Opinion
162 KA 20-01200
02-11-2021
The PEOPLE of the State of New York, Appellant, v. Robert BASKA, Defendant-Respondent.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (BRADLEY W. OASTLER OF COUNSEL), FOR APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (BRADLEY W. OASTLER OF COUNSEL), FOR APPELLANT.
PRESENT: WHALEN, P.J., CARNI, NEMOYER, CURRAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously reversed on the law, that part of the omnibus motion seeking to dismiss the indictment is denied, the indictment is reinstated, and the matter is remitted to Onondaga County Court for further proceedings on the indictment.
Memorandum: The People appeal from an order granting that part of defendant's omnibus motion seeking to dismiss the indictment on the ground that the evidence before the grand jury is legally insufficient because the People failed to sufficiently corroborate the testimony of an accomplice, as required by CPL 60.22 (1). The indictment charged defendant with perjury in the first degree ( Penal Law § 210.15 ), conspiracy in the fifth degree (§ 105.05 [1]), criminal solicitation in the fourth degree (§ 100.05 [1]), and hindering prosecution in the third degree (§ 205.55).
The People contend that County Court erred in determining that the grand jury testimony of defendant's accomplice was not sufficiently corroborated. We agree. The corroboration requirement is satisfied by evidence that " ‘tends to connect the defendant with the commission of the crime in such a way as may reasonably satisfy the jury that the accomplice is telling the truth’ " ( People v. Reome , 15 N.Y.3d 188, 192, 906 N.Y.S.2d 788, 933 N.E.2d 186 [2010] ). Sufficient corroboration may be provided by evidence that " ‘harmonize[s]’ " with the accomplice testimony, i.e., when "read with the accomplice's testimony, [it] makes it more likely that the defendant committed the offense" ( id. at 194, 906 N.Y.S.2d 788, 933 N.E.2d 186 ; see People v. Highsmith , 124 A.D.3d 1363, 1364, 1 N.Y.S.3d 674 [4th Dept. 2015], lv denied 25 N.Y.3d 1202, 16 N.Y.S.3d 524, 37 N.E.3d 1167 [2015] ).
Here, the accomplice's testimony that, on a specific date, defendant and the accomplice had a telephone conversation regarding the alleged criminal conduct is corroborated by defendant's cell phone records, which establish "that cell phone calls were made as the accomplice[ ] testified" ( People v. Pratcher , 134 A.D.3d 1522, 1524, 22 N.Y.S.3d 757 [4th Dept. 2015], lv denied 27 N.Y.3d 1154, 39 N.Y.S.3d 388, 62 N.E.3d 128 [2016] ). The accomplice's testimony is also corroborated by, among other things, the testimony of non-accomplices and the transcript of the criminal jury trial during which the charged offenses were allegedly committed (see People v. Lett , 12 A.D.3d 1076, 1077, 784 N.Y.S.2d 764 [4th Dept. 2004], lv denied 4 N.Y.3d 765, 792 N.Y.S.2d 9, 825 N.E.2d 141 [2005] ; see also People v. Guilliard , 309 A.D.2d 673, 673, 765 N.Y.S.2d 863 [1st Dept. 2003], lv denied 1 N.Y.3d 597, 776 N.Y.S.2d 229, 808 N.E.2d 365 [2004] ).