People v. Reome

Jones, J. (dissenting).

Defendant raises the question whether his conviction was obtained in violation of CPL 60.22 (1). Because the evidence presented to corroborate the accomplice’s testimony did not meet the strictures of CPL 60.22 (1), I respectfully dissent.

The rule that requires the corroboration of an accomplice’s testimony is a safeguard that recognizes the questionable reliability of the testimony of an accomplice. It requires independent support of the testimony of a person who admits that he participated in a crime along with his confederates, yet points the finger at another for his own personal benefit. 1 Accordingly, CPL 60.22 (1) requires “corroborative evidence tending to connect the defendant with the commission of such offense.” I agree with the two dissenting Justices of the Appellate Division *196 ( 64 AD3d 1201, 1204 [2009]) that the corroborating evidence offered by the People in this case fails to identify defendant as a perpetrator.

The majority cites a laundry list of purportedly corroborative evidence. In my view, the evidence offered up, which fails to link defendant to the crime, does not satisfy CPL 60.22 (1) or the relevant case law.

First, the People argue that because the accomplice was “correct” in three out of four of his identifications (of himself and two codefendants), which were confirmed by DNA evidence, he was “correct” when he identified defendant as a participant in the crime, even though no DNA evidence linking him to the crime was recovered from defendant. In short, the People seek to explain the lack of corroborating DNA evidence from defendant by relying on the accomplice who states he supplied defendant with a condom, and initially lied about certain details of his involvement. 2 Thus, in an interesting twist of logic, the People used the lack of corroborating DNA evidence from defendant, which would normally exculpate a defendant in a sex crime, to inculpate defendant here.

Further, the People argue there was a close friendship between defendant and codefendant Buccina, and evidence of telephone calls between them before and after the crime. Without any proof of the substance of these calls, no reasonable conclusion can be drawn concerning their corroborative value. These calls do not tend to identify defendant as a perpetrator of the offense. Further, an association between a defendant and the codefendants is not necessarily sufficient to establish that defendant was involved in criminal activity and cannot serve as corroborating evidence (see People v Marmulstein, 109 AD2d 948, 949 [3d Dept 1985]).

In addition, the People point to defendant’s nervousness when he was arrested and when he was taken for DNA testing as corroborating evidence. This Court has held that consciousness of guilt evidence (e.g., an individual’s nervousness when confronted by the police) is considered very weak evidence and does not necessarily meet the corroboration requirement of CPL 60.22 (1) (see People v Moses, 63 NY2d 299, 309 [1984]; People v Reddy, 261 NY 479, 487-488 [1933]).

*197 Finally, the majority considers how the victim’s testimony indicating the number of perpetrators and the method of attack “harmonizes” with the accomplice’s details. Although the victim’s testimony bolsters the accomplice’s story, none of her details connect defendant with the crime. She was unable to identify any of the perpetrators after spending hours in the car with them. In any event, the fact that the victim’s testimony harmonizes with the accomplice’s does not connect the defendant with the crime, and is not corroborating evidence as contemplated by CPL 60.22 (1).

Contrary to the majority’s position, I believe that the principles set forth in People v Hudson ( 51 NY2d 233 [1980]) and its progeny are controlling here. It is well settled that “[t]he corroboration must be independent of, and may not draw its weight and probative value from, the accomplice’s testimony” (People v Steinberg, 79 NY2d 673, 683 [1992], citing People v Moses, 63 NY2d at 306 ; People v Hudson, 51 NY2d at 238 ).

The main cases the majority relies on, People v Besser ( 96 NY2d 136 [2001]) and People v Breland ( 83 NY2d 286 [1994]), are inapposite. In Besser , the indictment charged 10 defendants with one count of enterprise corruption based on 62 pattern criminal acts. Unlike here, in Besser , there was ample proof beyond the accomplices’ testimony, including testimony from at least two nonaccomplice witnesses and documentary evidence, which sufficiently corroborated the accomplices’ testimony.

In Breland , the defendant was charged with multiple murders and identified by many accomplices as well as independent witnesses. The majority cites an often quoted rule from Breland , i.e., “much less evidence and of a distinctly inferior quality is sufficient to meet the slim corroborative linkage to otherwise independently probative evidence from accomplices” (Breland, 83 NY2d at 294 ). However, this quote is incomplete as stated. The Court in Breland goes on to add the following: “In this case, the corroborative strands support overwhelming proof from the accomplices as to each element of all the counts beyond a reasonable doubt” (id. at 294 [citation omitted]).

There is no question that this was a particularly heinous crime. However, in such a case it is imperative to require the People to put forth the proper corroborating evidence. In People v Cona ( 49 NY2d 26, 37 [1979]), the Court stated, “[t]his is not a crippling requirement and serves to assure the reliability of evidence furnished by a witness who must be perceived as pos *198 sibly laboring under considerable inducements to favor the prosecution.” In the instant case, the accomplice not only wanted to curry favor with the prosecution for obvious reasons but may have been easily influenced by the police as well. This accomplice was in a psychiatric unit, schizophrenic, bipolar and hearing voices at the time of trial.

People v Hudson has been settled law for 30 years and has been cited with approval in more than 100 cases. It sets forth the rationale for CPL 60.22 (1) as follows:

“[T]he purpose of the statute is to protect the defendant against the risk of a motivated fabrication, to insist on proof other than that alone which originates from a possibly unreliable or self-interested accomplice (People v Daniels, 37 NY2d 624 ). It is for this reason that the so-called corroborative evidence must stand on its own. To permit the testimony of the accomplice himself to import meaning or significance into the independent proof would furnish no assurance that the independent proof was not itself subject to the very untrustworthiness against which the statute seeks to protect” CHudson, 51 NY2d at 238-239 ).

I disagree with the majority’s decision to overrule any portion of Hudson . Generally, cases are overruled when they no longer serve the underlying “ ‘ “nature and object of the law itself’ ’, reason and the power to advance justice” (People v Bing, 76 NY2d 331, 338 [1990], quoting von Moschzisker, Stare Decisis in Courts of Last Resort, 37 Harv L Rev 409, 414). No such purpose exists here. No party has argued that Hudson , or any aspect of it, should be overruled. Furthermore, neither Besser nor Breland , which as stated were relied upon by the majority, have anything to do with the major thrust of Hudson .

In conclusion, the case against defendant was not supported by independent corroborating evidence tending to connect him to the crime as required by CPL 60.22 (1). Accordingly, he was denied a fair trial. It is troubling to consider that a person could be convicted of such a crime with absolutely no scientific or physical evidence to connect him to the crime, no identification by the victim, and the weakest of purported corroborating evidence.

Accordingly, I dissent and would reverse the order of the Appellate Division.

*199 Chief Judge Lippman and Judges Ciparick, Graffeo, Read and Pigott concur with Judge Smith; Judge Jones dissents and votes to reverse in a separate opinion.

Order affirmed.

. The accomplice, Hilborn, received a sentence of seven years for his testimony, while the codefendants were sentenced to 25 years.

. The accomplice first stated that he used a condom. After the DNA evidence was discovered, he changed his story and said that he used a condom during part of the assault and then took it off.