| People v Medeiros |
| 2014 NY Slip Op 02354 [116 AD3d 1096] |
| April 3, 2014 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, vEmanuel P. Medeiros, Appellant. |
—[*1] John M. Muehl, District Attorney, Cooperstown (Michael F. Getman of counsel), forrespondent.
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 thecrimes of criminal possession of a weapon in the third degree, criminal sale of a firearmin 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 thesecond degree arising out of his sale of a .22 caliber handgun to Dustin Lewandowskiand subsequent threats against Lewandowski for providing a statement to policeidentifying him as the seller. Following a jury trial at which Lewandowski testified as theprincipal witness for the People, defendant was convicted of attempted intimidating avictim or witness in the second degree, as a lesser included offense, as well as theremaining counts of the indictment. County Court sentenced him to a term ofimprisonment, and this appeal ensued.
Defendant's contention that he was deprived of his right to testify before the grandjury is without merit. Defense counsel was given notice on a Thursday that the Peopleintended to present matters charged in pending felony complaints to the grand jury on thefollowing Tuesday. Defense counsel responded the next day stating that she could notadvise as to whether defendant wished to testify until she was informed whether thegrand jury would hear the "weapon charge or the witness charge or both." The Peoplenotified defense counsel the next business day (the [*2]day prior to the presentment) that all pending chargeswould be presented. No response was forthcoming. Under these circumstances, we findthat defendant was accorded a reasonable time to exercise his right to appear and testifybefore the grand jury, but failed to notify the People in writing of his intention to do so(see CPL 190.50 [5] [a]; People v Sawyer, 96 NY2d 815, 816 [2001]; People v Small, 112 AD3d857, 858 [2013]; People vHenderson, 74 AD3d 1567, 1568 [2010]; People v Ballard, 13 AD3d 670, 671 [2004], lvdenied 4 NY3d 796 [2005]). As such, his motion to dismiss the indictment on thisbasis was properly denied.
We agree with defendant that County Court erred in failing to charge the jury thatLewandowski was an accomplice as a matter of law with respect to the weaponpossession and sale charges. "A defendant may not be convicted of any offense upon thetestimony of an accomplice unsupported by corroborative evidence tending to connectthe defendant with the commission of such offense" (CPL 60.22 [1]). Pursuant to CPL60.22, an accomplice is a person who "may reasonably be considered to have participatedin . . . [t]he offense charged; or . . . [a]n offense basedupon the same or some of the same facts or conduct which constitute the offensecharged" (CPL 60.22 [2] [emphasis added]). Notably, the definition of anaccomplice for the purpose of the corroboration rule differs significantly from thedefinition of an accomplice for purposes of accomplice criminal liability (see Peoplev Berger, 52 NY2d 214, 219 [1981]; compare CPL 60.22 with PenalLaw § 20.00). CPL 60.22 broadens the definition of an accomplice " 'in order toprovide a more equitable, operable and consistent standard for the courts in determiningwhen the requirement of corroboration is applicable' " (People v Basch, 36 NY2d154, 157 [1975], quoting People v Beaudet, 32 NY2d 371, 378 [1973]). Thus, tobe an accomplice for corroboration purposes, the witness "must somehow be criminallyimplicated and potentially subject to prosecution for the conduct or factual transactionrelated to the crimes for which the defendant is on trial" (People v Adams, 307AD2d 475, 476 [2003], lv denied 1 NY3d 566 [2003]; see People vFielding, 39 NY2d 607, 610 [1976]; People v Basch, 36 NY2d at 157).
Here, the evidence established that Lewandowski did not have a license to possessthe handgun he bought from defendant. Thus, although Lewandowski could not besubject to prosecution for criminal sale of a firearm, he was potentially subject toprosecution for—and was, in fact, charged with—criminal possession of aweapon in the fourth degree since he unlawfully possessed the weapon as soon as hemade the purchase (see Penal 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 forcorroboration purposes (seePeople v Knightner, 11 AD3d 1002, 1004 [2004], lv denied 4 NY3d745 [2004]; People v Webster, 123 AD2d 488, 488-489 [1986]; People vTune, 103 AD2d 990, 991-992 [1984]), here Lewandowski was an accomplice as amatter of law with respect to defendant's weapon sale and possession charges since hecould have been (and was) charged with a crime "based upon some of the same facts orconduct" upon which the charges against defendant were based (CPL 60.22 [2] [b];see People v Sweet, 78 NY2d 263, 266 [1991]; People v Adams, 307AD2d at 477; compare People v Dickenson, 293 AD2d 867, 868-869 [2002]).County Court was therefore required to instruct the jury that Lewandowski was anaccomplice as a matter of law as to those charges, and that defendant could not beconvicted on Lewandowski's testimony absent corroborative evidence (see CPL60.22 [1]). "Failure to so charge the jury was necessarily harmful error" (People vJenner, 29 NY2d 695, 696-697 [1971] [citation omitted]; accord People vMinarich, 46 NY2d 970, 971 [1979]; see People v Adams, 307 AD2d at 478;People v Artis, 182 AD2d 1011, 1013 [1992]; People v Arnott, 143AD2d 761, 763 [1988]; see also People v Martinez, 83 NY2d 26, 35-36 [1993],cert denied 511 US 1137 [1994]). Accordingly, defendant's convictions forcriminal possession of a weapon in the third degree and criminal sale of a firearm in thethird degree must be reversed and a new trial [*3]orderedthereon.
Defendant also claims that his convictions on the weapon possession and salecharges were not supported by legally sufficient evidence corroborating the accomplicetestimony. We disagree. "The corroborative evidence need not show the commission ofthe crime; it need not show that defendant was connected with the commission of thecrime. It is enough if it tends to connect the defendant with the commission of the crimein such a way as may reasonably satisfy the jury that the accomplice is telling the truth"(People v Reome, 15 NY3d188, 191-192 [2010] [internal quotation marks and citations omitted]; see Peoplev Breland, 83 NY2d 286, 293 [1994]). "Corroborative proof is not renderedincompetent merely because an innocent interpretation is possible because thecorroboration 'need not, as must circumstantial evidence, lead exclusively to theinference of the defendant's guilt' " (People v McAndris, 300 AD2d 1, 2 [2002],lv denied 99 NY2d 630 [2003], quoting People v Morhouse, 21 NY2d66, 74 [1967]).
Here, although the proof regarding defendant's possession and sale of the firearmcame solely from the testimony of Lewandowski, the People presented independentevidence establishing that, shortly after defendant was arrested on those charges, policeresponded to a report of an altercation between defendant and Lewandowski concerninga firearm. Upon responding to the incident, the police officer testified that Lewandowskiappeared scared, was "shaking" and refused to speak to the officer until defendant leftthe premises. Mindful of the "minimal requirements" of CPL 60.22 (People vJones, 85 NY2d 823, 825 [1995]), we find that this evidence "provide[s] a suitablenexus supporting a reasonable inference that the defendant was involved" (People vMensche, 276 AD2d 834, 835 [2000], lv denied 95 NY2d 966 [2000];see People v Breland, 83 NY2d at 293; People v Morhouse, 21 NY2d at74; People v Brink, 78AD3d 1483, 1485 [2010], lv denied 16 NY3d 742 [2011]). Together withLewandowski's testimony, the evidence was legally sufficient to support each conviction(see People v Bleakley, 69 NY2d 490, 495 [1987]; People v Berry, 78 AD3d1226, 1228 [2010], lv denied 16 NY3d 828 [2011]).[FN*]Having also evaluated the evidence in a neutral light while according deference to thejury's credibility assessments, we find that the verdict was not against the weight of theevidence (see People vRomero, 7 NY3d 633, 644 [2006]; People v Self, 75 AD3d 924, 926 [2010], lv denied15 NY3d 895 [2010]).
Lahtinen, Rose and Egan Jr., JJ., concur. Ordered that the judgment is modified, onthe law, by reversing defendant's convictions of criminal possession of a weapon in thethird degree and criminal sale of a firearm in the third degree under counts 1 and 2 of theindictment and vacating the sentences imposed thereon; matter remitted to the CountyCourt of Otsego County for a new trial on said counts; [*4]and, as so modified, affirmed.
Footnote *: Because his convictionsare supported by legally sufficient trial evidence, defendant's challenges to the legalsufficiency of the evidence presented to the grand jury and the instructions given duringthat proceeding are precluded (see CPL 210.30 [6]; People v Sorrell, 108 AD3d787, 789 n 2 [2013]; People v Serrano, 70 AD3d 1054, 1055 [2010], lvdenied 14 NY3d 892 [2010]).