Opinion
September 29, 1995
Appeal from the Yates County Court, Falvey, J.
Present — Denman, P.J., Pine, Wesley, Balio and Davis, JJ.
Judgment unanimously affirmed. Memorandum: On appeal from a judgment convicting him of robbery in the second degree (Penal Law § 160.10), defendant contends that the court erred in admitting hearsay evidence; that the verdict of guilty of second degree robbery is repugnant to defendant's acquittal of the charge of fourth degree conspiracy; that the court erred in its jury instruction by characterizing the complainant as a "victim"; and that the sentence is harsh and excessive.
The court erred in admitting hearsay evidence. The statement of defendant's accomplice was not made in the course and furtherance of the conspiracy (see, People v Sanders, 56 N.Y.2d 51, 62; People v Rastelli, 37 N.Y.2d 240, 244, cert denied 423 U.S. 995), and thus was not admissible. Nonetheless, the error is harmless. The gist of the testimony, concerning what defendant and the accomplice had discussed in planning the robbery, had already been established by the accomplice's testimony. The arresting officer's testimony thus added nothing of substance to the People's case.
The contention that the verdict is repugnant was not preserved by timely objection prior to the discharge of the jury (see, People v Satloff, 56 N.Y.2d 745, 746) and in any event is lacking in merit. Under the court's instructions, conspiracy has an element, i.e., agreement, that robbery does not have.
Under circumstances whereby a robbery indisputably occurred and the only question was the identity of the person who committed it, the court did not err in labeling the complainant a "victim". Finally, the sentence is not excessive in light of the circumstances of the crime and defendant's extensive criminal history.