| People v Reome |
| 2009 NY Slip Op 05804 [64 AD3d 1201] |
| July 10, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Nathan J.Reome, Appellant. |
—[*1] Nathan J. Reome, defendant-appellant pro se. William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel), forrespondent.
Appeal from a judgment of the Onondaga County Court (William D. Walsh, J.), renderedJuly 19, 2006. The judgment convicted defendant, upon a jury verdict, of rape in the first degree(three counts) and conspiracy in the fourth degree.
It is hereby ordered that the judgment so appealed from is modified as a matter of discretionin the interest of justice by directing that the sentences shall run concurrently with respect toeach other and as modified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him, following a jury trialwith two codefendants, of three counts of rape in the first degree (Penal Law § 130.35 [1])and one count of conspiracy in the fourth degree (§ 105.10 [1]). We previously rejectedthe contention of one of the codefendants on his appeal that County Court abused its discretionin denying his motion to sever his trial from that of defendant and the other codefendant (People v Buccina, 62 AD3d 1252[2009]), and we likewise conclude here that the court did not abuse its discretion in denying themotion of defendant to sever his trial from that of his codefendants. "The evidence againstdefendant and his codefendants was essentially identical, and the respective defenses were not inirreconcilable conflict" (id. at 1253; see People v Bolling, 49 AD3d 1330, 1332 [2008]; cf. People vCardwell, 78 NY2d 996, 997-998 [1991]; see generally People v Mahboubian, 74NY2d 174, 184-185 [1989]). Viewing the evidence in light of the elements of the crimes ascharged to the jury (see People vDanielson, 9 NY3d 342, 349 [2007]), we further conclude that the verdict is not againstthe weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987])."The testimony of the People's witnesses was not so unworthy of belief as to be incredible as amatter of law . . . and thus it cannot be said that the jury failed to give the evidencethe weight it should be accorded" (People v Rufus, 56 AD3d 1175, 1175 [2008], lv denied 11NY3d 930 [2009] [internal quotation marks omitted]; see generally Bleakley, 69 NY2dat 495).
We reject the further contention of defendant that the testimony of the accomplice was notsufficiently corroborated (see CPL 60.22 [1]). "[T]he purpose of the [corroboration]requirement is not to establish defendant's guilt independently but to provide some basis for the[*2]jury to conclude the accomplice testimony is credible"(People v Besser, 96 NY2d 136, 143 [2001]). "[M]uch less evidence and of a distinctlyinferior quality is sufficient to meet the slim corroborative linkage to otherwise independentlyprobative evidence from [an] accomplice[ ]" (People v Breland, 83 NY2d 286, 294[1994]). Here, the People met their burden by offering "some nonaccomplice evidence 'tendingto connect' defendant to the crime[s] charged" (96 NY2d at 143-144). Indeed, we conclude thatthe victim's testimony concerning, inter alia, the number of attackers and the method of theattack "harmonize[s] with the accomplice's narrative so as to provide the necessarycorroboration" (id. at 143 [internal quotation marks omitted]). "Once the statutoryminimum pursuant to CPL 60.22 (1) was met, it was for the jurors to decide whether thecorroborating testimony satisfied them that the accomplice[ was] telling the truth" (People vPierce, 303 AD2d 966, 966 [2003], lv denied 100 NY2d 565 [2003]). We also rejectthe contention of defendant in his main and pro se supplemental briefs that he was denied hisright to a fair trial based on the cumulative effect of the alleged errors at trial (see People v Hall, 53 AD3d 1080,1083 [2008], lv denied 11 NY3d 855 [2008]; People v Dixon, 50 AD3d 1519, 1520 [2008], lv denied 10NY3d 958 [2008]).
Defendant contends in his pro se supplemental brief that the court punished him for assertinghis right to a trial by imposing a harsher sentence than he would have received had he pleadedguilty. Even assuming, arguendo, that defendant preserved his contention for our review, weconclude that "[a] review of the record shows no retaliation or vindictiveness against thedefendant for electing to proceed to trial" (People v Shaw, 124 AD2d 686, 686 [1986],lv denied 69 NY2d 750 [1987]). We agree with defendant, however, that the sentence isunduly harsh and severe under the circumstances of this case, and we therefore modify thesentence as a matter of discretion in the interest of justice by directing that the sentences shallrun concurrently with respect to each other (see CPL 470.15 [6] [b]). The contention ofdefendant in his pro se supplemental brief concerning the alleged legal insufficiency of theevidence is unpreserved for our review (see People v Gray, 86 NY2d 10, 19 [1995]). Wehave considered the remaining contentions of defendant in his pro se supplemental brief andconclude that they are without merit. Peradotto and Gorski, JJ., concur.
Smith, J., concurs in the following memorandum.
Smith, J. (concurring). I agree with the majority that the People sufficiently corroborated theaccomplice testimony by presenting nonaccomplice evidence "tending to connect the defendantwith the commission of" the crimes (CPL 60.22 [1]). I further conclude that the evidence uponwhich the majority relies satisfies the corroboration requirement. I write separately, however, tohighlight an additional piece of evidence that in my view also tends to connect defendant withthe commission of the crimes.
The crimes were allegedly committed in a vehicle by defendant, two codefendants, and anaccomplice. The accomplice pleaded guilty and testified against defendant and the twocodefendants, and thus his testimony required corroboration. The victim testified that sheinitially did not remember many of the details of the crimes, but she then testified that "I couldtell you right now I remember a few extra things that I probably didn't remember before andthat's because I'm sitting in a room with three people that I can tell you they sat in the car." Iconclude that, although such testimony was insufficient to constitute an in-court identification ofdefendant, it constitutes an additional piece of evidence "tending to connect the defendant withthe commission of" the crimes (CPL 60.22 [1]).
Hurlbutt, J.P., and Martoche, J., dissent and vote to reverse in accordance with the followingmemorandum.
Hurlbutt, J.P., and Martoche, J. (dissenting). We respectfully dissent. Pursuant to CPL 60.22(1), "[a] defendant may not be convicted of any offense upon the testimony of an accompliceunsupported by corroborative evidence tending to connect the defendant with the commission ofsuch offense." As noted in People vDelgado (50 AD3d 915, 917 [2008], quoting People v Steinberg, 79 NY2d 673,683 [1992]), " '[t]he corroboration must be independent of, and may not draw its weight andprobative [*3]value from, the accomplice's testimony.' " Further,"[a]lthough the corroborative evidence need not establish every element of the crimes charged, itmust tend to connect the defendant to the offenses" (id.).
In our view, the People failed to offer any independent evidence sufficient to corroborate thetestimony of the accomplice identifying defendant as one of the perpetrators of the rape of thevictim, and thus County Court should have granted defendant's motion for a trial order ofdismissal on that ground.
At trial, the victim neither identified nor described the four attackers who raped her.Although there was DNA evidence implicating three of the perpetrators, including theaccomplice who entered a guilty plea and testified at trial, there was no such evidence withrespect to defendant. Consequently, corroboration of the accomplice's testimony identifyingdefendant as one of the perpetrators was mandated by CPL 60.22 (1). We cannot agree with theconclusion of the plurality that the necessary corroboration was furnished by the testimony of thevictim. The consistency between the testimony of the victim and the accomplice with respect tothe details of the crimes "tends to support the accomplice['s] credibility, but it does notreasonably tend to connect the defendant with the crime[s]" (People v Nieto, 97 AD2d774, 776 [1983]; see People v Marmulstein, 109 AD2d 948, 949 [1985]; seegenerally People v Glasper, 52 NY2d 970, 971 [1981]; People v Hudson, 51 NY2d233, 238-239 [1980]).
The People's reliance on defendant's friendship with two of the codefendants and defendant'stelephone conversations with them before and after the occurrence of the crimes as corroborationof the accomplice's testimony is misplaced. "Defendant's association with the [codefendants], inand of itself, does not independently establish any criminal activity on his part"(Marmulstein, 109 AD2d at 949). The only other arguably corroborative evidence reliedon by the People is testimony that, when approached by the police, defendant was "extremelynervous," and that, when being arrested and having his buccal swab taken for DNA testing, hevomited several times. We agree with defendant that such purported evidence of consciousnessof guilt "was so inherently weak that it did not satisfy the corroboration requirement of CPL60.22" (People v Moses, 63 NY2d 299, 309 [1984]; see People v Reddy, 261 NY479, 487-488 [1933]).
Finally, we agree with the implicit conclusion of the plurality that there is no corroborationin the trial testimony of the victim relied on by the concurrence. We therefore would reverse thejudgment, grant defendant's motion for a trial order of dismissal, dismiss the indictment, andremit the matter to County Court for proceedings pursuant to CPL 470.45.Present—Hurlbutt, J.P., Martoche, Smith, Peradotto and Gorski, JJ.