Opinion
February 11, 1971
Appeal from a judgment of the County Court of Schoharie County, rendered January 26, 1970, upon a verdict convicting defendant of the crime of conspiracy in the second degree. The indictment alleged that appellant did "on or about October 11 or 17, 1969, with intent that conduct constituting a Class B Felony, to wit, criminally selling a dangerous drug in the second degree, be performed, agree with one or more persons to engage in or cause the performance of such conduct." The evidence disclosed that on October 18, 1969, two of the alleged infant coconspirators inquired of appellant as to whether or not he had any marijuana. Since appellant had none, the trio arranged to go to New Paltz to purchase some drugs. Prior to the trip, financial arrangements were made. Apparently one of the alleged coconspirators had received $10 earlier in the week from an infant to purchase marijuana, and $30 on Saturday partly as a loan and partly to purchase drugs. Thereafter, the trio, accompanied by two more infants, drove to New Paltz where appellant arranged a sale of marijuana and LSD. There was testimony at the trial that both marijuana and LSD were distributed and used by the riders during the trip home from New Paltz and continuing into Sunday morning. The issues on this appeal are (1) whether the trial court properly refused to instruct the jury that certain persons were accomplices as a matter of law; (2) whether there was adequate corroborative evidence as required by statute to sustain the conviction; and (3) whether the trial court erred in failing to strike certain testimony. The trial court refused to charge the jury that the four youths who rode to New Paltz with the defendant were accomplices as a matter of law. Based on the evidence adduced at the trial, it clearly was a question of fact for the jury whether a conspiracy existed and if so, whether the coconspirators were accomplices of the defendant. If we were to find that Kincel was an accomplice as a matter of law, there was still sufficient corroborative evidence to sustain the conviction. The People contend that corroborative evidence tending to connect the appellant with the commission of the crime was supplied by the witness Horl who had not accompanied the group to New Paltz, but had received some marijuana from a coconspirator. We agree that Horl's testimony tends to connect appellant with the commission of the crime as required by section 399 of the Code of Criminal Procedure. Horl testified that appellant asked him if he "had gotten the marijuana that they had gone down to New Paltz to get" and further inquired "how was it?" In People v. Morhouse ( 21 N.Y.2d 66, 74), the Court of Appeals stated: "The corroboration requirement of section 399 of the Code of Criminal Procedure is fully met when there is some nonaccomplice evidence `fairly tending to connect the defendant with the commission of the crime' * * *. The corroboration need not, as must circumstantial evidence, lead exclusively to the inference of defendant's guilt. As this court has noted, even `Matters in themselves of seeming indifference * * * may so harmonize with the accomplice's narrative as to have a tendency to furnish the necessary connection between the defendant and the crime'" (emphasis supplied). Nor is there any merit in appellant's contention that the trial court committed reversible error in admitting testimony pertaining to the appellant's prior use of drugs. Although the general rule excludes testimony of other crimes, the evidence was properly received under the Molineux rule ( People v. Molineux, 168 N.Y. 264, 309) to establish the necessary elements of knowledge and intent. Judgment affirmed. Herlihy, P.J., Reynolds, Greenblott, Cooke and Sweeney, JJ., concur.