*1 186], NE2d [933 788] NYS2d State York, of New Respondent, v Nathan Reome, J. Appellant.
Argued May 6, 2010; decided June *2 POINTS OF COUNSEL Syracuse Legal Society, (Philip Frank A. Aid Roths Hiscock counsel), appellant. erred child of for I. The courts lower finding accomplice did not tend corroboration as appellant connect commission was inde pendent, (People insufficient as a matter of law. v and was Glasper, Cunningham, People 970; 938; 48 NY2d 52 NY2d v People People Kress, Daniels, v 624; 452; v 37 NY2d 284 NY People People Moses, Hudson, 299; 233; 63 v 51 NY2d v NY2d People People Cross, Wasserman, 1020; v 25 v 46 AJD2d AD3d People Nitzberg, People Cona, 915; 26; 49 v 287 NY v NY2d 183.) denying appellant Nathan II. The lower court erred (People People Snare, 674; v Mah Reome v 216 AD2d severance. Payne, People 22; Bruton v boubian, 174; v 35 NY2d 74 NY2d 61.) People Cruz, III. States, 123; United US v 66 NY2d 391 sundry appellant deprived of a fair trial. lower errors court’s (Pointer People Hudy, Texas, 40; Davis 400; 380 US v 73 NY2d v Mississippi, 410 US Alaska, 308; 284; v v 415 US Chambers People Washington Gissendanner, Texas, 48 14; 388 v NY2d v US People Crimmins, Fensterer, 15; 543; v 474 US v 36 Delaware 210.) Hollins, v 261 F3d 230; NY2d Pavel (James Attorney, Syracuse Fitzpatrick, P. William J. District 190 counsel), respondent. jury
Maxwell of
presented
for
I. The
legally
corroborating
sufficient
accomplice. (People
People
Allen,
v
9
1013;
NY3d
Contes,
v
People
People
620;
60 NY2d
Steinberg,
Besser,
v
96
136;
NY2d
v
People Glasper,
People
673;
79 NY2d
v
52
970;
Rumble,
NY2d
v
People
45
People
879;
Hudson,
NY2d
v
233;
51 NY2d
v Cun
ningham,
People
People
938;
48 NY2d
v
83
286;
NY2d
966.)
Pierce,
properly
v
303 AD2d
II. The trial court
denied de
separate
(People
fendant’s motion for a
Buccina,
trial.
v
62 AD3d
People
1252;
People
Mahboubian,
v
Allaway,
74
174;
NY2d
v
People
617,
AD2d
1009;
NY2d
Suber,
v
Defendant was convicted of in a with three alleged accomplices, other men. One of his Hilborn, Andrew was only identify the witness to him. The issue is whether Hilborn’s testimony requires. was corroborated as CPL 60.22 We hold that it was.
The main at witnesses trial were Hilborn and the victim. rape by Both identify described a four men. The victim did not participated of the four, but Hilborn said he in the crime MacDonald, with Scott Santino Buccina and defendant. Mac- rape by Donald, Buccina and Hilborn were connected to the evidence, DNA but defendant was not. gave very
Hilborn and the victim detailed and similar ac- According counts. both, to the victim was intoxicated and lost Syracuse night on the streets in the middle of the when she got agreed help into a car with four men who her. Hilborn driving, testified that MacDonald was Buccina in the front passenger seat, and the victim sat in back with Hilborn on her identifying right; victim, without her the left and defendant on arrangement. seating men, same described the following According victim, the events and the to both Hilborn phone place: from one of a cell The victim borrowed then took might unsuccessfully call someone who and the men help tried slept, asleep. way. Later, she fell While she her find her stopped spot. men in an isolated town, drove out of and car pants her car, her and bound out of the removed took victim tape, up, they tape. removed the duct duct After she woke with (MacDonald telling) in Hilborn’s car and the driver of the unless submitted sex. threatened her with harm she got in continued: The victim back Both witnesses’ accounts raped, driver, the had order, man who the car and was right, passenger her from the front seat and sat on her the man (MacDonald, neighbor defendant, Buccina and Hilborn left-hand testimony). One of men then returned in Hilborn’s Syracuse, clothing rings, and back and the car drove victim’s everyone During same seats the drive as before. (defendant, according neighbor right-hand back, victim’s Hilborn) identify- appeared license to enter took her driver’s and during ing phone. back, information into his cell Also the drive they occupants of the car had a about conversation whether stop. Finally, rapists passed Square had Central rest Syracuse, dropped near a hotel. their victim off testimony victim, In addition to the of Hilborn documentary People produced We evidence. *4 opinion parts it most describe later in this the of we think will relevant. jury acquitted raping personally victim,
The defendant accomplice rape as an but convicted him on three counts of Appellate conspiracy. affirmed, Division one count of (64 [2009]). dissenting Appellate An two Justices AD3d (13 granted permission appeal to Court Justice this Division [2009]), now NY3d 751 and we affirm.
II
any
may
says: “A
not be
CPL 60.22
defendant
convicted
by
accomplice unsupported
upon
testimony
of an
offense
tending
the defendant with
evidence
to connect
corroborative
commission of such offense.”
by
required
this
need
statute
The “corroborative evidence”
powerful
need not
“The
evidence
not be
in itself.
corroborative
show the
crime;
commission of the
it need not
de-
show that
fendant was connected with the
commission
the crime. It is
enough if it tends to
connect
defendant with the commis-
way may reasonably satisfy
sion of
the crime
such a
as
jury
accomplice
telling
(People
that the
Dixon,
is
the truth”
omitted]).
[1921] [citations
“[T]he
Here, clear, as our above makes bulk testimony by Hilborn’s was corroborated the victim. But emphasizes, did not, victim as defendant corroborate one criti- identity—and detail, cal therefore, defendant’s defendant argues, testimony “tending her was not evidence connect [the] defendant with the showing commission offense.” Evidence general, accomplice that, in is not told truth enough, argues in defendant’s he view; there must be evi- independently pointing dence to him as the offender. argument support Defendant’s finds Hudson, statutory where we said: “To meet the mandate the corrobora- truly independent; tive evidence must be reliance not placed extent be on of the for do so 238). rely bootstrap” be to on a would NY2d at Hudson require only “indepen- would that we consider evidence that is connecting dent” in the sense that it could be viewed as defend- accomplice testimony ant to the even if crime did not exist. explain, supported As we will the rule stated in is Hudson not cases, our Nevertheless, here. we do follow it the independent Hudson is a distinction makes useful one: Evidence that is accomplice’s testimony generally is entitled weight perform to more than that is not. Thus we will requires the exercise that Hudson and consider what evidence *5 accomplice’s testimony would, exist, if the con- did not tend to nect then defendant this offense. We will consider importance independent in evidence, of other the Hudson sense. testimony,
Disregarding in the record the evidence Hilborn’s might, arguably, the crime defendant with tend connect that may as follows:
be summarized - rapists, known Mac- friend one of the Defendant was a had, that defendant father-in-law testified Donald. MacDonald’s at his home. times, or MacDonald four five visited - rape, shortly Shortly defendant was after the before and rapists, frequent Buccina’s Buccina. with another of contact phone defendant defendant or that he called cell records showed rape, day on the before him a total of 31 times called day day rape and the after. - during the time when the calls, Of none occurred those rapists together. testimony placed Dozens of the four victim’s appear phone cell the hours im- on Buccina’s records calls mediately following rape, preceding but none those and from or to defendant. calls was
- physical though evidence, a weak, of resem- There is some rapists. Defendant and one of the blance between defendant alleged dirty offend- hair, none the other three had blond and given shortly by the af- had A statement victim ers that feature. brought jury, rape, said that one of ter the out before rapists dirty statement, In a later victim had blond hair. saying given description, her she had it because she retracted pressured by up identifying police details. felt to come with during cryptic hand, On the the victim made a remark appearance suggest of de- her which that Buccina, like codefendants, fendant his MacDonald and sitting people “I’m a room with three that her attackers: you they can tell sat in the car.” - strong reaction when first Defendant had a emotional police by this An officer went to de- contacted about case. rape talk a said he about fendant’s home and wanted investigation. According officer, to the defendant “became shaky up against extremely sweaty, pale, had lean a rail- . . . ing.” may point independent de sum, toward rapists it exist—but must be of the victim’s does
fendant as one obviously unimposing. falls far is It short said that the evidence necessary guilt. prove defendant’s Whether be of what would applied demanding to corrobo much standard it meets the less question. find is We under CPL 60.22 a close rative evidence unnecessary question, conclude because we it answer
194 though independent that other evidence, corroborative not in disregarded. sense, Hudson not should be (1), requiring The text of CPL 60.22 “corroborative evidence tending to connect the defendant with the commission of such require offense,” read, need not be in as it was Hudson, depends degree any accomplice’s all corroboration that on the ignored. testimony be The words “without reference to the ac- complice’s testimony” are not in the statute. There can be cor- accomplice’s testimony, that, read roborative makes it more likely that the defendant offense, committed the and thus tends to connect him to it.
A of our decisions, number both Hudson, before and after are early inconsistent with the Hudson language rule. As as said, we in repeatedly we have echoed since then: in “Matters seeming light of themselves or indifference trifles of the time place persons meeting may and complice’s so harmonize with the ac tendency
narrative as have a to furnish the neces sary (Dixon, connection between defendant and the crime” 231 [emphasis e.g., People added]; also, NY at 116-117 Daniels, see [1975]; 294; 83 NY2d at [2001]). Besser, NY2d 136, To consider whether accom plice testimony and other evidence “harmonize” is not to disre gard accomplice’s testimony; opposite. it is closer to And may we held have that some evidence be considered corrobora though simply supports accomplice testimony, tive even it independently not does incriminate the Thus, defendant. in Breland, we relied forensic on evidence as to the location aof body gunshot “corresponded wounds found it that by supplied accomplice with the 293; details” an NY2d at [1986]). see also Bretti, NY2d 929 many short, of our are cases inconsistent their language, holdings, and some in their with the Hudson rule permit that CPL 60.22 does consideration of corrobora depends accomplice tive evidence that testimony. “to extent” on aspect We clear this now make Hudson is harmonizing overruled. Courts consider evidence as well as independent giving weight evidence, while due difference independent between the two. Some evidence that is not will obviously If be an that the worthless: testifies de Park, fendant next a tree in committed a crime Central prosecution proving cannot “corroborate” this cases, one, existence nizing the tree. But other as in this harmo may provide crediting a substantial basis for ac complice testimony. though that, not inde
Indeed, examine evidence when we testimony, find pendent it, with we does harmonize of Hilborn’s ample. account, The victim’s detailed to be the corroboration rapists, give the three other and the DNA identifications of strong description events Hilborn’s reason to believe that very largely possible, course, told true. It is that Hilborn every detail, and lied about defendant’s the truth about *7 jury involvement; record, it for the to decide but, on this was phone weight give possibility. records, too, that The cell what way: testimony insignificant in a not harmonize with Hilborn’s defendant, that Buccina and Mac Hilborn testified he was with they period of time met the for an extended before Donald phone that Buccina cell records show victim—and Buccina’s placed often, other no defendant, otherwise called each who car. If each for hours before the victim entered the calls to lying one of the Hilborn was when he said that defendant was lucky phone men in he was the cell records matched car, testimony. his People produced corroborative evidence
We conclude that the commission the of- sufficient to connect defendant argument improperly fense. that he denied ac- Defendant’s unpreserved, and his cess to medical records is Hilborn’s remaining arguments lack merit.
Accordingly, Appellate be af- the order of the Division should firmed. (dissenting). question Defendant raises whether Jones, J. (1).
his of CPL 60.22 conviction was obtained violation accomplice’s presented Because the to corroborate the evidence (1), respect- testimony I did meet the of CPL 60.22 strictures fully dissent. accomplice’s requires of an
The rule that the corroboration safeguard recognizes testimony questionable reli- is a accomplice. requires indepen- ability testimony It of an person support that he dent of a who admits yet along points participated confederates, in a crime with his Accordingly, personal finger at his benefit.1 another for own (1) tending requires to con- CPL 60.22 “corroborative of such offense.” nect the defendant with commission dissenting Appellate agree Division the two Justices of Hilborn, years for his accomplice, 1. a sentence of seven The received years. testimony, sentenced to while the codefendants were [2009]) corroborating AD3d that the of- by People identify fered in this case fails to defendant as a perpetrator. majority laundry purportedly cites a list of corroborative my up, view,
evidence. In link the evidence offered which fails to satisfy defendant crime, to the does not CPL 60.22 or the relevant case law. People argue accomplice
First, the that because the was “cor- (of rect” three out of four his identifications himself and codefendants), two which were confirmed evidence, DNA he participant was “correct” when he identified defendant as a though linking even no DNA evidence him to the crime was short, recovered from defendant. seek explain corroborating lack DNA evidence from defend- by relying supplied ant on the who states he defend- initially condom, ant awith lied about certain details of his interesting logic, Thus, involvement.2 in an twist corroborating used the lack of DNA evidence defendant, from *8 normally exculpate which would crime, a defendant a sex inculpate defendant here. argue People friendship
Further, the there was a close be- Buccina, tween defendant and codefendant and evidence of telephone calls between them before and after the crime. any proof Without calls, the substance of these no reasonable concerning conclusion can be drawn their corroborative value. identify perpetrator These calls do not tend to defendant as a Further, the offense. an a association between defendant and necessarily the codefendants is not sufficient establish that activity defendant was involved in criminal and cannot serve as (see corroborating People Marmulstein, evidence v 109 AD2d 1985]). Dept [3d 948, 949 point People
In addition, the
to defendant’s nervousness when
testing
he was arrested and when he
DNA
was taken for
as cor
roborating evidence. This Court has held that
consciousness
guilt
(e.g.,
an individual’s nervousness when confronted
police)
very
is considered
weak evidence and does not
necessarily
requirement
meet the corroboration
of CPL 60.22
(1) (seePeople
People Reddy,
Moses,
[1984];
v
v
63 NY2d
[1933]).
during then of the assault and took it off. testimony Finally, majority the victim’s considers how indicating perpetrators of attack and method number of Although accomplice’s details. “harmonizes” with story, accomplice’s testimony of her none bolsters the victim’s the crime. She was unable details connect defendant with spending identify any perpetrators in the car after hours event, In the fact that victim’s them. with accomplice’s defend- not connect the does harmonizes with corroborating as ant with the and is (1). contemplated by CPL 60.22 position,
Contrary majority’s believe [1980]) (51 principles v NY2d 233 Hudson set forth “[t]he progeny controlling It here. is well settled and its are independent of, its and not draw must be corroboration accomplice’s testimony” weight probative from, the and value Steinberg, citing People (People [1992], NY2d 238). People Hudson, at Moses, 306; 63 NY2d at (96 majority People v on, Besser The main cases the relies [2001]) [1994]), v Breland NY2d 286 inapposite. charged 10 Besser, are In indictment defendants enterprise pattern corruption on 62 with one count of based ample proof here, be- Besser, criminal acts. Unlike there was yond testimony, including testimony accomplices’ at from nonaccomplice documentary evidence, least two witnesses testimony. sufficiently accomplices’ which corroborated the charged multiple Breland, murders defendant was independent by many accomplices as as well wit- and identified quoted majority rule from nesses. The cites an often distinctly quality is i.e., “much and of a inferior less evidence *9 linkage otherwise sufficient to meet the slim corroborative to (Breland, accomplices” independently probative from evidence 294). incomplete quote as stated. However, 83 at this is NY2d following: goes add the “In this The Court Breland on to overwhelming support proof case, the corroborative strands accomplices the counts be- from the as to each element all (id. omitted]). yond [citation at a reasonable doubt” particularly question heinous no a There is this was imperative require the a is However, crime. People such case it corroborating put proper In the evidence. forth [1979]), “[t]his stated, not 26, Court is Cona reliability crippling requirement to assure the a and serves by perceived pos- be as furnished a witness must evidence who sibly laboring pros- under considerable inducements to favor accomplice only case, ecution.” curry the instant wanted to prosecution favor with the for obvious but reasons easily by police have been influenced as well. This accom- plice psychiatric schizophrenic, bipolar was in a unit, and hear- ing voices at the time of trial. years v Hudson has been settled for law and has approval
been cited with in more than 100 It cases. sets forth the rationale for CPL 60.22 as follows: purpose protect “[T]he of the statute is to de- against fendant the risk of a fabrication, motivated proof to insist on other than that alone which originates possibly a from unreliable or self- accomplice (People interested v Daniels, 37 NY2d 624). It is for this reason that the so-called corrobo- permit rative evidence must stand on its own. To import himself to meaning significance independent proof or into the independent furnish would no assurance that proof subject very was not itself untrustwor- against protect” thiness which the statute seeks to 238-239). CHudson, 51 NY2d at disagree majority’s any portion with the decision to overrule Generally, they longer of Hudson. cases are overruled when no “ ‘ underlying object serve the “nature and ’, the law itself’ power justice” (People Bing, reason and the to advance quoting [1990], Moschzisker, von Stare Decisis 414). Resort, in Courts Last L 37 Harv Rev No such purpose party argued exists here. Hudson, No has or aspect of it, Furthermore, should be overruled. neither Besser upon by majority, nor which as stated were relied anything major have to do with the thrust of Hudson. against supported In conclusion, the case was not defendant by independent corroborating tending him connect (1). required by Accordingly, to the crime as CPL 60.22 he troubling person denied a fair It a trial. is to consider that could absolutely be convicted of such a crime with no or scientific physical connect him to the no identification corroborating purported victim, and the weakest of evi- dence.
Accordingly, Ap- I dissent and would reverse order of *10 pellate Division. Judges Ciparick, Judge Lippman and Graffeo, Read
Chief Judge Judge dissents Pigott Jones concur Smith; opinion. separate in a to reverse votes affirmed.
Order