People v. Conlon

Appeal by defendant from a judgment of the County Court, Westchester County, rendered December 16, 1977, convicting him of burglary in the second degree, grand larceny in the second degree and criminal possession of stolen property in the first degree, upon a jury verdict, and imposing sentence. Judgment reversed, on the law, and new trial ordered. The major issue on this appeal is whether the trial court erred in refusing to charge that one William Apy was, as a matter of law, an accomplice of the defendant. The evidence adduced at trial showed that on the evening of May 8, 1976, Lori Hemings, Robert Apy and the defendant drove to a house in the Hamlet of Vista. While Hemings waited in the car, Apy and the defendant broke into the house and removed jewelry and various pieces of silver. Later that night, the trio drove to the home of William Apy, Robert’s brother, where they inspected the stolen items in William’s presence. Two days later, the defendant, Hemings and Robert Apy went to a store called Raphael’s of London for the purpose of selling the silver pieces. After the defendant informed the proprietor that the silver was from his grandfather’s estate, the two agreed upon a sale price of $2,500 and the defendant was given a check for that amount. Later that day, the defendant’s mother informed him that Mr. Raphael had called to confirm whether the silver was actually from his grandfather’s estate. She told Raphael that she would get back to him after she spoke with the defendant. The defendant informed his mother that Robert Apy’s parents had given the silver to Robert, who did not want Raphael to know that it belonged to him. In a telephone conversation between William Apy, posing as Robert’s father, and the defendant’s mother, William verified the story that the silver *824belonged to Robert. William also called Mr. Raphael, this time posing as the defendant’s father, and confirmed what the defendant had told him regarding the source of the silver. The following morning the defendant indorsed the check and gave it to William Apy, who attempted to cash it at his own bank. The bank refused payment because William had insufficient funds in his account. Eventually, the defendant and Hemings found a way to cash the check. Upon these facts we find that the trial court erred in refusing to charge, as a matter of law, that William Apy was an accomplice. The term "accomplice” is statutorily defined, inter alia, as any individual who "may reasonably be considered to have participated in * * * An offense based upon the same or some of the same facts or conduct which constitute the offense charged” (CPL 60.22, subd 2, par [b]). The intent of paragraph (b) is to include persons " 'who are in some way criminally implicated in, and possibly subject to, prosecution for the general conduct or factual transaction on trial’ ” (People v Cona, 60 AD2d 318, 324 [emphasis in original]). The statute broadens the definition of an accomplice "in order to provide a more equitable, operable and consistent standard for the courts in determining when the requirement of corroboration is applicable” (People v Basch, 36 NY2d 154, 157; People v Cona, supra; People v Werner, 55 AD2d 317). Applying this rationale to William Apy, it is evident that he actively participated in an endeavor to hinder discovery of the burglary through his calls to the defendant’s mother and Raphael. Furthermore, he attempted to cash the check that the defendant had received in return for the stolen goods. Thus, there was an evidentiary showing that William was implicated in the criminal transaction sufficient to warrant the instructions sought. Clearly, William was subject to possible prosecution for his conduct. We have considered the defendant’s other contentions and find them to be without merit. With regard to the issue of double jeopardy expounded upon by our learned dissenting brother, we would note, as indicated in the dissent, that the Trial Judge, in referring to the conduct of the prosecutor, found that there was no evidence whatsoever of "any intentional or bad faith action on his part.” Mollen, P. J., Hopkins, Hawkins and O’Connor, JJ., concur.