Opinion
March 20, 1995
Appeal from the Supreme Court, Suffolk County (McInerney, J.).
Ordered that the judgment as to Mahesh K. Singh is modified, on the law, by vacating the term of six months imprisonment and five years probation imposed upon the conviction of conspiracy in the fourth degree and resentencing him to a definite term of six months imprisonment to run concurrently with the sentence of imprisonment imposed upon his conviction of attempted criminal possession of stolen property in the second degree; as so modified, the judgment as to Mahesh K. Singh is affirmed; and it is further,
Ordered that the judgment as to Georgia Perry-Raccis is affirmed.
Viewing the evidence in the light most favorable to the prosecution (see, People v. Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish the respective defendants' guilt of attempted criminal possession of stolen property in the second degree and conspiracy in the fourth degree beyond a reasonable doubt.
While the admission of the hearsay statements of the codefendant John Papadakis was error because the People failed to show that he was unavailable to testify, the error was harmless in light of the overwhelming evidence of the defendants' guilt (see, People v. Crimmins, 36 N.Y.2d 230).
We agree with the defendant Mahesh K. Singh's contention that it was impermissible to impose a sentence of six months imprisonment and five years probation on the conviction of criminal conspiracy in the fourth degree to run concurrently with the indeterminate sentence of 1 1/2 to 4 1/2 years imprisonment on the conviction of attempted criminal possession of stolen property in the second degree (see, People v. Cerilli, 80 N.Y.2d 1016). We have, therefore, vacated the split sentence and imposed a definite sentence instead. However, we do not agree with Singh's contention that the sentence imposed was excessive (see, People v. Suitte, 90 A.D.2d 80).
The defendants' remaining contentions are either unpreserved for appellate review or without merit. Santucci, J.P., Joy, Friedmann and Florio, JJ., concur.