Opinion
January 16, 1976
Appeal from the Genesee County Court.
Present — Cardamone, J.P., Simons, Mahoney, Goldman and Witmer, JJ.
Judgment unanimously affirmed. Memorandum: It was error to permit the undercover officer who purchased drugs from these codefendants to testify as to hearsay statements made by each codefendant in the absence of the other which inculpated the absent codefendant. The court received the evidence on the theory that the statements were made in furtherance of a conspiracy (see People v Luciano, 277 N.Y. 348, 358; People v Pontani, 33 A.D.2d 688; and see Migliore v United States, 409 F.2d 786, cert den 396 U.S. 975), but any conspiracy, if such there was, had terminated before the statements were made (Krulewitch v United States, 336 U.S. 440; People v Zavarro, 26 N.Y.2d 846; People v Marshall, 306 N.Y. 223). Nevertheless, in view of the overwhelming proof of guilt in the record, the error was harmless (Harrington v California, 395 U.S. 250; People v Pelow, 24 N.Y.2d 161, 167; People v Walker, 36 A.D.2d 959, affd 31 N.Y.2d 970). We have considered the other points raised by appellants and find them to be without merit.