Opinion
May 31, 1991
Appeal from the Supreme Court, Queens County (Clabby, J.).
Ordered that the judgment and the amended judgment are affirmed.
The defendant contends that the trial court improperly admitted into evidence the hearsay statement of the codefendant Benito Ruiz to an undercover police officer. The statement at issue was properly admitted against the defendant pursuant to a recognized exception to the hearsay rule, i.e., as a declaration of a coconspirator made during the course of and in furtherance of a conspiracy (see, People v Sanders, 56 N.Y.2d 51, 62; People v Salko, 47 N.Y.2d 230, 237). Although the defendant was not charged with conspiracy, the evidence was admissible since it tended to prove the defendant's "commission of a substantive crime for which the conspiracy was formed" (People v Salko, supra, at 237). Furthermore, the People met their burden of establishing a prima facie case independent of the statement in question that the defendant and the codefendant had conspired to sell cocaine to the undercover police officer (see, People v Sanders, supra; People v Bisnett, 144 A.D.2d 567, 570; People v Claytor, 137 A.D.2d 760; see also, People v Comfort, 151 A.D.2d 1019, 1020). We further conclude that the admission of the statement at issue did not violate the defendant's right to confrontation (see, People v Sanders, supra; People v Salko, supra). The codefendant who absconded subsequent to his arrest, was unavailable and the circumstances surrounding his declaration presented sufficient indicia of its reliability (see, People v Sanders, supra; People v Claytor, supra; see also, People v Comfort, supra).
The defendant contends that the trial court's charge on the defendant's right not to testify went beyond the statutory language (see, CPL 300.10). However, no objection was raised by defense counsel to the charge as given. The issue is therefore unpreserved for appellate review (see, People v Autry, 75 N.Y.2d 836; People v Wilson, 162 A.D.2d 747) and we decline to reach it in the exercise of our interest of justice jurisdiction (see, CPL 470.15).
Lastly, we find the defendant's allegations of prosecutorial misconduct are either unpreserved for appellate review (see, CPL 470.05) or are without merit (see, People v Bartolomeo, 126 A.D.2d 375). Thompson, J.P., Brown, Eiber and O'Brien, JJ., concur.