Opinion
November 13, 2000.
Appeal from Judgment of Monroe County Court, Smith, J. — Murder, 2nd Degree.
PRESENT: PIGOTT, JR., P. J., GREEN, HAYES, SCUDDER AND KEHOE, JJ.
Judgment unanimously affirmed.
Memorandum:
County Court properly admitted in evidence the redacted statement of defendant's nontestifying accomplice as a declaration against penal interest. The People established that the accomplice invoked his constitutional privilege against self-incrimination and thus was unavailable as a witness; he was aware when he made the statement that it was contrary to his penal interest; he had competent knowledge of the underlying facts; and there was sufficient competent evidence independent of the declaration to assure its trustworthiness and reliability ( see, People v. Brensic 70 N.Y.2d 9, 15, mot to amend remittitur granted 70 N.Y.2d 722; People v. Thomas, 68 N.Y.2d 194, 197, cert denied 480 U.S. 948). The record does not support the further contention that defendant was illegally arrested and removed from the State of Florida by Rochester police officers. In any event, "[d]efendant himself is not a suppressible `fruit'", and any illegality in obtaining the presence of defendant at trial "cannot deprive the People of the opportunity to prove his guilt through the introduction of evidence wholly untainted by the police misconduct" ( People v. Mackie, 133 A.D.2d 514, 515, lv denied 70 N.Y.2d 934; see, United States v. Crews, 445 U.S. 463, 474; People v. Young, 55 N.Y.2d 419, 426, cert denied 459 U.S. 848). The sentence is not unduly harsh or severe.