Opinion
September 22, 1994
Appeal from the Supreme Court, New York County (Jeffrey M. Atlas, J.).
Defendant's guilt of the murder of Michael Holly was overwhelmingly established through tape recorded conversations in which he admitted to the planning of the murder and the driving of the getaway car following Holly's murder on a city street. Defendant's claims with respect to the trial court's evidentiary rulings are either meritless, unpreserved or of a non-prejudicial nature in view of the clear evidence of guilt.
An indicted codefendant's pretrial plea allocution was properly admitted at defendant's trial as a declaration against penal interest (People v. Thomas, 68 N.Y.2d 194, cert denied 480 U.S. 948). The codefendant was unavailable to testify at trial since he invoked his Fifth Amendment privilege with respect to a pending appeal of a Federal conviction which also concerned the Holly murder (see, People v. Chambers, 184 A.D.2d 716, 717-718). There were sufficient indicia of reliability concerning the statements at plea and the codefendant was clearly aware that the statement was contrary to his penal interest. Thus, the plea allocution was properly admitted.
Additional statements of the codefendants made after the murder were not admitted under the coconspirator exception to the hearsay rule but, rather, as admissions against penal interest. The limited proof of the uncharged crimes which necessarily came out at trial was permissible to show motive and as necessary background for the jury (see, People v. Rachles, 177 A.D.2d 357, 358, lv denied 79 N.Y.2d 952). Additionally, defendant never objected to the court's charge or marshalling of the evidence and therefore his present claim that evidence favorable to him was not marshalled for the jury is not preserved (People v Rodriguez, 199 A.D.2d 72, lv denied 83 N.Y.2d 809). In any event, since the court did not marshal the evidence for or against either party, the defendant may not complain (supra).
We have considered the defendant's other contentions and find they do not warrant modification of the judgment.
Concur — Rosenberger, J.P., Ellerin, Ross, Rubin and Williams, JJ.