Opinion
February 22, 1988
Appeal from the Supreme Court, Queens County (Dunkin, J.).
Ordered that the judgment is affirmed.
The defendant contends that the court improperly admitted into evidence the substance of conversations between an undercover police officer and a coconspirator. Declarations by a conspirator made during the course of and in furtherance of the conspiracy are admissible against a coconspirator as an exception to the hearsay rule provided that the prosecution establishes a prima facie case of conspiracy independent of the declarations (see, People v Sanders, 56 N.Y.2d 51, rearg denied 57 N.Y.2d 674; People v Salko, 47 N.Y.2d 230, remittitur amended 47 N.Y.2d 1010, rearg denied 47 N.Y.2d 1010, 1012; People v Bongarzone, 116 A.D.2d 164, affd 69 N.Y.2d 892). We find that the People met this burden. Furthermore, the circumstances surrounding the declarations presented sufficient indicia of reliability so that admission of the statements did not violate the defendant's right to confrontation (see, People v Negron, 122 A.D.2d 894, lv denied 69 N.Y.2d 714).
The defendant contends that he was deprived of effective assistance of counsel because his attorney failed to present an alibi defense based in part on a hospital record. However, this record, subsequently submitted on a CPL 330.30 motion, indicates that the defendant left the hospital emergency room at least one hour prior to the time he was observed by several police officers at the scene of the drug sale. Nor are we persuaded that the defense counsel failed to offer meaningful representation simply because he failed to obtain the testimony of a potential alibi witness when that witness left the State prior to the trial and did not contact the defendant until after the trial. The circumstances of this case, viewed in totality and as of the time of the representation, reveal that the defendant was not deprived of effective assistance of counsel (see, People v Baldi, 54 N.Y.2d 137).
The sentence imposed upon the defendant, which was the minimum possible under the statute (see, People v Festo, 96 A.D.2d 765, affd 60 N.Y.2d 809), does not constitute cruel and unusual punishment (see, People v Donovan, 59 N.Y.2d 834).
We have examined the defendant's remaining contentions, including those raised in pro se brief, and find that they do not warrant reversal of his conviction (see, People v Hewlett, 133 A.D.2d 417). Bracken, J.P., Weinstein, Rubin and Sullivan, JJ., concur.