Following a pretrial hearing, the trial court properly found that the statement of a non-testifying co-conspirator was admissible, based upon the People's prima facie showing of a conspiracy involving defendant, without recourse to the declaration sought to be introduced (see, People v Salko, 47 N.Y.2d 230, 237-238). The declarant was rendered unavailable to testify by his immutable invocation of his Fifth Amendment privilege, notwithstanding the court's advice that, inter alia, he could be held in contempt (see, People v Thomas, 162 A.D.2d 403, lv denied 76 N.Y.2d 991). As there was no reasonable expectation that the declarant would testify, there was no necessity for the trial court to call him to the stand, only to have him refuse to testify (supra, at 404). Additionally, because the statement was made prior to disposition of the proceeds of the larceny according to the conspirators' plan, it was made during the course of the conspiracy (People v Storrs, 207 N.Y. 147, 159). As it explained that the murders were "necessary" to cover the conspirators' trail, and was made as the declarant emptied his gun of the telltale shells, it was admissible as made in furtherance of the conspiracy, and as part of the res gestae (People v Davis, 56 N.Y. 95, 103).
We have considered defendant's additional arguments and find them to be without merit.
Concur — Sullivan, J.P., Carro, Ellerin and Rubin, JJ.