People v. Barber

• Decision Date: 15 September 1983
• Citation: 96 A.D.2d 1112,467 N.Y.S.2d 705
• Parties: The PEOPLE of the State of New York, Respondent, v. Gerald BARBER, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 705

467 N.Y.S.2d 705

96 A.D.2d 1112

The PEOPLE of the State of New York, Respondent, v. Gerald BARBER, Appellant.

Supreme Court, Appellate Division Third Department.

Sept. 15, 1983.

Ariel Raab, Boca Raton, Fla., for appellant.

Michael Kavanagh, Ulster County Dist. Atty., Kingston (Marsha Solomon, Kingston, of counsel), for respondent.

Before MAHONEY, P.J., and SWEENEY, KANE, MAIN and CASEY, JJ.

MEMORANDUM DECISION.

Appeal from a judgment of the County Court of Ulster County, rendered December 23, 1981, upon a verdict convicting defendant of the crime of robbery in the first degree and two counts of the crime of robbery in the second degree.

Defendant was originally convicted of one count of robbery in the first degree and three counts of robbery in the second degree, emanating from an indictment which charged him and two companions with the robbery of the Snyder family at 9:00 A.M. on November 9, 1978 in Kingston, Ulster County. The robbers who committed these crimes were masked and they bound, blindfolded and gagged Mrs. Snyder and her daughter before stealing cash and a coin collection. Defendant's original conviction was reversed by this court on appeal (81 A.D.2d 943, 439 N.Y.S.2d 699). Defendant was retried and was again convicted of one count of robbery in the first degree, but only of two counts of robbery in the second degree.

On this appeal, defendant urges several errors for reversal of this conviction, among which are the failure of the trial court to properly instruct the jury on the corroboration required of accomplice testimony and the insufficiency of the corroborative evidence required for such accomplice testimony. In regard to the first contention, the trial court charged precisely what was charged in People v. Dixon, 231 N.Y. 111, 116, 131 N.E. 752; which has generally been held to be the proper standard for accomplice testimony (see, e.g., People v. Moses, 91 A.D.2d 239, 458 N.Y.S.2d 238, app. dsmd. 59 N.Y.2d 667, 463 N.Y.S.2d 436, 450 N.E.2d 242; People v. Ardito, 86 A.D.2d 144, 160, 449 N.Y.S.2d 202, affd. 58 N.Y.2d 842, 460 N.Y.S.2d 22, 446 N.E.2d 778) and was recently reaffirmed by the Court of Appeals in People v. Dory, 59 N.Y.2d 121, 463 N.Y.S.2d 753, 450 N.E.2d 673.

As to the sufficiency of the corroborative evidence, it appears from the record that one of the accomplices, Benjamin Molina, testified for the prosecution in exchange for his plea of guilty to one count of robbery in the first degree. Molina's testimony was substantially the same as that given in defendant's original trial, which this court held sufficient on defendant's prior appeal (81 A.D.2d 943, 439 N.Y.S.2d 699, supra ). Furthermore, as in the prior trial, defendant was identified by a cab driver named Tyler as having joined the other perpetrators of the crime as they commenced their flight from the Kingston area in the Tyler taxicab shortly after the commission of the robbery. Additionally, an accomplice witness named Landerway placed defendant in the vicinity of the robbery shortly before its commission and Mrs. Snyder testified that one of the masked robbers was "real tall", a fact substantiated by defendant's height of six feet, five inches. This corroborative testimony was sufficient to satisfy the statutory requirement of CPL 60.22 (subd. 1).

Defendant further...