161 A.D.2d 784 | N.Y. App. Div. | 1990
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Pincus, J.), rendered January 22, 1986, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant was charged with the intentional murder of April Ernst, who disappeared sometime between September 7 and September 8, 1980. Her body has never been found. The only direct evidence implicating the defendant in her murder
CPL 60.50 provides that "[a] person may not be convicted of any offense solely upon evidence of a confession or admission made by him without additional proof that the offense charged has been committed”. However, this additional proof may consist of circumstantial evidence that a crime occurred and it need not directly connect the defendant to the crime. "Although the body of the victim is never found and there is no direct evidence, other than the confession, that the defendant caused the victim’s death, a jury question is presented by circumstantial evidence calculated to suggest that the victim is dead and implicating defendant as the criminal agency, the key to which is furnished by the confession or admission” (People v Lipsky, 57 NY2d 560, 563, rearg denied 58 NY2d 824). The additional evidence of the crime, together with the defendant’s statements, must be sufficient to establish the defendant’s guilt beyond a reasonable doubt (People v Lipsky, supra).
We find that the People presented sufficient circumstantial proof that the offense charged in fact occurred to satisfy the requirements of CPL 60.50. Ernst was 19 years old when she disappeared in September 1980, and five of her close relatives testified that they had not heard from her since then. According to her mother, Ernst lived with her until she finished school at age 18. Although their arguments over Ernst’s drug use caused her to leave home, the mother testified that Ernst thereafter always lived with close relatives and remained in contact with her. Ernst had been living with a paternal aunt at the time of her disappearance and her clothing and jewelry, including a diamond necklace she received on her sixteenth birthday, were left behind. Ernst’s older sister testified that
Viewing the evidence in the light most favorable to the People (People v Contes, 60 NY2d 620), we find that it was legally sufficient to establish the defendant’s guilt. Contrary to the defendant’s contention, we do not find that the testimony of Gerard Curro was incredible as a matter of law. Resolution of issues of credibility, as well as the weight to be accorded the evidence presented, are primarily questions to be determined by the jury which saw and heard the witnesses (see, People v Gaimari, 176 NY 84, 94). Its determination should be accorded great weight on appeal and should not be disturbed unless clearly unsupported by the record (see, People v Garafolo, 44 AD2d 86, 88; see also, People v Robinson, 147 AD2d 596). Upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the evidence (CPL 470.15 [5]).
The defendant contends that he was denied due process because of a three-year delay in the commencement of this criminal action. Although Gerard Curro informed the police of the defendant’s incriminating statements in September 1981, the defendant was not indicted until December 1984. We find that the People established good cause for the delay in that the investigation was continuing in order to pursue other leads and to obtain corroboration of the statement that Ernst had been murdered (see, People v Singer, 44 NY2d 241; People v Papa, 143 AD2d 1058).
The defendant further contends that the court, in effect, impermissibly amended the indictment by charging the jurors
We find that the defendant’s remaining contentions are either unpreserved for appellate review or without merit. Lawrence, J. P., Kunzeman, Kooper and Harwood, JJ., concur.