| People v Montefusco |
| 2007 NY Slip Op 07869 [44 AD3d 879] |
| October 16, 2007 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Raymond Montefusco, Appellant. |
—[*1] Thomas J. Spota, District Attorney, Riverhead, N.Y. (Michael Blakey and Anne E. Oh ofcounsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County (Hudson, J.),rendered June 6, 2006, convicting him of burglary in the third degree (three counts), receivingreward for official misconduct in the second degree (three counts), official misconduct (sixcounts), and criminal facilitation in the fourth degree (three counts), upon a jury verdict, andimposing sentence.
Ordered that the judgment is modified, on the law, by vacating the convictions on counts sixthrough fifteen of the indictment, vacating the sentences imposed thereon, and dismissing thosecounts of the indictment; as so modified, the judgment is affirmed.
The defendant, a former Suffolk County Police Officer, was convicted, after a jury trial, ofburglary in the third degree and related offenses in connection with the November 1999 burglaryof a King Kullen supermarket, and two additional burglaries and related charges involvingincidents that occurred in July 2000 at a Jiffy Lube store and at a bar called Parsnips. In eachcase, the crimes allegedly were committed by a number of individuals acting in concert with thedefendant, who, in each instance, acted primarily as a lookout.
The defendant contends that the accomplice testimony upon which the People relied toestablish his participation in the three burglaries was insufficiently corroborated and, therefore,the evidence was legally insufficient to support the convictions. In New York, "[a] defendantmay [*2]not be convicted of any offense upon the testimony of anaccomplice unsupported by corroborative evidence tending to connect the defendant with thecommission of such offense" (CPL 60.22 [1]). Although the corroborative evidence need notestablish each element of the offense, it must tend to connect the defendant to the crime charged(see People v Besser, 96 NY2d 136, 143-144 [2001]; People v Breland, 83 NY2d286, 292-293 [1994]; People v Steinberg, 79 NY2d 673, 683 [1992]; People vRobinson, 297 AD2d 296, 297 [2002])." 'Matters in themselves of seeming indifference. . . may so harmonize with the accomplice's narrative as to have a tendency tofurnish the necessary connection between the defendant and the crime' " (People vMorhouse, 21 NY2d 66, 74 [1967], quoting People v Dixon, 231 NY 111, 116-117[1921]). "So long as the statutory minimum is met, it is for the jury to decide whether thecorroboration satisfies them that the accomplice is telling the truth" (People v Steinberg,79 NY2d at 683; see People v Robinson, 297 AD2d at 297).
Contrary to the defendant's contention, the accomplice testimony regarding the King Kullenburglary was sufficiently corroborated at the trial by testimony from nonaccomplice witnessesestablishing, inter alia, that the defendant was near the scene at the time of the burglary, that hetook it upon himself to respond to several reports of burglar alarms being triggered at thepremises, that he falsely reported that the location was secure, and that he discouraged otherpolice units from responding. There was also independent evidence that one of the accompliceswas a friend of his and the co-owner of a business that had paid him money (see CPL60.22). Thus, we find that the verdict of guilt on counts one through five of the indictment,charging the burglary of the King Kullen supermarket and related crimes, is supported by legallysufficient evidence (see People vForino, 39 AD3d 664 [2007], lv denied 9 NY3d 865 [2007]; People v Maelia, 37 AD3d 619[2007]; People v Watkins, 5 AD3d510 [2004]). Moreover, upon the exercise of our factual review power (see CPL470.15 [5]), we are satisfied that the verdict of guilt on those counts was not against the weight ofthe evidence (see People v Romero,7 NY3d 633 [2006]).
With respect to the Jiffy Lube and Parsnip burglaries, however, we agree with the defendant'scontention that the proof offered to corroborate the accomplice testimony fell short of thestatutory minimum (see CPL 60.22) and, therefore, the convictions relating to those twoincidents were not supported by legally sufficient evidence. The fact that two eyewitnesses sawtwo unidentified individuals inside the Jiffy Lube store on the night it was burglarized, andevidence that the defendant owned a Nissan Xterra, which was the same type of car one of theaccomplices allegedly saw him driving on the night of the Parsnips burglary, are insufficient,without more, to connect the defendant to those crimes. Moreover, in light of the time spanbetween the King Kullen burglary and the two other charged burglaries, and the different allegedparticipants, the corroborative evidence sufficient to support the convictions for the crimescommitted at the King Kullen supermarket cannot serve, standing alone, to support theconvictions arising out of the other two incidents (cf. People v Glanda, 5 AD3d 945, 952 [2004]; People vSpencer, 272 AD2d 682, 684 [2000]). Accordingly, the defendant's convictions under countssix through fifteen of the indictment must be vacated and those counts dismissed (see Peoplev Robinson, 297 AD2d 296 [2002]).
The defendant's challenge to the court's circumstantial evidence charge, as well as his claimsof prosecutorial misconduct, are unpreserved for appellate review (see CPL 470.05 [2]),and, in any event, do not warrant reversal. We note that inasmuch as this was not a whollycircumstantial case, no special charge on circumstantial evidence was required (see People vDaddona, 81 NY2d 990 [1993]; People v Wiggins, 31 AD3d 584 [2006]).
The defendant's remaining contentions are without merit. Schmidt, J.P., Goldstein, Skelosand Fisher, JJ., concur.