Summary
In People v Perez (175 A.D.2d 614 [July 12, 1991]), the Appellate Division, Fourth Department, seemingly adopted Persico (supra).
Summary of this case from People v. CookOpinion
July 12, 1991
Appeal from the Monroe County Court, Wisner, J.
Present — Callahan, J.P., Doerr, Denman, Green and Lowery, JJ.
Judgment unanimously affirmed. Memorandum: The trial court erred in admitting the statements of coconspirator Benitez because the People failed to establish that Benitez was unavailable at the time of trial (see, People v Ayala, 75 N.Y.2d 422, 432; People v Sanders, 56 N.Y.2d 51, 62-64, rearg denied 57 N.Y.2d 674; People v Warren, 156 A.D.2d 972, 973, lv denied 75 N.Y.2d 925; People v Comfort, 151 A.D.2d 1019, 1020, lv denied 74 N.Y.2d 807; cf., United States v Inadi, 475 U.S. 387). The error is harmless, however, because the testimony of the undercover police officers provided overwhelming evidence of defendant's guilt and there is no reasonable possibility that the jury verdict would have been different but for the error (see, People v Persico, 157 A.D.2d 339, 349-350, lv denied 76 N.Y.2d 895). The proof established that defendant introduced himself as Benitez's partner, gave orders during the drug sale transaction and grabbed the cocaine and ran upstairs at the time of the raid. We conclude that the evidence was legally sufficient to support the verdict and that the verdict was not against the weight of the evidence (see, People v Bleakley, 69 N.Y.2d 490, 495; People v Mullen, 152 A.D.2d 260, 266). Defendant's remaining contentions lack merit.