People v. Claytor

Citation524 N.Y.S.2d 835,137 A.D.2d 760
PartiesThe PEOPLE, etc., Respondent, v. Rene CLAYTOR, Appellant.
Decision Date22 February 1988
CourtNew York Supreme Court — Appellate Division

Gale D. Berg, New York City, for appellant, pro se.

Rene Claytor, pro se.

John J. Santucci, Dist. Atty., Kew Gardens (Michael O'Brien, of counsel), for respondent.

Before BRACKEN, J.P., and WEINSTEIN, RUBIN and SULLIVAN, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Dunkin, J.), rendered June 20, 1979, convicting him of criminal sale of a controlled substance in the first degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant contends that the court improperly admitted into evidence the substance of conversations between an undercover police officer and a coconspirator. Declarations by a conspirator made during the course of and in furtherance of the conspiracy are admissible against a coconspirator as an exception to the hearsay rule provided that the prosecution establishes a prima facie case of conspiracy independent of the declarations ( see, People v. Sanders, 56 N.Y.2d 51, 451 N.Y.S.2d 30, 436 N.E.2d 480, rearg. denied 57 N.Y.2d 674, 454 N.Y.S.2d 1032, 439 N.E.2d 1247; People v. Salko, 47 N.Y.2d 230, 420 N.Y.S.2d 223, 394 N.E.2d 292, remittitur amended 47 N.Y.2d 1010, 420 N.Y.S.2d 223, 394 N.E.2d 292, rearg. denied 47 N.Y.2d 1010, 1012, 420 N.Y.S.2d 1025, 394 N.E.2d 308; People v. Bongarzone, 116 A.D.2d 164, 500 N.Y.S.2d 532, affd. 69 N.Y.2d 892, 515 N.Y.S.2d 227, 507 N.E.2d 1083). We find that the People met this burden. Furthermore, the circumstances surrounding the declarations presented sufficient indicia of reliability so that admission of the statements did not violate the defendant's right to confrontation ( see, People v. Negron, 122 A.D.2d 894, 506 N.Y.S.2d 5, lv. denied 69 N.Y.2d 714, 512 N.Y.S.2d 1041, 504 N.E.2d 409).

The defendant contends that he was deprived of effective assistance of counsel because his attorney failed to present an alibi defense based in part on a hospital record. However, this record, subsequently submitted on a CPL 330.30 motion, indicates that the defendant left the hospital emergency room at least one hour prior to the time he was observed by several police officers at the scene of the drug sale. Nor are we persuaded that the defense counsel failed to offer meaningful representation simply because he failed to obtain the testimony of a potential alibi witness when that witness left the state prior to the trial and did not contact the defendant until after the trial. The circumstances of this case, viewed in totality and as of the time of the...

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6 cases
  • People v. Cook
    • United States
    • New York Supreme Court
    • October 20, 1993
    ...every Appellate Division decision that discusses the issue, but merely those that it felt relevant (see, e.g., People v. Claytor, 137 A.D.2d 760, 524 N.Y.S.2d 835; People v. Negron, 122 A.D.2d 894, 506 N.Y.S.2d 5, lv. denied 69 N.Y.2d 714, 512 N.Y.S.2d 1041, 504 N.E.2d 409; People v. Porter......
  • Arce v. Smith
    • United States
    • U.S. District Court — Southern District of New York
    • March 17, 1989
    ...not show that there would have been any proof of an alibi that could have been established at trial. See People v. Claytor, 137 A.D.2d 760, 524 N.Y.S.2d 835, 836 (2d Dep't 1988) (mem.); cf. Farinaro v. Kirk, 675 F.Supp. 75, 82 (E.D.N.Y.1987); People v. Ford, 46 N.Y.2d 1021, 416 N.Y.S.2d 536......
  • People v. Persico
    • United States
    • New York Supreme Court — Appellate Division
    • May 22, 1990
    ...of co-conspirator hearsay has, in fact, retained some currency in recent intermediate appellate decisions (see, People v. Claytor, 137 A.D.2d 760, 524 N.Y.S.2d 835 [1988]; People v. Negron, 122 A.D.2d 894, 506 N.Y.S.2d 5 [1987] lv. denied 69 N.Y.2d 714, 512 N.Y.S.2d 1041, 504 N.E.2d 409) no......
  • People v. Nunez
    • United States
    • New York Supreme Court — Appellate Division
    • October 19, 1992
    ...of effective assistance of counsel (People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400; see People v. Claytor, 137 A.D.2d 760, 761, 524 N.Y.S.2d 835; People v. Brown, 117 A.D.2d 741, 742, 498 N.Y.S.2d The sentence was appropriate (see, People v. Suitte, 90 A.D.2d 80, 455 ......
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