preliminary to the admission as dying declarations of certain statements made by the victim of the alleged homicide, Mary Liccione, subsequent to the fatal assault upon her were properly established by evidence that she was at the time of making such statements in extremis and under a sense of impending death, without any hope of recovery. However, no wider latitude can be given dying declarations in applying the rules of evidence as to competency than properly would be given testimony of a sworn witness. Several witnesses including neighbors, police officers and relatives of the victim testified to statements of the alleged assailant, Watson, made to the victim at the time of the assault. She related to them, "that nigger [the alleged assailant] told me he [her husband] paid him, he paid”; "he told me' my husband told him to do this”; "he met the guy at work, they planned it at work”. It was also testified that she stated, "he made that nigger do this to me”; "my husband had me killed”; and referring to defendant, "see what that disgraceful man did to me”. The statements of the alleged assailant made to the victim and received as dying declarations of the victim directly implicating the husband defendant as a coconspirator are incompetent as against him and would be so if the victim had testified to them under oath. They could not be deemed made to advance the purpose of or in furtherance of the common plan of the conspirators and the object of the conspiracy and were merely narrative declarations of past dealings between the assailant and the defendant. Also from the record it does not appear that the victim had any source of knowledge as to her husband’s participation in the murderous assault except the disclosures of the coconspirator and therefore her expressed opinions and conclusions as to his connection with the crime were likewise incompetent *324as expressions of mere suspicions or surmise (People v Shaw, 63 NY 36, 40).
In order to render the acts and declarations of one conspirator admissible against another it has been held uniformly in this State that such acts and declarations must occur while the conspiracy is in progress and must be in furtherance of its purpose or object and the common plan of those engaged in the joint criminal enterprise (People v Rastelli, 37 NY2d 240, 244; People v Fiore, 12 NY2d 188; People v Luciano, 277 NY 348, 358; People v Connolly, 253 NY 330, 340; People v Becker, 215 NY 126, 148; People v McKane, 143 NY 455, 470; Garnsey v Rhodes, 138 NY 461, 465). The object and purpose of the conspiracy was to have the conspirator, Watson, kill the victim and any act or declaration of his having for its purpose that objective and the achievement of that scheme was within the scope of the execution of the conspiracy and chargeable to both conspirators. Each party to the joint criminal enterprise was for the purpose of attaining the common objective the agent of the other.
The narration by the assailant, Watson, to the victim of the circumstances under which he met defendant, when the assault had been planned, where it had been planned, and the arrangements entered into between the defendant and him, while made during the course of the assault clearly was not made in pursuance of the original concerted plan and for the promotion of the common objective. Rather, the declarations constituted a gratuitous relation of events occurring some time in the past and were improperly received as an unsworn statement offered to prove the truth of the very damaging matter presented in it. As statements of past occurrences not any part of the events occurring at the time of the assault, they could not be deemed part of the res gestae (see People v Davis, 56 NY 95, 102, 103).
People v Rastelli (37 NY2d 240, supra) cited in the majority opinion to support the competency of the statements directly implicating the defendant as a coconspirator is readily distinguishable from the factual situation presented here. In pursuance of a conspiracy to collect usurious interest on a personal loan one conspirator while discussing a plan for repayment involving the victim’s aid in securing other loan victims, related the proposed split of interest payments among the conspirators. The explanation included a reference to the defendant Rastelli as the one receiving the highest interest *325payment " 'because it’s his money’ The plan presented to the victim in Rastelli for repayment contemplated his participation in the loan sharking conspiracy and in securing his acceptance of the plan, the split of interest payments including the payment to Rastelli was outlined to him. The statements made during the negotiations with the victim were made to induce his participation and clearly were in furtherance of the objectives of the illegal conspiracy. Such a factual situation is not presented here.
In view of the highly emotional and prejudicial character of the testimony relating to the dying declarations of the victim and its likely impact on the jury, there is no reasonable basis for a finding that there is no significant probability that the jury would have acquitted the defendant if the dying declarations were not admitted.
The judgment of conviction should be reversed and a new trial granted.
Moule and Witmer, JJ., concur with Simons, J.; Marsh, P. J., and Dillon, J., dissent and vote to reverse the judgment and grant a new trial in an opinion by Marsh, P. J.
Judgment affirmed.