People v. Moses

OPINION OF THE COURT

Sullivan, J.

The People appeal from Trial Term’s order setting aside a verdict of guilt and dismissing the indictment. The issue is whether sufficient independent evidence was presented to corroborate the accomplice testimony upon which the verdict was based. Although the issue is close we find that the consciousness of guilt evinced by defendant when he presented a false alibi, recorded on video tape by the police during the investigation of the homicide, constitutes evidence “tending to connect the defendant with the commission of [the] offense” (CPL 60.22, subd 1), so as to corroborate the testimony of Lynette Baker, the accomplice. Absent the false alibi, however, the record is barren of any corroborative evidence which would support the verdict.

*240The trial testimony indicated that the victim, a serviceman home on Christmas holiday, had been robbed and brutally murdered in the early morning hours of December 21, 1978. He was found with his hands tied behind his back, with numerous stab wounds, and with burns over most of his body. Ten of the travelers checks he had purchased at Fort Leonard Wood, Missouri, were forged and cashed during the week following his death. Only Baker’s testimony implicated defendant in the crime.

Apparently the victim, who had flown home earlier that evening, stopped at a bar just a few blocks from his mother’s apartment, where he met some of those who were, within a matter of hours, to rob and murder him. Baker testified that eventually she, the victim, defendant, Cornell Alston and Jerome McEachin all went to a vacant apartment in a nearby building where they continued drinking. Baker testified further that defendant initiated the robbery and that Alston, aided by defendant, killed the victim because he knew their names. McEachin was not indicted, and Baker testified in exchange for a promise of leniency. Alston and defendant were tried jointly.

The jury convicted both defendant and Alston of murder in the second degree and robbery in the third degree. Trial Term set aside the verdict and dismissed the indictment as to defendant for lack of corroboration of the accomplice’s testimony. Additionally the court, expressing “grave concern” about Baker’s credibility and citing People v Kidd (76 AD2d 665, application for lv to app dsmd 51 NY2d 882), also invoked the interests of justice as a further ground for dismissal. We do not believe that the evidence was so weak as to justify a dismissal on the latter ground, nor does defendant even seriously urge this point in support of the dismissal. Thus, the only issue is whether the mandate of CPL 60.22 (subd 1) requiring corroborative evidence of an accomplice’s testimony was satisfied.

The People cite several portions of the record which they claim corroborate Baker’s testimony. Margaret Jennings, a tenant across the hall from the apartment where the murder occurred, testified that sometime around 11:00 p.m. . she had seen defendant leaving the same apartment. Yet, the record contains unchallenged evidence that the victim *241was alive and well at approximately 3:00 A.m. At that time, according to Baker, he was conversing on the stoop of the building in which he was killed with her, defendant, Alston and McEachin. Thus, as the People concede, at least three and "one-half hours elapsed from the time defendant was observed outside the apartment and the time Baker said the victim left the stoop with Alston to go upstairs. Such a protracted interval of time renders innocuous defendant’s earlier presence outside the apartment, since the record is barren of any evidence that at 11:00 p.m. the victim had even met Baker and her cohort. Thus, at that time, he could not have been targeted by them for robbery.

Moreover, the vacant apartment, according to Jennings, was often used by strangers. Indeed, Baker’s own testimony established that defendant had used the apartment on occasion. In such circumstances, his use of the apartment on a rainy, cold and damp night at least three and one-half hours before the murder does not tend to connect him to the crime. Mere presence in a building alone will not suffice as corroboration unless there is no hypothesis for that presence other than criminal purpose. (See People v Hudson, 51 NY2d 233, 234.) Not without significance is Jennings’ failure to see defendant later that night when she observed a group, including Alston, who was holding the victim’s duffel bag, standing in the hallway outside the vacant apartment.

On oral argument the People urged that Jennings saw defendant lock the door with a key when he left the apartment at 11:00 p.m. Notwithstanding whatever probative value such evidence might have, it does not exist in the record. Jennings merely answered “yes” when asked on cross-examination if she had testified at a pretrial hearing that she had seen defendant coming out of the apartment and locking the door with a key. This testimony was elicited by defense counsel to impeach the witness by showing a prior contradictory statement, and does “not constitute * * * ‘evidence in chief’ of the facts stated.” (Matter of Roge v Valentine, 280 NY 268, 276.) Indeed, Jennings clearly equivocated in answering counsel’s previous question as to whether defendant had locked the door with a key. Her answer was, “Well, it seems as though, you *242know, like if you turn around to close the door, door should lock.”

Nor does defendant’s statement to the police that he went to Alexander’s Department Store in The Bronx the day after the murder corroborate Baker’s testimony that he participated in the crime, since Baker testified that Alston took the travelers checks from defendant after the murder and purchased a snorkel jacket and turtle neck sweater at Alexander’s with some' of them. (Four checks bearing forged signatures were cashed at a branch of Alexander’s.) Consistent with Baker’s testimony that Alston took the checks, Alston was identified by another witness as having cashed three more of them at a grocery store a few days after Christmas.

In People v Dixon (231 NY 111,116) the Court of Appeals addressed itself to the requirement that accomplice testimony be corroborated, and noted: “The ‘other evidence’ must be such ‘as tends to connect defendant with the commission of the crime.’ 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. The corroboration is not restricted to any particular point. Its connection with defendant’s own statements and denials should be considered.”

Applying this standard we find that the only evidence corroborating Baker’s testimony was defendant’s offer of a false alibi. In his video taped statement he denied being present in the apartment, or even in Manhattan, on the night of the homicide. Yet, Jennings testified that at about 11:00 p.m. she saw him coming out of the apartment. While, as already noted, his presence outside the apartment several hours before the murder is not, as a matter of law, corroborative of Baker’s testimony, his presence at the apartment that night directly contradicts his statement that he was not in Manhattan, and betrays a “consciousness of guilt”. Courts have consistently held that false stories evincing a consciousness of guilt constitute evidence corroborative of accomplice testimony. (See People v *243Ruberto, 10 NY2d 428, 430; People v Leyra, 1 NY2d 199, 208.)

In People v Deitsch (237 NY 300) the defendant was charged with the rape of a minor. A third party observed him lingering at her house a few minutes before the victim said he forced his way into the house and assaulted her. The defendant offered an alibi at trial. The court found that the defendant’s attempt to establish a false alibi justified the inference that his presence on the street at the time was a guilty presence, and concluded that the victim’s story was sufficiently corroborated.

In Deitsch (supra) the court recounted the facts of People v Gorski (236 NY 673.) In Gorski a defendant was implicated in a murder by his accomplices. Gorski, like Deitsch, denied presence at the scene, but again a third party saw the defendant near the crime scene. The court found that Gorski’s false denial of his presence in the neighborhood sufficiently corroborated his accomplices’ testimony.

That defendant’s denial that he was present in Manhattan on the night of the murder is susceptible of more than one interpretation does not render it legally insufficient. The independent corroborative evidence need not “exclude to a moral certainty every hypothesis but that of wrongdoing.” (People v Daniels, 37 NY2d 624, 630, citing People v Kohut, 30 NY2d 183, 193-194.) Thus, the issue of the inference to be drawn was a matter for the jury, not the court.

Defendant’s attempt to remove himself entirely from the Borough of Manhattan on the evening of the murder was thwarted by the testimony of Jennings, a disinterested witness, who placed him outside the apartment where the murder occurred. This deception indicated a consciousness of guilt from which a jury could find sufficient corroboration of Baker’s testimony.

Accordingly, the order, Supreme Court, New York County (Dontzin, J.), entered November 28, 1980, which, inter alia, set aside the verdict convicting defendant of murder in the second degree and robbery in the third degree, should be reversed, on the law, the verdict reinstated, and the matter remanded for sentence.