| People v Delgado |
| 2008 NY Slip Op 03469 [50 AD3d 915] |
| April 15, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Aquiles Delgado, Appellant. |
—[*1] Thomas P. Zugibe, District Attorney, New City, N.Y. (Tina L. Guccione of counsel), forrespondent.
Appeals by the defendant from (1) a judgment of the County Court, Rockland County (Kelly,J.), rendered February 23, 2004, as amended after resentencing on August 15, 2005, and February5, 2007, pursuant to the Drug Law Reform Acts of 2004 and 2005 (L 2004, ch 738; L 2005, ch643) respectively, convicting him of criminal sale of a controlled substance in the first degree,criminal possession of a controlled substance in the second degree, criminal possession of acontrolled substance in the third degree, and criminal possession of a controlled substance in theseventh degree, under indictment No. 174/03, upon a jury verdict, and (2) a judgment of the samecourt, also rendered February 23, 2004, convicting him of conspiracy in the fourth degree, underindictment No. 167/03, upon his plea of guilty, and imposing sentences.
Ordered that the judgment, as amended, rendered under indictment No. 174/03, is modified,on the law, by vacating the convictions of criminal sale of a controlled substance in the firstdegree, criminal possession of a controlled substance in the second degree, and criminalpossession of a controlled substance in the third degree, and the sentences imposed thereon; as somodified, the judgment is affirmed, and those counts of the indictment are dismissed; and it isfurther,
Ordered that the judgment rendered under indictment No. 167/03 is reversed, the defendant'splea of guilty and the sentence imposed thereon are vacated, and the matter is remitted to theCounty Court, Rockland County, for further proceedings in accordance herewith.[*2]
The defendant was charged under indictment No. 174/03with having acted in concert with codefendants Eduardo Cortes, Lloyd Keyes, and JoseRodriguez to sell more than two ounces of cocaine to an undercover police officer on February14, 2003. All three codefendants pleaded guilty to reduced charges prior to the defendant's trial,and were the primary witnesses against him. According to this accomplice testimony, the cocainewas prepared and packaged at Cortes's apartment on the afternoon of the sale. Cortes diluted thecocaine by mixing it with crushed inositol vitamin pills, and the defendant then allegedlycompressed the mixture with a hand vise so that it would appear to be in rock form.
In addition to the accomplice testimony of the codefendants, the prosecution presentedevidence that an analysis of the cocaine sold to the undercover officer revealed the presence ofinositol, which is a common cutting agent. Furthermore, Cortes's girlfriend testified that she hadseen the defendant in Cortes's apartment on the morning of the sale, as well as on prioroccasions. However, she never observed any drug-packaging activities taking place, and left theapartment several hours before the codefendants Keyes and Rodriguez arrived to pick up thepackaged cocaine for sale to the undercover police officer. A search warrant executed at Cortes'sapartment approximately six weeks after the sale resulted in the recovery of drug paraphernalia,including scales, several bottles of inositol powder, and additional cocaine.
At the close of the People's case, the defendant moved to dismiss all counts against himstemming from the February 14, 2003 cocaine sale upon the ground that there was insufficientindependent evidence corroborating the accomplice testimony of his codefendants. The trial courtdenied the defendant's motion, and thereafter he was found guilty of criminal sale of a controlledsubstance in the first degree and criminal possession of a controlled substance in the second andthird degrees in connection with the subject sale.
On appeal, the defendant continues to maintain that the prosecution failed to presentsufficient corroborative evidence to establish his guilt of the counts of the indictment relating tothe February 14, 2003 sale. We agree. In New York, "[a] defendant may not be convicted of anyoffense upon the testimony of an accomplice unsupported by corroborative evidence tending toconnect the defendant with the commission of such offense" (CPL 60.22 [1]; see People vBesser, 96 NY2d 136, 143 [2001]; People v Montefusco, 44 AD3d 879 [2007]). "The corroborationmust be independent of, and may not draw its weight and probative value from, the accomplice'stestimony" (People v Steinberg, 79 NY2d 673, 683 [1992]; see People v Moses,63 NY2d 299, 306 [1984]). Although the corroborative evidence need not establish everyelement of the crimes charged, it must tend to connect the defendant to the offenses (seePeople v Besser, 96 NY2d at 143-144; People v Breland, 83 NY2d 286, 294 [1994];People v Montefusco, 44 AD3d879 [2007]).
Here, the testimony of the defendant's three accomplices was not sufficiently corroborated byadditional independent evidence to sustain the defendant's conviction of the counts of theindictment stemming from the February 14, 2003 sale. While the testimony of Cortes's girlfriendestablished that the defendant was in Cortes's apartment on the morning of the sale, it did notprovide independent evidence that the defendant was in the apartment later in the day when thecocaine was being packaged for sale, or connect him to the drug operation in any manner.Furthermore, the evidence that the cocaine sold to the undercover officer was diluted withinositol, and the recovery of drug paraphernalia and additional cocaine from Cortes's apartmentpursuant to a search warrant executed approximately six weeks after the sale, did not constituteindependent corroboration connecting the defendant with the drug packaging activities thatoccurred in Cortes's [*3]apartment prior to the sale. Accordingly,the defendant's convictions of criminal sale of a controlled substance in the first degree, andcriminal possession of a controlled substance in the second and third degrees, which stem fromthe subject sale, must be vacated and those counts of the indictment dismissed (see People v Montefusco, 44 AD3d879 [2007]; People v Gomez,39 AD3d 668 [2007]; Matter ofShakir J., 8 AD3d 281 [2004]; People v Robinson, 297 AD2d 296 [2002]). Wenote that the defendant's remaining conviction of criminal possession of a controlled substance inthe seventh degree under indictment No. 174/03 was not connected to the sale on February 14,2003 and thus need not be vacated.
The defendant entered his plea of guilty under indictment No. 167/03 in consideration of apromise that he would receive a sentence of two to four years of imprisonment to runconcurrently with the sentences imposed for the four offenses for which he was convicted underindictment No. 174/03. "[W]hen a guilty plea is induced by the court's explicit promise that thedefendant will receive a lesser sentence to run concurrently with a sentence in another case, andthat conviction is overturned, the defendant may withdraw his plea and face the indictment, sincethe promise cannot be kept" (People vPichardo, 1 NY3d 126, 129 [2003]; see People v Rowland, 8 NY3d 342 [2007]). Under thecircumstances, since we are vacating all but one of the defendant's convictions under indictmentNo. 174/03, leaving only the misdemeanor conviction for which he was sentenced to one year ofimprisonment, the defendant should have been permitted to withdraw his plea (see People v Rowland, 8 NY3d342 [2007]; People v Pichardo,1 NY3d 126 [2003]). Mastro, J.P., Covello, Eng and Belen, JJ., concur.