People v. Reome

Hurlbutt, J.P., and Martoche, J.

(dissenting). We respectfully dissent. Pursuant to CPL 60.22 (1), “[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.” As noted in People v Delgado (50 AD3d 915, 917 [2008], quoting People v Steinberg, 79 NY2d 673, 683 [1992]), “ ‘[t]he corroboration must be independent of, and may not draw its weight and probative value from, the accomplice’s testimony.’ ” Further, “[although the corroborative evidence need not establish every element of the crimes charged, it must tend to connect the defendant to the offenses” (id.).

In our view, the People failed to offer any independent evidence sufficient to corroborate the testimony of the accomplice identifying defendant as one of the perpetrators of the rape of the victim, and thus County Court should have granted defendant’s motion for a trial order of dismissal on that ground.

At trial, the victim neither identified nor described the four attackers who raped her. Although there was DNA evidence implicating three of the perpetrators, including the accomplice who entered a guilty plea and testified at trial, there was no such evidence with respect to defendant. Consequently, corroboration of the accomplice’s testimony identifying defendant as one of the perpetrators was mandated by CPL 60.22 (1). We cannot agree with the conclusion of the plurality that the neces*1205sary corroboration was furnished by the testimony of the victim. The consistency between the testimony of the victim and the accomplice with respect to the details of the crimes “tends to support the accomplice [’s] credibility, but it does not reasonably tend to connect the defendant with the crime[s]” (People v Nieto, 97 AD2d 774, 776 [1983]; see People v Marmulstein, 109 AD2d 948, 949 [1985]; see generally People v Glasper, 52 NY2d 970, 971 [1981]; People v Hudson, 51 NY2d 233, 238-239 [1980]).

The People’s reliance on defendant’s friendship with two of the codefendants and defendant’s telephone conversations with them before and after the occurrence of the crimes as corroboration of the accomplice’s testimony is misplaced. “Defendant’s association with the [codefendants], in and of itself, does not independently establish any criminal activity on his part” (Marmulstein, 109 AD2d at 949). The only other arguably corroborative evidence relied on by the People is testimony that, when approached by the police, defendant was “extremely nervous,” and that, when being arrested and having his buccal swab taken for DNA testing, he vomited several times. We agree with defendant that such purported evidence of consciousness of guilt “was so inherently weak that it did not satisfy the corroboration requirement of CPL 60.22” (People v Moses, 63 NY2d 299, 309 [1984]; see People v Reddy, 261 NY 479, 487-488 [1933]).

Finally, we agree with the implicit conclusion of the plurality that there is no corroboration in the trial testimony of the victim relied on by the concurrence. We therefore would reverse the judgment, grant defendant’s motion for a trial order of dismissal, dismiss the indictment, and remit the matter to County Court for proceedings pursuant to CPL 470.45. Present— Hurlbutt, J.P, Martoche, Smith, Peradotto and Gorski, JJ.