| People v Highsmith |
| 2015 NY Slip Op 00120 [124 AD3d 1363] |
| January 2, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vJames E. Highsmith, Also Known as James E. Highsmith, III,Appellant. |
Law Offices of Joseph D. Waldorf, P.C., Rochester (Joseph D. Waldorf of counsel),for defendant-appellant.
Sandra Doorley, District Attorney, Rochester (Robert J. Shoemaker of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Melchor E. Castro, A.J.),rendered October 28, 2011. The judgment convicted defendant, after a nonjury trial, ofburglary in the first degree and burglary in the second degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: On appeal from a judgment convicting him, after a nonjury trial, ofburglary in the first degree (Penal Law § 140.30 [2]) and burglary in thesecond degree (§ 140.25), defendant contends that the People did notsufficiently corroborate the testimony of the accomplices, as required by CPL 60.22 (1).We reject that contention. It is well settled that " '[t]he corroborative evidenceneed not show the commission of the crime . . . It is enough if it tends toconnect the defendant with the commission of the crime in such a way as may reasonablysatisfy the jury that the accomplice is telling the truth' " (People v Reome, 15 NY3d188, 192-193 [2010], quoting People v Dixon, 231 NY 111, 116 [1921])."[E]vidence that defendant was present at the scene of the crime or was with theaccomplices shortly before or after the crime can, under certain circumstances, providethe necessary corroboration of the accomplices' testimony" (People v Bolden, 161AD2d 1126, 1126-1127 [1990], lv denied 76 NY2d 853 [1990]). Here, threeaccomplices testified that defendant planned the crime along with them, accompaniedthem to the crime, acted as a lookout during the crime, accompanied them to a motelroom immediately after the crime, and accepted his share of the proceeds of the crime,including cash and drugs. An employee of the motel testified that defendant paid for thatmotel room in cash, and defendant gave a statement to the police admitting that heaccompanied the codefendants to that room and paid for the room. The employee'stestimony and defendant's statement " 'harmonized' " with the accomplicetestimony (People v McRae,15 NY3d 761, 762 [2010], rearg denied 15 NY3d 902 [2010]). Furthermore,mail addressed to defendant was recovered from one of the vehicles used in thecommission of the crime (seegenerally People v Rodriguez, 22 NY3d 917, 918 [2013]).
Contrary to defendant's contention, viewing the evidence in the light most favorableto the People (see People v Williams, 84 NY2d 925, 926 [1994]), we concludethat it is legally sufficient to support the conviction (see generally People vBleakley, 69 NY2d 490, 495 [1987]). Contrary to defendant's further contention,viewing the evidence in light of the elements of the crimes in this nonjury trial (see People v Danielson, 9NY3d 342, 349 [2007]), we conclude that the verdict is not against the weight of theevidence (see generally Bleakley, 69 NY2d at 495).
Defendant's contentions with respect to the sufficiency of the evidence submitted tothe grand jury are "not reviewable on appeal because the grand jury minutes are notincluded in the record on appeal" (People v Dilbert, 1 AD3d 967, 967-968 [2003], lvdenied 1 NY3d 626 [2004]; see generally People v Lane, 47 AD3d 1125, 1127 n 3[2008], lv denied 10 NY3d 866 [2008]). In any event, "[i]t is well established that'[t]he validity of an order denying any motion [to dismiss an indictment for legalinsufficiency of the grand jury evidence] is not reviewable upon an appeal from anensuing judgment of conviction based upon legally sufficient trial evidence' " (People v Afrika, 79 AD3d1678, 1679 [2010], lv denied 17 NY3d 791 [2011], quoting CPL 210.30 [6])and, as we concluded herein, the trial evidence is legally sufficient. Finally, inasmuch asthe evidence, the law, and the circumstances of this case, viewed in totality and as of thetime of the representation, establish that defense counsel provided meaningfulrepresentation, we reject defendant's contention that he was denied effective assistance ofcounsel (see generally People v Baldi, 54 NY2d 137, 147 [1981]).
We have reviewed defendant's remaining contention and conclude that it lacks merit.Present—Smith, J.P., Peradotto, Carni, Valentino and DeJoseph, JJ.