Opinion
July 18, 1990
Appeal from the County Court, Rockland County (Nelson, J.).
Ordered that the judgment is affirmed.
The defendant was convicted of conspiracy in the second degree based in part on evidence derived from eavesdropping warrants.
On appeal, he contends that the eavesdropping evidence should have been suppressed because the initial eavesdropping warrant application included conversations intercepted over the codefendant Fata's cordless telephone without a warrant and because certain tapes were untimely sealed. These issues have been addressed on the appeals of the defendant's codefendants (see, People v. Fata, 159 A.D.2d 180; People v. Caponigro, 163 A.D.2d 527 [decided herewith]) and we find no basis for a different determination here.
The defendant seeks suppression of the evidence derived from the eavesdropping warrants on the additional ground that the People failed to establish that normal investigative procedures were either tried without success, or reasonably appeared unlikely to succeed (CPL 700.15). However, we find that the affidavits submitted in support of the warrant applications met this requirement and adequately apprised the court of the nature and progress of the investigation. The People were not required to show that every other method of investigation had been exhausted (see, People v. Gallina, 95 A.D.2d 336; People v Versace, 73 A.D.2d 304).
The indictment alleged that the defendant had conspired with other named individuals to possess and sell cocaine in Rockland County. The defendant contends that the court erred in permitting the prosecution to introduce certain tape recorded conversations before establishing a prima facie case of conspiracy. In order to introduce the declarations of the defendant's coconspirators into evidence, the People were required first to establish "by prima facie proof, the existence of a conspiracy between the declarant and the defendant `without recourse to the declarations sought to be introduced'" (People v. Sanders, 56 N.Y.2d 51, 62, quoting People v. Salko, 47 N.Y.2d 230). We find that the tapes of the defendant's conversations, the evidence derived from the police surveillance activities and the recovery of cocaine discovered pursuant to a search warrant, were sufficient to establish a prima facie case of conspiracy. The declarations of the defendant's coconspirators were therefore properly admitted into evidence.
The defendant further contends that the court erred in failing to instruct the jury on the issue of multiple conspiracies. We find that such a charge was not warranted because the jury could not reasonably find the existence of multiple conspiracies from the evidence adduced at trial (cf., People v. Leisner, 73 N.Y.2d 140).
The court did not err in submitting to the jury the charged offense of conspiracy in the second degree and the lesser included offense of conspiracy in the fourth degree, and in refusing the defense counsel's request to submit the offense of conspiracy in the fifth degree. The defendant's conviction of conspiracy in the second degree, rather than the lesser included offense, forecloses review of the trial court's refusal to charge conspiracy in the fifth degree (see, People v. Boettcher, 69 N.Y.2d 174; People v. Richette, 33 N.Y.2d 42; People v. Norman, 147 A.D.2d 717). Furthermore, the court's instruction that the jury could not consider conspiracy in the fourth degree unless it first acquitted the defendant of conspiracy in the second degree was proper (see, People v. Boettcher, supra).
The defendant waived his claim that the indictment was defective by failing to move to dismiss the indictment on that ground within 45 days of his arraignment (see, CPL 255.10, 255.20 Crim. Proc.; People v. Iannone, 45 N.Y.2d 589; People v. Udzinski, 146 A.D.2d 245).
We find that the sentence imposed was not excessive (see, People v. Suitte, 90 A.D.2d 80).
The defendant's remaining contentions are without merit. Kunzeman, J.P., Rubin, Eiber and Miller, JJ., concur.