The People of the State of New York, Respondent, v Emanuel P. Medeiros, Appellant.
Appellate Division of the Supreme Court of New York, Third Department
[983 NYS2d 329]
Peters, P.J. Appeal from a judgment of the County Court of Otsego County (Lambert, J.), rendered October 29, 2012, upon a verdict convicting defendant of the crimes of criminal possession of a weapon in the third degree, criminal sale of a firearm in the third degree and attempted intimidating a victim
Defendant was charged with criminal possession of a weapon in the third degree, criminal sale of a firearm in the third degree and intimidating a victim or witness in the second degree arising out of his sale of a .22 caliber handgun to Dustin Lewandowski and subsequent threats against Lewandowski for providing a statement to police identifying him as the seller. Following a jury trial at which Lewandowski testified as the principal witness for the People, defendant was convicted of attempted intimidating a victim or witness in the second degree, as a lesser included offense, as well as the remaining counts of the indictment. County Court sentenced him to a term of imprisonment, and this appeal ensued.
Defendant‘s contention that he was deprived of his right to testify before the grand jury is without merit. Defense counsel was given notice on a Thursday that the People intended to present matters charged in pending felony complaints to the grand jury on the following Tuesday. Defense counsel responded the next day stating that she could not advise as to whether defendant wished to testify until she was informed whether the grand jury would hear the “weapon charge or the witness charge or both.” The People notified defense counsel the next business day (the day prior to the presentment) that all pending charges would be presented. No response was forthcoming. Under these circumstances, we find that defendant was accorded a reasonable time to exercise his right to appear and testify before the grand jury, but failed to notify the People in writing of his intention to do so (see
We agree with defendant that County Court erred in failing to charge the jury that Lewandowski was an accomplice as a matter of law with respect to the weapon possession and sale charges. “A defendant may not be convicted of any offense upon the testimony of an accomplice unsupported by corroborative evidence tending to connect the defendant with the commission of such offense” (
Here, the evidence established that Lewandowski did not have a license to possess the handgun he bought from defendant. Thus, although Lewandowski could not be subject to prosecution for criminal sale of a firearm, he was potentially subject to prosecution for—and was, in fact, charged with—criminal possession of a weapon in the fourth degree since he unlawfully possessed the weapon as soon as he made the purchase (see
Defendant also claims that his convictions on the weapon possession and sale charges were not supported by legally sufficient evidence corroborating the accomplice testimony. We disagree. “The corroborative evidence need not show the commission of the crime; it need not show that defendant was connected with the commission of the crime. It is enough if it tends to connect the defendant with the commission of the crime in such a way as may reasonably satisfy the jury that the accomplice is telling the truth” (People v Reome, 15 NY3d 188, 191-192 [2010] [internal quotation marks and citations omitted]; see People v Breland, 83 NY2d 286, 293 [1994]). “Corroborative proof is not rendered incompetent merely because an innocent interpretation is possible because the corroboration ‘need not, as must circumstantial evidence, lead exclusively to the inference of the defendant‘s guilt‘” (People v McAndris, 300 AD2d 1, 2 [2002], lv denied 99 NY2d 630 [2003], quoting People v Morhouse, 21 NY2d 66, 74 [1967]).
Here, although the proof regarding defendant‘s possession and sale of the firearm came solely from the testimony of Lewandowski, the People presented independent evidence establishing that, shortly after defendant was arrested on those charges, police responded to a report of an altercation between defendant and Lewandowski concerning a firearm. Upon responding to the incident, the police officer testified that Lewandowski appeared scared, was “shaking” and refused to speak to the officer until defendant left the premises. Mindful of the “minimal requirements” of
Lahtinen, Rose and Egan Jr., JJ., concur. Ordered that the judgment is modified, on the law, by reversing defendant‘s convictions of criminal possession of a weapon in the third degree and criminal sale of a firearm in the third degree under counts 1 and 2 of the indictment and vacating the sentences imposed thereon; matter remitted to the County Court of Otsego County for a new trial on said counts; and, as so modified, affirmed.