People v. Beaudet

• Citation: 298 N.E.2d 647,345 N.Y.S.2d 495,32 N.Y.2d 371
• Parties: , 298 N.E.2d 647 The PEOPLE of the State of New York, Respondent, v. Guy BEAUDET, Appellant.
• Decision Date: 31 May 1973
• Court: New York Court of Appeals Court of Appeals

Page 495

345 N.Y.S.2d 495

32 N.Y.2d 371, 298 N.E.2d 647

The PEOPLE of the State of New York, Respondent, v. Guy BEAUDET, Appellant.

Court of Appeals of New York.

May 31, 1973.

Richard T. Farrell, Brooklyn, for appellant.

Ara Asadourian, Dist. Atty. (Peter E. Murphy, Plattsburgh, of counsel), for respondent.

BREITEL, Judge.

Defendant appeals from his conviction for murder in the first degree (former Penal Law, § 1044, subd. 2). The prosecution was for felony murder committed in a bank robbery. The principal issue is whether the jury should have been charged that a prosecution witness was an accomplice as a matter of law.

Defendant was convicted after a jury trial and sentenced to life imprisonment. The Appellate Division unanimously affirmed with an opinion, 31 A.D.2d 705, 295 N.Y.S.2d 697.

The order should be reversed, and a new trial ordered. The jury must have been charged that the prosecution witness Berube was an accomplice and that his testimony would, therefore, have to be corroborated.

In March, 1965, defendant Beaudet, codefendants Pilon and Dupuis, and the witnesses Berube and Couture, all French Canadians from Montreal, were involved in a plan to rob the National Commercial Bank and Trust Company at Ellenberg Depot in Clinton County. The plan was carried out on March 22, 1965. Beaudet, Pilon, and Dupuis were driven by Couture across the border in a stolen car. The three donned ski masks and entered the bank carrying two sawed-off carbines and at least one pistol. One of them shot a teller twice, killing him, and the three left with about $4,000. They raced back to Canada, abandoned the car, and returned to Montreal.

Couture and Berube testified for the prosecution. The trial court instructed the jury that Couture was an accomplice and that his testimony would have to be corroborated, but left the issue as a jury question of fact whether Berube was also an accomplice. The extent of Berube's participation, all developed from his own testimony, is crucial on this appeal.

At the time of trial, Berube was 23 years old. He already had several felony convictions. Apparently he specialized in the stealing of automobiles and tractor-trailers. Berube met Couture and the three codefendants on several occasions at a bar in Montreal. Berube knew that plans were being made to rob a bank in the United States. Couture asked him to steal a 1964, dark blue Buick Wildcat, and he agreed. Berube was to be paid $100 for the stolen car. Berube and Dupuis located an appropriate car at a shopping center. Berube unlocked the car with a screwdriver, installed a connection switch given to him by Couture, started the car and drove away. At first the car was shifted from place to place. Then, Berube drove it to his mother's camp 33 miles from Montreal to be hidden until it was needed for the robbery. Later, Berube and defendant Beaudet stole two California license plates and put them on the Buick.

The plan included the use of firearms to 'get rid of' anyone who 'tried to stop' the robbery. On two occasions Berube accompanied Couture to Couture's house to pick up two sawed-off carbines and at least one revolver. Berube on one occasion transported the weapons. When defendant and Berube were at Berube's mother's camp to change the license plates on the Buick, they tested a pistol.

Berube was asked more than once if he wanted to go along on the robbery, but he declined saying 'I am not interested in it.' In addition to the $100 for stealing the car, Couture promised Berube a 'gift'. After the robbery Berube asked Couture and Dupuis for his money, but he was never paid.

There was evidence other than that provided by Berube and Couture linking defendant to the robbery. One Lamoreux testified that he purchased about $900 of American currency from Beaudet, and later testimony established that the serial numbers on some of the bills corresponded with those taken from the bank.

Defendant contends that it was prejudicial error not to charge the jury that Berube was an accomplice as a matter of law. The prosecutor contends that an issue of fact for the jury was raised by defendant's statement that he was not interested in the robbery and his refusal to accompany the others in the bank robbery.

Under section 399 of the former Code of Criminal Procedure applicable at the time of the trial, 'A conviction cannot be had upon the testimony of an accomplice, unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the crime.' The definition of an 'accomplice', not provided in the code, has been judicially elaborated.

The familiar test is whether an alleged accomplice was so connected with the crime that he could have been convicted as a principal or as an accessory before the fact (e.g., People v. Wheatman, 31 N.Y.2d 12, 22, 334 N.Y.S.2d 842, 849, 286 N.E.2d 234, 239, cert. den. sub nom. Marcus v. New York, 409 U.S. 1027, 93 S.Ct. 460, 34 L.Ed.2d 321; People v. Cohen,223 N.Y. 406, 425--426, 119 N.E. 886, 892, cert. den. 248 U.S. 571, 39 S.Ct. 11, 63 L.Ed. 426; People v. Sweeney, 213 N.Y. 37, 46, 106 N.E. 913, 917; People v. Zucker, 20 App.Div. 363, 365, 46 N.Y.S. 766, 767, affd.154 N.Y. 770, 49 N.E. 1102). To be an accomplice the witness must have taken part in the preparation or perpetration of the crime, with intent to assist in the crime (People v. White, 26 N.Y.2d 276, 278, 309 N.Y.S.2d 909, 911, 258 N.E.2d 199, 200; People v. Cohen, 223 N.Y., at p. 425, 119 N.E., at p. 892, Supra; People v. Zucker, 20 App.Div., at p. 365, 46 N.Y.S. at p. 767, Supra). In short, it is sufficient that he 'criminally participated with the defendant in the commission of the crime' (People v. Rossi, 11 N.Y.2d 379, 383, 230 N.Y.S.2d 7, 10, 183 N.E.2d 895, 897).

For example, in People v. Elbroch, 250 App.Div. 583, 294 N.Y.S. 961, relied on by defendant, the court held that a prosecution witness, Blauner, was an accomplice as a matter of law. Blauner testified that he had been present when a kidnapping plot involving eight conspirators was discussed; that he went with another to buy a truck used in the plan; that he 'cased' the victim's place of business; that he transported defendants to an assembly point immediately before the kidnapping; and that, after the kidnapping, he was given $250 of the ransom money. Blauner, however, was not present when the victim was seized, possibly because he was known to the victim. (250 App.Div., at p. 588, 294 N.Y.S., at p. 967, Supra.) Thus, to be an accomplice, as stated above, it is enough to assist in the preparation of the crime, and one need not be present at nor direct the act completing the crime (see, also, People v. Bell, 32 A.D.2d 781, 782, 302 N.Y.S.2d 946, 949). Specifically, it has been held that one may be guilty of felony murder, even if one were some distance from the scene of the crime at the time of the killing (see People v. Lunse, 278 N.Y. 303, 312, 16 N.E.2d 345, 348; People v. Michalow, 229 N.Y. 325, 330, 128 N.E. 228, 229).

The prosecution relies primarily on cases establishing that to be an accomplice one must intend to assist in the crime (e.g., People v. Wheatman, 31 N.Y.2d 12, 22, 334 N.Y.S.2d 842, 849, 286 N.E.2d 234, 239, Supra; People v. Cohen, 223 N.Y. 406, 425, 119 N.E. 886, 892, Supra). Intent to commit a crime in this instance, however, may be inferred from Berube's various acts in the preparation for the robbery.

The cases People v. Cohen (supra) and People v. Swersky, 216 N.Y. 471, 111 N.E. 212, cited by the parties, are not particularly helpful. In the Cohen case, defendant Cohen had initiated various plans and had hired a succession of men to frighten or kill one Baff. Eventually Baff was shot and defendant was convicted. One Sorro had been indicted for an initial attempt to frighten Baff by placing a bomb that never went off on Baff's porch. (223 N.Y., at p. 417, 119 N.E., at p. 889, Supra.) Sorro either did not know about or refused to participate in later plans to frighten or kill Baff, including the one that resulted in his death (Id., at p. 425, 119 N.E., at p. 892). The court held that as a matter of law Sorro was not an accomplice, reasoning that it did not follow that one who was involved in an initial plan to frighten Baff also took part in a later plan to kill him (Id., at pp. 424--426, 119 N.E., at pp. 891-- 892). In the Swersky case, the crime charged was poisoning a horse of an ice cream dealer. One Erlichman was a member of an ice cream dealers association responsible for poisoning horses of nonmember competitors. There was evidence that Erlichman paid money to the association to be used for poisoning, but there was also evidence that he did not do so willingly (216 N.Y., at p. 475, 111 N.E., at p. 213, Supra). Under the circumstances, the court held that it was for the jury to decide whether Erlichman was an accomplice.

If the undisputed evidence, contrary to the situation in the Cohen and Swersky cases (supra) establishes that a witness is an accomplice, the jury must be so instructed. Only if different inferences may be drawn from the evidence regarding complicity should the question be left to the jury. (E.g., People v. Wheatman, 31 N.Y.2d 12, 22--23, 334 N.Y.S.2d 842, 848--850, 286 N.E.2d 234, 238--240, Supra; People v. Clougher, 246 N.Y. 106, 111, 158 N.E. 38, 40; People v. Elbroch, 250 App.Div. 583, 589, 294 N.Y.S. 961, 968, Supra; People v. Santo, 43 Cal.2d 319, 326, 273 P.2d 249; 3 Wharton's Criminal Evidence (13th ed.), § 645, p. 347.) Where, as a matter of law, the witness is an accomplice, failure to so charge has been said to be harmful error (People v. Jenner, 29 N.Y.2d 695, 696--697, 325 N.Y.S.2d...