Opinion
July 10, 1967
Appeal by defendant from an amended judgment of the Supreme Court, Kings County, rendered April 28, 1965, convicting him, after trial, of the crime of murder in the first degree, and resentencing him to State prison for life, after a so-called "second stage" proceeding, conducted under section 1045-a of the Penal Law. Judgment reversed on the law and the facts and new trial ordered. As conceded by the District Attorney in his brief, the charge of the learned trial court with respect to the admissions made by the then codefendant Wilson, as binding upon all of the defendants, was prejudicially erroneous to the appellant. We have examined the appellant's specification of error with respect to the testimony corroborating the accomplice and then codefendant Montas. Whether that testimony adequately satisfied the requirements of the statute (Code Crim. Pro., § 399) constituted a question of fact for the jury. The People were under no obligation to corroborate the testimony of the accomplice by proving the whole crime, but the proof furnished was sufficient if it were found by the jury fairly to connect the defendant with the commission of the crime ( People v. Hooghkerk, 96 N.Y. 149, 162; People v. Kress, 284 N.Y. 452, 460; People v. Elliott, 106 N.Y. 288, 292; People v. Dixon, 231 N.Y. 111, 116, 117; People v. Fiore, 12 N.Y.2d 188, 201-202; People v. Hayes, 210 App. Div. 549, 550-551). Under this rule the People were not obliged to furnish independent proof that the appellant actually robbed and shot the decedent. It suffices if the facts and circumstances developed by the nonaccomplice witnesses tended, if believed, to sustain that conclusion. In addition, in light of the foregoing rule, the evidence before the Grand Jury was sufficient. Rabin, Acting P.J., Hopkins, Benjamin, Munder and Nolan, JJ., concur.