Opinion
2014-04-3
The PEOPLE of the State of New York, Respondent, v. Emanuel P. MEDEIROS, Appellant.
Rebecca L. Wittman, Utica, for appellant. John M. Muehl, District Attorney, Cooperstown (Michael F. Getman of counsel), for respondent.
Rebecca L. Wittman, Utica, for appellant. John M. Muehl, District Attorney, Cooperstown (Michael F. Getman of counsel), for respondent.
Before: PETERS, P.J., LAHTINEN, ROSE and EGAN JR., JJ.
PETERS, P.J.
Appeal from a judgment of the County Court of Otsego County (Lambert, J.), rendered October 29, 2012, upon a verdict convicting defendant of the crimes of criminal possession of a weapon in the third degree, criminal sale of a firearm in the third degree and attempted intimidating a victim or witness in the second degree.
Defendant was charged with criminal possession of a weapon in the third degree, criminal sale of a firearm in the third degree and intimidating a victim or witness in the second degree arising out of his sale of a .22 caliber handgun to Dustin Lewandowski and subsequent threats against Lewandowski for providing a statement to police identifying him as the seller. Following a jury trial at which Lewandowski testified as the principal witness for the People, defendant was convicted of attempted intimidating a victim or witness in the second degree, as a lesser included offense, as well as the remaining counts of the indictment. County Court sentenced him to a term of imprisonment, and this appeal ensued.
Defendant's contention that he was deprived of his right to testify before the grand jury is without merit. Defense counsel was given notice on a Thursday that the People intended to present matters charged in pending felony complaints to the grand jury on the following Tuesday. Defense counsel responded the next day stating that she could not advise as to whether defendant wished to testify until she was informed whether the grand jury would hear the “weapon charge or the witness charge or both.” The People notified defense counsel the next business day (the day prior to the presentment) that all pending charges would be presented. No response was forthcoming. Under these circumstances, we find that defendant was accorded a reasonable time to exercise his right to appear and testify before the grand jury, but failed to notify the People in writing of his intention to do so ( seeCPL 190.50[5] [a]; People v. Sawyer, 96 N.Y.2d 815, 816, 727 N.Y.S.2d 381, 751 N.E.2d 460 [2001];People v. Small, 112 A.D.3d 857, 858, 976 N.Y.S.2d 575 [2013];People v. Henderson, 74 A.D.3d 1567, 1568, 903 N.Y.S.2d 589 [2010];People v. Ballard, 13 A.D.3d 670, 671, 785 N.Y.S.2d 608 [2004],lv. denied4 N.Y.3d 796, 795 N.Y.S.2d 171, 828 N.E.2d 87 [2005] ). As such, his motion to dismiss the indictment on this basis was properly denied.
We agree with defendant that County Court erred in failing to charge the jury that Lewandowski was an accomplice as a matter of law with respect to the weapon possession and sale charges. “A defendant may not be convicted of any offense upon the testimony of an accomplice unsupported by corroborative evidence tending to connect the defendant with the commission of such offense” (CPL 60.22[1] ). Pursuant to CPL 60.22, an accomplice is a person who “may reasonably be considered to have participated in ... [t]he offense charged; or ... [a]n offense based upon the same or some of the same facts or conduct which constitute the offense charged ” (CPL 60.22[2] [emphasis added] ). Notably, the definition of an accomplice for the purpose of the corroboration rule differs significantly from the definition of an accomplice for purposes of accomplice criminal liability ( see People v. Berger, 52 N.Y.2d 214, 219, 437 N.Y.S.2d 272, 418 N.E.2d 1291 [1981];compareCPL 60.22withPenal Law § 20.00). CPL 60.22 broadens the definition of an accomplice “ ‘in order to provide a more equitable, operable and consistent standard for the courts in determining when the requirement of corroboration is applicable’ ” ( People v. Basch, 36 N.Y.2d 154, 157, 365 N.Y.S.2d 836, 325 N.E.2d 156 [1975], quoting People v. Beaudet, 32 N.Y.2d 371, 378, 345 N.Y.S.2d 495, 298 N.E.2d 647 [1973] ). Thus, to be an accomplice for corroboration purposes, the witness “must somehow be criminally implicated and potentially subject to prosecution for the conduct or factual transaction related to the crimes for which the defendant is on trial” ( People v. Adams, 307 A.D.2d 475, 476, 763 N.Y.S.2d 347 [2003],lv. denied1 N.Y.3d 566, 775 N.Y.S.2d 784, 807 N.E.2d 897 [2003];see People v. Fielding, 39 N.Y.2d 607, 610, 385 N.Y.S.2d 17, 350 N.E.2d 393 [1976];People v. Basch, 36 N.Y.2d at 157, 365 N.Y.S.2d 836, 325 N.E.2d 156).
Here, the evidence established that Lewandowski did not have a license to possess the handgun he bought from defendant. Thus, although Lewandowski could not be subject to prosecution for criminal sale of a firearm, he was potentially subject to prosecution for—and was, in fact, charged with—criminal possession of a weapon in the fourth degree since he unlawfully possessed the weapon as soon as he made the purchase ( seePenal Law §§ 265.01[1]; 265.20[a][3] ). Just as the purchaser in a drug sale is, as a matter of law, an accomplice of the seller for corroboration purposes ( see People v. Knightner, 11 A.D.3d 1002, 1004, 782 N.Y.S.2d 333 [2004],lv. denied4 N.Y.3d 745, 790 N.Y.S.2d 658, 824 N.E.2d 59 [2004];People v. Webster, 123 A.D.2d 488, 488–489, 506 N.Y.S.2d 498 [1986];People v. Tune, 103 A.D.2d 990, 991–992, 479 N.Y.S.2d 832 [1984] ), here Lewandowski was an accomplice as a matter of law with respect to defendant's weapon sale and possession charges since he could have been (and was) charged with a crime “based upon some of the same facts or conduct” upon which the charges against defendant were based (CPL 60.22[2][b]; see People v. Sweet, 78 N.Y.2d 263, 266, 573 N.Y.S.2d 438, 577 N.E.2d 1030 [1991];People v. Adams, 307 A.D.2d at 477, 763 N.Y.S.2d 347;compare People v. Dickenson, 293 A.D.2d 867, 868–869, 742 N.Y.S.2d 398 [2002] ). County Court was therefore required to instruct the jury that Lewandowski was an accomplice as a matter of law as to those charges, and that defendant could not be convicted on Lewandowski's testimony absent corroborative evidence ( seeCPL 60.22[1] ). “Failure to so charge the jury was necessarily harmful error” ( People v. Jenner, 29 N.Y.2d 695, 696–697, 325 N.Y.S.2d 652, 275 N.E.2d 23 [1971] [citation omitted]; accord People v. Minarich, 46 N.Y.2d 970, 971, 415 N.Y.S.2d 825, 389 N.E.2d 137 [1979];see People v. Adams, 307 A.D.2d at 478, 763 N.Y.S.2d 347;People v. Artis, 182 A.D.2d 1011, 1013, 583 N.Y.S.2d 30 [1992];People v. Arnott, 143 A.D.2d 761, 763, 533 N.Y.S.2d 470 [1988];see also People v. Martinez, 83 N.Y.2d 26, 35–36, 607 N.Y.S.2d 610, 628 N.E.2d 1320 [1993],cert. denied511 U.S. 1137, 114 S.Ct. 2153, 128 L.Ed.2d 880 [1994] ). Accordingly, defendant's convictions for criminal possession of a weapon in the third degree and criminal sale of a firearm in the third degree must be reversed and a new trial ordered thereon.
Defendant also claims that his convictions on the weapon possession and sale charges were not supported by legally sufficient evidence corroborating the accomplice testimony. We disagree. “The corroborative evidence need not show the commission of the crime; it need not show that defendant was connected with the commission of the crime. It is enough if it 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, 191–192, 906 N.Y.S.2d 788, 933 N.E.2d 186 [2010] [internal quotation marks and citations omitted]; see People v. Breland, 83 N.Y.2d 286, 293, 609 N.Y.S.2d 571, 631 N.E.2d 577 [1994] ). “Corroborative proof is not rendered incompetent merely because an innocent interpretation is possible because the corroboration ‘need not, as must circumstantial evidence, lead exclusively to the inference of the defendant's guilt’ ” ( People v. McAndris, 300 A.D.2d 1, 2, 751 N.Y.S.2d 10 [2002],lv. denied99 N.Y.2d 630, 760 N.Y.S.2d 111, 790 N.E.2d 285 [2003], quoting People v. Morhouse, 21 N.Y.2d 66, 74, 286 N.Y.S.2d 657, 233 N.E.2d 705 [1967] ).
Here, although the proof regarding defendant's possession and sale of the firearm came solely from the testimony of Lewandowski, the People presented independent evidence establishing that, shortly after defendant was arrested on those charges, police responded to a report of an altercation between defendant and Lewandowski concerning a firearm. Upon responding to the incident, the police officer testified that Lewandowski appeared scared, was “shaking” and refused to speak to the officer until defendant left the premises. Mindful of the “minimal requirements” of CPL 60.22( People v. Jones, 85 N.Y.2d 823, 825, 623 N.Y.S.2d 836, 647 N.E.2d 1344 [1995] ), we find that this evidence “provide[s] a suitable nexus supporting a reasonable inference that the defendant was involved” ( People v. Mensche, 276 A.D.2d 834, 835, 714 N.Y.S.2d 377 [2000],lv. denied95 N.Y.2d 966, 722 N.Y.S.2d 484, 745 N.E.2d 404 [2000];see People v. Breland, 83 N.Y.2d at 293, 609 N.Y.S.2d 571, 631 N.E.2d 577;People v. Morhouse, 21 N.Y.2d at 74, 286 N.Y.S.2d 657, 233 N.E.2d 705;People v. Brink, 78 A.D.3d 1483, 1485, 910 N.Y.S.2d 606 [2010],lv. denied16 N.Y.3d 742, 917 N.Y.S.2d 623, 942 N.E.2d 1048 [2011] ). Together with Lewandowski's testimony, the evidence was legally sufficient to support each conviction ( see People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987];People v. Berry, 78 A.D.3d 1226, 1228, 910 N.Y.S.2d 281 [2010],lv. denied16 N.Y.3d 828, 921 N.Y.S.2d 192, 946 N.E.2d 180 [2011] ). Having also evaluated the evidence in a neutral light while according deference to the jury's credibility assessments, we find that the verdict was not against the weight of the evidence ( see People v. Romero, 7 N.Y.3d 633, 644, 826 N.Y.S.2d 163, 859 N.E.2d 902 [2006];People v. Self, 75 A.D.3d 924, 926, 906 N.Y.S.2d 164 [2010],lv. denied15 N.Y.3d 895, 912 N.Y.S.2d 583, 938 N.E.2d 1018 [2010] ).
Because his convictions are supported by legally sufficient trial evidence, defendant's challenges to the legal sufficiency of the evidence presented to the grand jury and the instructions given during that proceeding are precluded ( seeCPL 210.30[6]; People v. Sorrell, 108 A.D.3d 787, 789 n. 2, 969 N.Y.S.2d 198 [2013];People v. Serrano, 70 A.D.3d 1054, 1055, 897 N.Y.S.2d 455 [2010],lv. denied14 N.Y.3d 892, 903 N.Y.S.2d 781, 929 N.E.2d 1016 [2010] ).
ORDERED that the judgment is modified, on the law, by reversing defendant's convictions of criminal possession of a weapon in the third degree and criminal sale of a firearm in the third degree under counts 1 and 2 of the indictment and vacating the sentences imposed thereon; matter remitted to the County Court of Otsego County for a new trial on said counts; and, as so modified, affirmed.
LAHTINEN, ROSE and EGAN JR., JJ., concur.