Opinion
May 29, 1986
Appeal from the Supreme Court, Tioga County (Smyk, J.).
In addition to the crimes for which he was convicted, defendant was also indicted for conspiracy in the fourth degree in that he, in concert with two codefendants, planned and executed the burglary and robbery for which he was convicted. At the conclusion of the proof, the trial court dismissed the conspiracy charge. In this appeal, defendant contends that it was reversible error to permit the hearsay testimony of a police officer who described defendant's activities from statements made to him by codefendants. We disagree. Although the trial court dismissed the conspiracy charge at the close of all the proof, the record demonstrates that at the time the police officer testified, there was prima facie proof of a conspiracy by the independent testimony of other witnesses. The fact that the trial court apparently considered, as a matter of law, that there was insufficient proof of defendant's guilt of the crime of conspiracy, beyond a reasonable doubt, is of no moment (see, People v Berkowitz, 50 N.Y.2d 333, 342; People v Rastelli, 37 N.Y.2d 240, 244). We find the other evidentiary issues raised by defendant to be without merit, as is the contention that the sentence was harsh and excessive.
Judgment affirmed. Kane, J.P., Casey, Mikoll and Levine, JJ., concur.