Opinion
KA 99-02239
May 2, 2003.
Appeal from a judgment of Niagara County Court (Noonan, J.), entered April 17, 1998, convicting defendant after a jury trial of, inter alia, murder in the second degree (two counts).
THOMAS E. WEBB, JR., WILLIAMSVILLE, FOR DEFENDANT-APPELLANT.
MATTHEW J. MURPHY, III, DISTRICT ATTORNEY, LOCKPORT (THOMAS H. BRANDT OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: PIGOTT, JR., P.J., PINE, HURLBUTT, LAWTON, AND HAYES, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is affirmed.
Memorandum:
Defendant appeals from a judgment convicting him following a jury trial of two counts each of murder in the second degree (Penal Law 125.25, [3]) and criminal use of a firearm in the first degree (265.09 [1] [a], [b]), and four counts of robbery in the first degree (160.15 [1] — [4]). We reject defendant's contention that the verdict is against the weight of the evidence. The People's case against defendant was based primarily on the testimony of a jailhouse informant, and it cannot be said that his testimony was incredible as a matter of law ( see People v. Batista, 235 A.D.2d 631, 631-632, lv denied 89 N.Y.2d 1088; People v. Black, 226 A.D.2d 1113, lv denied 88 N.Y.2d 1019). Contrary to defendant's contention, the testimony of the informant was not rendered incredible as a matter of law because he received favorable treatment for his testimony ( see People v. Walts, 267 A.D.2d 617, 620, lv denied 95 N.Y.2d 859) or because he acknowledged his own prior criminal and amoral conduct ( see Batista, 235 A.D.2d at 631-632; see also People v. Hubert, 238 A.D.2d 745, 746, lv denied 90 N.Y.2d 859, 860). Those subjects were addressed on both direct examination and cross-examination of the informant, and the jury had the opportunity to assess his testimony and credibility ( see Batista, 235 A.D.2d at 631-632). Affording great deference to the jury's determination of credibility ( see generally People v. Duffy, 299 A.D.2d 914), we conclude that the jury did not fail to give the evidence the weight it should be accorded ( see People v. Bleakley, 69 N.Y.2d 490, 495).
We reject defendant's further contention that County Court erred in refusing to instruct the jury that it must acquit defendant if it discredited the informant's testimony. The court's "charge as a whole adequately conveyed to the jury the appropriate standards" ( People v Adams, 69 N.Y.2d 805, 806). The court also gave an appropriate charge on reasonable doubt ( see generally 1 CJI[NY] 6.20). Defendant's contention that the informant's testimony should have been precluded based on the attorney-client privilege is not preserved for our review ( see CPL 470.05) and, in any event, lacks merit ( see People v Belge, 59 A.D.2d 307, 309). Finally, the sentence is neither unduly harsh nor severe.
I respectfully dissent and would reverse. In my view, a conviction that is based upon the uncorroborated testimony of a jailhouse informant, or jailhouse "snitch," should be deemed as a matter of law to be supported by legally insufficient evidence. No such basis for reversal is available under existing law, however, and thus I would reverse the judgment on the ground that the verdict is against the weight of the evidence ( see CPL 470.20).
The facts of this case point out what I perceive to be a deficiency in the law. The only protection a defendant presently has against the admission in evidence of the testimony of a jailhouse informant, or jailhouse "snitch," is that afforded under CPL 60.50, which is inadequate. "The purpose of th[at] statute is to avert the danger that a crime may have been confessed when no crime in any degree has been committed by anyone" ( People v. Chico, 90 N.Y.2d 585, 590 [internal quotation marks omitted]; see People v. Lipsky, 57 N.Y.2d 560, 569-570, rearg denied 58 N.Y.2d 824; People v. Reade, 13 N.Y.2d 42, 45). CPL 60.50 in no way inhibits the admissibility of or limits the weight to be given to the testimony of a jailhouse informant, no matter how suspect that testimony may be. A description of a recent study concerning the unreliability of the testimony of jailhouse informants is found in Symposium: Thinking Outside the Box: Proposals for Change: Closing Remarks (23 Cardozo L Rev 899, 900-901 [2000]).
I respectfully suggest that the Legislature or the Court of Appeals fashion a remedy for this deficiency in the law. One possible remedy would be to duplicate the protection afforded a defendant from being convicted solely on the testimony of an accomplice. For example, CPL 60.22(1) requires that an accomplice's testimony be corroborated by evidence "tending to connect the defendant with the commission" of the crime. In enacting that statute, the Legislature thereby recognized that corroboration is appropriate because "the motivation behind an accomplice's testimony may have been to curry favor with the prosecution and receive lenient treatment" ( People v Moses, 63 N.Y.2d 299, 305). No similar protection is provided to a defendant with respect to the testimony of a jailhouse informant, although the same or even greater motivating factors may exist. The facts of this case amply support that conclusion. Had defendant herein been afforded similar protections, the jury could well have concluded that there was insufficient corroborative evidence to support a guilty verdict ( see People v. Glasper, 52 N.Y.2d 970, 971; People v. Fiore, 12 N.Y.2d 188, 201-202). In fact, the very questionable evidence placing defendant at the scene of the crime at a time other than during the commission of the crime would be insufficient corroboration as a matter of law ( see Moses, 63 N.Y.2d at 307-308). Consequently, I would reverse the judgment of conviction and dismiss the indictment.