People v. Brannon

• Citation: 394 N.Y.S.2d 974,58 A.D.2d 34
• Parties: PEOPLE of the State of New York, Respondent, v. Clinton BRANNON, Appellant. PEOPLE of the State of New York, Respondent, v. Lonzo HARDEN, Appellant.
• Decision Date: 03 June 1977
• Court: New York Supreme Court Appellate Division

Page 974

394 N.Y.S.2d 974

58 A.D.2d 34

PEOPLE of the State of New York, Respondent, v. Clinton BRANNON, Appellant.

PEOPLE of the State of New York, Respondent, v. Lonzo HARDEN, Appellant.

Supreme Court, Appellate Division, Fourth Department.

June 3, 1977.

Martin S. Handelman, Rochester, for appellants.

Lawrence T. Kurlander, Dist. Atty., Rochester (Edward Spires, Rochester, of counsel), for respondent.

Before MARSH, P. J., and MOULE, SIMONS, DILLON and WITMER, JJ.

DILLON, Justice.

The indictment accuses Clinton Brannon, Lonzo Harden and John Albert Simpson of the crimes of attempted sale of a controlled substance in the first degree (Penal Law, §§ 110.00; 220.43); criminal possession of a controlled substance in the third degree (Penal Law, § 220.16); and conspiracy in the first degree (Penal Law, § 105.15).

The first two counts are alleged to have occurred on November 22, 1974 and the conspiracy count charges that the illicit agreement to sell narcotics occurred between November 19 and November 22, 1974. Pursuant to an agreement made before trial, Simpson testified at the trial of Brannon and Harden.

It appears that several months preceding the times alleged in the indictment, Simpson had on two occasions sold narcotics to John Herritage, an undercover police agent. As a result of phone conversations on November 20 and 21, both of which were monitored and recorded, Simpson agreed to sell one ounce of heroin to Herritage for the sum of $1,600. Delivery was to be made on November 22 at Simpson's home on Luther Circle in the City of Rochester. When they met at the appointed time on Luther Circle, Simpson did not have possession of the heroin which, according to his testimony, he was to receive from Brannon and Harden. At that point, at the urging of Herritage, Simpson agreed to procure another half ounce at a new total agreed price of $2,300.

Herritage entered and remained in Simpson's home while Simpson departed in his automobile. A short time later he returned to his home and made two phone calls. At the outset of one, according to Herritage, he said "Is Lonzo there?" Simpson's telephone was monitored by a "trap" device which recorded the dialed phone numbers. The calls were made to numbers listed at the residences of Brannon and Harden, but it does not appear that he reached either of them.

Simpson again left his home to seek out Brannon and Harden, and shortly thereafter Brannon and Harden arrived by automobile at Luther Circle and were observed and identified by Officer Hughes who was on surveillance in the area as part of the police operation. Officer Martin, in another vehicle, also made observations of the movements of Simpson, Brann and Harden at various points leading to and from Luther Circle.

Simpson returned to Luther Circle and Hughes observed Simpson, Brannon and Harden in conversation. Though not seen by Hughes, Simpson was handed a package of heroin. Simpson then told Brannon, in the presence of Harden, that Herritage wanted another half ounce. Brannon agreed and said that they would return. Simpson entered his home, gave the package to Herritage and told him to wait for the other half ounce which he said he would have in a few minutes. No money was exchanged. Simpson then received a phone call which he said was from Harden and was told to meet Brannon and Harden at Cottage and Plymouth Streets, a short distance away. He again left his home. Hughes, who had a receiving set through which he could hear conversations from a device worn by Herritage, was also in radio communication with other police vehicles and when Simpson left Luther Circle, he issued a transmission concerning Simpson's movements.

When Simpson approached the intersection, he came under the observation of Officer Martin. Simpson left his car and walked along Cottage Street. Martin then saw Brannon and Harden moving along Cottage Street in a Cadillac automobile leased by Brannon, and saw what appeared to be a napkin thrown from the car. Simpson picked up the napkin and put it in his pocket. Martin placed Simpson under arrest, and Brannon and Harden were apprehended within minutes thereafter. The napkin, which was recovered from Simpson's pocket, contained a packet of heroin.

On chemical analysis it was determined that the substance given to Herritage at the Luther Circle home of Simpson weighed 27.95 grams of which 6.9% was heroin. The contents of the packet picked up by Simpson on Cottage Street weighed 16.40 grams of which 7.2% was heroin. The chemist testified that there are 28 grams in one ounce and that the combined weight of the two samples was 44.35 grams.

On direct examination Simpson testified that he had an agreement with Brannon and Harden to sell heroin for them and that during the month of November, before he was arrested, he sold various amounts, "four, five bundles, sometimes", each bundle having contained 24 bags or doses of heroin. He sold the heroin for $130 per bundle "but you didn't always get $130.00 for it", and gave the money to Brannon and Harden. He was paid in money and heroin which he used to satisfy his addiction. He also said that he cut and tested heroin for them because they were not addicts. He would test it "to see if it was too strong or too weak or, if it was good enough to sell". On redirect examination Simpson elaborated upon the nature and scope of his prior drug dealings on behalf of Brannon and Harden.

On this appeal from a judgment entered upon a jury verdict of guilty of all counts in the indictment, Brannon and Harden contend that there was insufficient evidence to establish the existence of a conspiracy; that there was insufficient evidence to corroborate the testimony of the accomplice Simpson; that the court erred in admitting testimony as to prior criminal conduct between Simpson and the defendants, and between Simpson and Herritage; and that it was

error for the People to combine two separate and distinct narcotic transactions in an effort to elevate the charge to the level of a class A-I felony.

THE CONSPIRACY

The defendants' argument relates less to the sufficiency of the evidence taken as a whole than it does to their claim that the People's order of proof was prejudicial. They contend that it was error to receive the testimony of the co-conspirator Simpson before the existence of the conspiracy had been "proved", thus binding the defendants to his statements, acts and admissions. The argument is without merit.

The conspiracy was proved not only circumstantially but directly through the testimony of a co-conspirator. This, of course, is permissible (People v. Grutz, 212 N.Y. 72, 79, 105 N.E. 843, 845; People v. Flack, 125 N.Y. 324, 26 N.E. 267). Since Simpson was an accomplice, however, it was necessary to corroborate his testimony with evidence tending to connect the defendants with the commission of the conspiracy (CPL 60.22, subd. 1). It is not necessary that such legal burden be fully met in a criminal trial as a precondition to the introduction of specific acts of co-conspirators (People v. Connolly, 253 N.Y. 330, 342, 171 N.E. 393, 397). Here the testimony of Simpson established the fact of an illicit agreement and thereafter "every act of the individual conspirators done in furtherance of the common purpose (was) admissible" (People v. Connolly, supra, p. 340, 171 N.E. p. 397).

THE CORROBORATION

The court properly charged that Simpson was an accomplice as a matter of law. Thus the defendants could not be convicted of any of the offenses charged in the indictment upon his testimony alone, unsupported by corroborative evidence tending to connect the defendants with its commission (CPL 60.22, subd. 1). The corroborative evidence is sufficient if it tends to connect the defendants with the commission of the crime "in such a way as may reasonably satisfy the jury that the accomplice is telling the truth" (People v. Wheatman, 31 N.Y.2d 12, 20, 334 N.Y.S.2d 842, 847, 286 N.E.2d 234, 237, citing People v. Dixon, 231 N.Y. 111, 116, 131 N.E. 752, 753).

Where the principal witness is an accomplice, corroboration is necessary on all counts of the indictment (People v. Malizia, 4 N.Y.2d 22, 171 N.Y.S.2d 844, 148 N.E.2d 897), but it is equally well-settled that "the corroboration need not establish every element of the offense (see, e. g., People v. Hooghkerk, 96 N.Y. 149, 162)." (People v. Daniels, 37 N.Y.2d 624, 632, 376 N.Y.S.2d 436, 442, 339 N.E.2d 139, 143. (Wachtler, J., concurring).) Whether the testimony of the accomplice has been corroborated to the extent required by CPL 60.22 is a question of fact for the jury.

Applying those broad principles to this case, we find that there was a substantial basis upon which the jury could find that the corroboration standard had been satisfied. The activities of the principals were well-established through the testimony of several surveillance police officers, from phone company records and by the testimony of the undercover police agent. While there are some discrepancies in the corroborative testimony, "the independent evidence need not * * * exclude to a moral certainty every hypothesis but that of wrongdoing" (People v. Kohut, 30 N.Y.2d 183, 193-194, 331 N.Y.S.2d 416, 425, 282 N.E.2d 312, 318). It was for the jury to weigh such discrepancies and determine whether the corroborative evidence still had a tendency to connect the defendants with the commission of the crimes.

PRIOR CRIMINAL CONDUCT

The conspiratorial agreement was alleged to have been made during a three-day period of November 19 to November 22, 1974. While defense counsel did not immediately object to Simpson's testimony as to prior drug sales on behalf of the defendants, his subsequent objection was closely proximate and was adequate to preserve the issue for appeal (CPL 470.05). His objection was overruled and on redirect examination the District Attorney resumed questioning Simpson on his earlier drug activity in association with the...