Opinion
March 11, 1994
Appeal from the Monroe County Court, Marks, J.
Present — Balio, J.P., Lawton, Doerr, Davis and Boehm, JJ.
Judgment unanimously affirmed. Memorandum: Defendant contends that County Court erred in admitting in evidence the hearsay statements made by a third party to an undercover police officer. We disagree. The statements are admissible as declarations against penal interest (see, e.g., People v. Thomas, 68 N.Y.2d 194, 197, cert denied 480 U.S. 948; People v. Settles, 46 N.Y.2d 154). Defendant does not contest the unavailability of the third party to give testimony or that declarant's knowledge of the underlying facts. The record establishes that the declarant was aware when he made the statements that they were against his penal interest and contained sufficient competent evidence independent of the declarations to assure their trustworthiness and reliability. Thus, the four prerequisites for the admission of evidence as a declaration against penal interest were satisfied (see, People v. Thomas, supra). Likewise, because those statements explained and characterized the drug sale between declarant and the undercover officer, they are also admissible as part of the res gestae (see, Richardson, Evidence §§ 279, 280 [Prince 10th ed]). Moreover, those statements, which were made contemporaneously with or immediately after the events described, were admissible under the present sense impression exception to the hearsay rule (see, People v. Brown, 80 N.Y.2d 729, 732-737).
The contention that the court's admission of that evidence violated defendant's Sixth Amendment right to confront and cross-examine witnesses is unpreserved because defendant failed to specify that constitutional objection at trial (see, People v Michalek, 82 N.Y.2d 906; People v. Pavao, 59 N.Y.2d 282, 292, n 3; People v. Goodson, 57 N.Y.2d 828, 830-831).
We have reviewed defendant's remaining contentions and find them to be without merit.