People v. Schmotzer

87 A.D.2d 792

Opinions

— Judgment, Supreme Court, New York County (Rosenberger, J.), rendered March 23, 1981, convicting defendant, after a jury trial, of conspiracy in the second degree, criminal possession of a controlled substance in the fifth degree, tampering with physical evidence, petit larceny, and official misconduct, and sentencing him on each count to a concurrent term of one year, affirmed. The principal issue presented on this appeal is the admissibility as a declaration against penal interest of a taped conversation found by the trial court to have occurred after the expiration of the conspiracy charged. We are satisfied that if it was error to have admitted the taped conversation, a close issue on which members of this court are in disagreement, the error was harmless. (See People v Crimmins, 36 NY2d 230, 241, 242.) The evidence established convincingly that three police officers participated in an arrest which led to the seizure of contraband whose unlawful diversion formed the basis of the charges against the defendant. The three officers were the principal People’s witness, Reifenheiser, acting in an undercover capacity, the defendant, and Officer Jackson. Reifenheiser’s detailed testimony concerning the defendant’s participation in the criminal acts was impressively confirmed by an earlier tape recording properly admitted into evidence as the statement of a conspirator in furtherance of the conspiracy, which conclusively established that the unlawfully diverted contraband was to be divided among three persons. All that was added by the disputed tape recording was a specific identification of the defendant as the third person concerned with the division of the property. Under the circumstances, it. seems to us extremely improbable that this evidence affected the jury’s verdict. A finding of prejudice would necessarily depend on the theory that the jury might have concluded that an undercover officer, without any discernible reason to falsely incriminate a brother officer, and whose testimony with regard to the criminal acts was strongly confirmed by a tape recording establishing the participation of three individuals, for some unexplained reason falsely incriminated the defendant in lieu of an actual participant. We do not consider this “a rational possibility,” much less “a significant probability”. {People v Crimmins, supra, at pp 241, 242.) Concur — Sandler, J. P., Carro, Bloom and Fein, JJ.