| People v Jones |
| 2018 NY Slip Op 08205 [166 AD3d 1394] |
| November 29, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Stephanie D. Jones, Appellant. |
Barrett D. Mack, Albany, for appellant.
P. David Soares, District Attorney, Albany (Emily Schultz of counsel), forrespondent.
Clark, J. Appeal from a judgment of the Supreme Court (Breslin, J.), rendered April22, 2016 in Albany County, upon a verdict convicting defendant of the crimes of assaultin the second degree, leaving the scene of a serious physical injury collision withoutreporting and reckless driving.
In the early morning hours of February 27, 2015, defendant and her friend, JoveyanHarriott, left a bar after several hours of drinking together and ultimately walked toHarriott's car, at which point one of them got into the driver's seat. The driver thereafterstruck several vehicles and a pedestrian (hereinafter the victim), causing him seriousbodily injury. Defendant and Harriott then exited their vehicle, which had crashed into acar parked at the gas station where the victim had been walking, and they later left thescene on foot without reporting the incident and before the police arrived. Defendant wassubsequently charged with, as relevant here, assault in the first degree, assault in thesecond degree, leaving the scene of a serious physical injury collision without reporting,criminal mischief in the third degree and reckless driving. Following a jury trial, at whichHarriott testified against defendant, defendant was convicted of assault in the seconddegree, leaving the scene of a serious physical injury collision without reporting andreckless driving. Defendant was sentenced to an aggregate prison term of 6 to 8 years, aswell as a period of postrelease supervision. Defendant now appeals.
Defendant's sole contention on appeal is that Supreme Court committed reversibleerror when it denied her request for an accomplice charge relating to Harriott. Pursuant toCPL 60.22 (1), "[a] defendant may not be convicted of any offense upon the testimony ofan accomplice unsupported by corroborative evidence tending to connect the defendantwith the commission of such offense." For purposes of the corroboration requirement, anaccomplice is "a witness in a criminal action who, according to evidence adduced in suchaction, may reasonably be considered to have participated in: (a) [t]he offense charged;or (b) [a]n offense based upon the same or some of the same facts or conduct whichconstitute the offense charged" (CPL 60.22 [2]). If the trial court concludes, based uponthe undisputed evidence, that "the jury could [*2]reasonably reach no other conclusion but that" the witnessis an accomplice within the meaning of CPL 60.22 (2), then the witness is an accompliceas a matter of law and the court must instruct the jury that the witness is an accomplice,subject to the statutory corroboration requirement (People v Besser, 96 NY2d136, 147 [2001]; see People vSage, 23 NY3d 16, 23 [2014]; People v Caban, 5 NY3d 143, 153 [2005]). If, however, thetrial court finds that "different inferences may reasonably be drawn from the proofregarding complicity" (People v Basch, 36 NY2d 154, 157 [1975]; accordPeople v Caban, 5 NY3d at 152-153), then the court must submit that factualquestion to the jury for resolution and instruct the jury "to apply the corroborationrequirement only if [it] makes a factual finding that the witness is an accomplice in fact"(People v Sage, 23 NY3d at 24; see People v Sweet, 78 NY2d 263, 266[1991]).
Notwithstanding the fact that Harriott was initially charged with the same crimes asdefendant, but entered into a plea agreement that would allow her to plead guilty todisorderly conduct in exchange for her full cooperation in defendant's criminalprosecution, the evidence does not support the conclusion that Harriott was anaccomplice under CPL 60.22 (2) (see People v Kocsis, 137 AD3d 1476, 1480 [2016]). Attrial, Harriott and one other eyewitness affirmatively identified defendant as the driver ofthe vehicle that struck and seriously injured the victim, and DNA evidence taken fromthe driver's side airbag matched defendant. Additionally, although Harriott denied havingany knowledge when she left the scene that the victim had been hit, the victim testified tooverhearing a conversation between defendant and Harriott in which Harriottasserted—in response to defendant's stated intention to flee—that theyshould help the victim. Considering the charges and these underlying circumstances,there is no reasonable view of the evidence under which Harriott—as thepassenger—could be considered to have participated in the charged offenses or anoffense based upon the same or some of the same facts or conduct that constitute thecharged offenses (see CPL 60.22 [2]; People v Tucker, 72 NY2d 849,850 [1988]; People vAnderson, 118 AD3d 1138, 1143-1144 [2014], lv denied 24 NY3d 1117[2015]; compare People vWhyte, 144 AD3d 1393, 1394-1395 [2016]). Although there were someinconsistencies in the eyewitness testimony, the factual issues presented by thoseinconsistencies implicated the question of whether Harriott, rather than defendant, wasthe driver of the vehicle; they did not, as defendant contends, raise a question as towhether Harriott was complicit in the charges against defendant. Accordingly, SupremeCourt properly denied defendant's request for an accomplice charge (see People vKocsis, 137 AD3d at 1480; People v Anderson, 118 AD3d at1143-1144).
Egan Jr., J.P., Mulvey, Aarons and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.