Opinion
July 14, 1992
Appeal from the Erie County Court, D'Amico, J.
Present — Callahan, J.P., Lawton, Boehm and Davis, JJ.
Judgment unanimously affirmed. Memorandum: Viewing the evidence in the light most favorable to the People (see, People v. Ford, 66 N.Y.2d 428, 437), we conclude that it is legally sufficient to support defendant's conviction of conspiracy in the second degree, criminal sale of a controlled substance in the second degree, and criminal possession of a controlled substance in the third degree (see, People v. Bleakley, 69 N.Y.2d 490, 495).
Defendant contends that County Court erred in refusing to instruct the jury that prosecution witness James Fuller was an accomplice whose testimony required corroboration (see, CPL 60.22). The People argue that Fuller acted purely as a police agent and therefore lacked any criminal intent (see, People v Cona, 49 N.Y.2d 26, 34). While it is true that a police agent is not an accomplice because he lacks the intent to commit the crime (People v. Bedoya, 122 A.D.2d 545, lv denied 68 N.Y.2d 998), in this case Fuller did not act as a police agent. Instead, Fuller actively participated in the conspiracy of which defendant was a member. Once Fuller assumed that role, he came within the purview of CPL 60.22, and it was error for the court to refuse to charge the jury that his testimony required corroboration. That error does not require reversal, however, because it was harmless (see, People v Royall, 172 A.D.2d 703, 704, lv denied 78 N.Y.2d 973; People v Pelc, 101 A.D.2d 995). There is ample corroboration of Fuller's testimony. The audio tapes chronicle defendant's participation in the conspiracy, and the police surveillance and videotape verified that defendant engaged in the criminal activity for which he was convicted.
We have reviewed defendant's other claims of reversible error and conclude that there is no support in the record for them. Defendant concedes that he failed to make a pretrial motion to dismiss the indictment based upon a claimed denial of his right to a speedy trial (see, CPL 210.20); therefore, the claim is waived (see, People v. Lawrence, 64 N.Y.2d 200, 203). The People established a sufficient chain of custody of the contraband which was admitted in evidence, thereby providing reasonable assurances of the identity of the narcotics and of their unchanged condition (see, People v. Newman, 129 A.D.2d 742, lv denied 70 N.Y.2d 652). The audiotapes and transcripts thereof were properly admitted into evidence after the court conducted an audibility hearing. Defendant's right to effective assistance of counsel was not violated due to any alleged conflict of interest on the part of the attorney who represented him before trial. Defendant failed to demonstrate that "`the conduct of his defense was in fact affected by the operation of the conflict of interest'" (People v. Ortiz, 76 N.Y.2d 652, 657; see, People v. Recupero, 73 N.Y.2d 877, 879). Finally, the court did not abuse its discretion in imposing the maximum permissible sentence.