Opinion
March 17, 1995
Appeal from the Cayuga County Court, Corning, J.
Present — Green, J.P., Wesley, Callahan, Doerr and Davis, JJ.
Judgment unanimously reversed on the law and indictment dismissed. Memorandum: Defendant was convicted of one count of criminal sale of a controlled substance in the third degree and two counts of conspiracy in the fourth degree. The charges arose out of the sale of cocaine to Greg Lawson and the conspiracy to sell cocaine to Charles Stillwell. Lawson and Stillwell testified against defendant in exchange for immunity from prosecution. County Court instructed the jury that Lawson and Stillwell were accomplices as a matter of law and that their testimony required corroboration (see, CPL 60.22). The court further instructed the jury that the People had offered, as corroborative evidence of the accomplices' testimony, tapes of conversations between defendant and each accomplice, obtained through the execution of an eavesdropping warrant on defendant's telephone. The People did not object to the charge.
We agree with defendant that, because they failed to object to the charge as given, the People may not argue on appeal that evidence other than the taped conversations served to corroborate the testimony of the accomplices (see, People v. Steinberg, 79 N.Y.2d 673, 683-684; People v. Daniels, 37 N.Y.2d 624, 630, n 3; cf., People v. Malagon, 50 N.Y.2d 954; People v. Bell, 48 N.Y.2d 913, 915, rearg denied 49 N.Y.2d 801; People v. Bailey, 159 A.D.2d 1009). We further agree with defendant that the taped conversations are not sufficient corroboration of the accomplices' testimony.
Corroborative evidence need tend only to connect defendant with the crime in such a way that the jury may be reasonably satisfied that the accomplice is telling the truth (see, People v Breland, 83 N.Y.2d 286, 292-293; People v. Steinberg, supra, at 683; People v. Glasper, 52 N.Y.2d 970, 971; People v. Daniels, supra, at 629). The corroborative evidence, however, "must be independent of, and may not draw its weight and probative value from, the accomplice's testimony" (People v. Steinberg, supra, at 683; see also, People v. Moses, 63 N.Y.2d 299, 306). Tapes of telephone conversations intercepted through the use of legal wiretaps can corroborate the testimony of an accomplice (see, People v. Jewsbury, 115 A.D.2d 341, 342; People v. Potenza, 92 A.D.2d 21, 28). If the incriminating nature of the conversations can be ascertained only by reference to the accomplice's testimony, however, the conversations are insufficient to corroborate the accomplice's testimony (see, People v. Rosica, 199 A.D.2d 773, 775-776, lv denied 83 N.Y.2d 876; People v Argueta, 192 A.D.2d 538, 539, lv denied 81 N.Y.2d 1069; People v Pynes, 170 A.D.2d 981, lv denied 78 N.Y.2d 972; cf., People v Weaver, 157 A.D.2d 983, 985-986, lv denied 76 N.Y.2d 744). Here, as in Rosica, Argueta, and Pynes, the conversations, standing alone, are not incriminating. Only when they are referenced to the testimony of the accomplices, who explain what was "actually" being discussed, do the conversations become incriminating. Consequently, the conversations fail to corroborate the testimony of the accomplices, requiring reversal of the conviction and dismissal of the indictment. In light of that determination, it is unnecessary to reach defendant's remaining arguments.