People v. Cona

• Decision Date: 13 December 1979
• Citation: 424 N.Y.S.2d 146,399 N.E.2d 1167,49 N.Y.2d 26
• Parties: , 399 N.E.2d 1167 The PEOPLE of the State of New York, Appellant-Respondent, v. William CONA et al., Respondents, and Raymond Melnick et al., Appellants.
• Court: New York Court of Appeals Court of Appeals

Page 146

424 N.Y.S.2d 146

49 N.Y.2d 26, 399 N.E.2d 1167

The PEOPLE of the State of New York, Appellant-Respondent, v. William CONA et al., Respondents, and Raymond Melnick et al., Appellants.

Court of Appeals of New York.

Dec. 13, 1979.

Eugene Gold, Dist. Atty. (Richard C. Laskey, Asst. Dist. Atty., of counsel), for the People of the State of New York, appellant-respondent

William Sonenshine and Joseph Fallek, Brooklyn, for Raymond Melnick, Richard White and others, appellants.

Stanley M. Meyer, Brooklyn, for William Cona and another, respondents.

William Sonenshine and Joseph Fallek, Brooklyn, for Melvin Brown and others, respondents.

John F. Keenan, Deputy Atty. Gen., as Special State Prosecutor (Thomas A. Duffy, Jr., Great Neck, and Mark M. Baker, New York City, of counsel), amicus curiae.

OPINION OF THE COURT

GABRIELLI, Judge.

This case requires us to determine whether the testimony of an admitted accomplice may artificially be divided into testimony concerning events which occurred before the witness became an accomplice and testimony about incidents which took place after the witness became an accomplice, so that the prior testimony can serve as corroboration for the latter testimony. The accomplice corroboration rule cannot be so readily evaded, for an accomplice simply cannot corroborate his own testimony. Any other result would serve only to eviscerate the accomplice corroboration requirement imposed by CPL 60.22 (subd. 1).

The prosecutions involved in this appeal are based on a scheme devised by several New York City police officers to obtain funds from gamblers in return for a guarantee that the operations of those gamblers would not be curtailed by police interference. Following an extensive jury trial, each defendant involved in this appeal was convicted of one count of bribe receiving, one count of receiving a reward for official misconduct, two counts of conspiracy, and one count of official misconduct. On an appeal by the convicted defendants, the Appellate Division, 60 A.D.2d 318, 401 N.Y.S.2d 239, affirmed the convictions of defendants Melnick, White, Bergold and Fortuna. The convictions of defendants Reitano, Maroney, Brown, Conti, Carter, Cona, Auletta, Zummo, Mattina, Callis and Greene, however, were reversed by the Appellate Division on the ground that the evidence of those defendants' guilt was comprised solely of uncorroborated accomplice testimony. For the reasons discussed below, we conclude that the order of the Appellate Division should be modified by reinstating the convictions of defendants Reitano, Maroney, Brown, Conti, Carter, Cona and Auletta, and otherwise affirmed.

The convictions of defendants Reitano, Maroney, Brown, Conti, Carter, Cona and Auletta were based on the uncorroborated testimony of Police Officer Buchalski, originally a conceded member of the conspiracy who eventually became a police agent. ¹ The Appellate Division concluded that these convictions could not stand due to the absence of corroboration other than Buchalski's own testimony. Due to our limited powers of review we may not reach this issue. To create and preserve a question of law amenable to appellate review, a defendant in a criminal case normally must raise that issue before the court of original jurisdiction (CPL 470.05, subd. 2; compare People v. Michael, 48 N.Y.2d 1, 420 N.Y.S.2d 371, 394 N.E.2d 1134, with People v. Robinson, 36 N.Y.2d 224, 367 N.Y.S.2d 208, 326 N.E.2d 784). In the instant case, no objection was made to that portion of the court's charge which dealt with the application of the accomplice corroboration rule to Buchalski's testimony concerning these defendants; hence, under settled rules of law and statutory construction, these defendants failed to preserve a question of law as to the correctness of that portion of the charge. ² Unlike the Court of Appeals, the Appellate Division as an intermediate court of review has broad power to review questions of fact and discretion as well as questions of law (see CPL 470.15, 470.30). Hence, the Appellate Division, if it deems it appropriate, may exercise its discretionary power to review alleged errors even in the absence of that timely objection which is necessary to create a question of law. Where the Appellate Division exercises this discretion, however, and reverses a conviction on the basis of an issue not preserved, its order is then grounded at least in part upon the exercise of that discretion and is thus not appealable to this court (see People v. Johnson, 47 N.Y.2d 124, 417 N.Y.S.2d 46, 390 N.E.2d 764; People v. Williams, 31 N.Y.2d 151, 335 N.Y.S.2d 271, 286 N.E.2d 715).

In the instant case, the Appellate Division reviewed defendants' claim of error with respect to the accomplice corroboration charge given concerning Buchalski's testimony, despite the defendants' failure to timely object to that portion of the charge. Had the Appellate Division's decision to review this claim been based on an exercise of discretion, we would have been compelled to dismiss the appeal insofar as it pertains to the Appellate Division reversal of the convictions of these defendants. As it is, however, the Appellate Division erroneously concluded as a matter of law that a question of law was preserved with respect to the corroboration of Buchalski's testimony despite defendants' failure to object. Hence, the Appellate Division order was actually based on a determination of law, albeit an erroneous one, and is thus not subject to dismissal. Our power to review, however, is limited to that question of law, and after concluding that the Appellate Division erred in determining that a question of law was presented, our review must stop at that point and we must remit the matter to the Appellate Division for that court to determine whether it would be appropriate to exercise its broader review power.

A different situation exists, however, with respect to defendants Zummo and Mattina. Their convictions were based upon the uncorroborated testimony of Police Officer O'Brien. O'Brien's initial contacts with this criminal enterprise arose in the course of his activities as an undercover police agent assigned to investigate possible police corruption. Had he remained faithful to his duty, there would of course be no need to corroborate his testimony. This is so because an undercover police agent is simply not an accomplice, due to the absence of any criminal intent. As it is, however, O'Brien eventually succumbed to temptation, eschewed his obligations as an undercover agent, and became an active and actual member of the conspiracy. Although the trial court charged the jury that O'Brien was an accomplice as a matter of law after this conversion and that his testimony concerning incidents which occurred while he was an accomplice must be corroborated, the court refused to charge that O'Brien's testimony about prior events was also subject to the corroboration requirement. By timely requesting such a charge, these defendants created a question of law amenable to appellate review; hence the determination of the Appellate Division as to these defendants was made on the law alone and is subject to our review. For the reasons discussed below, we conclude that the Appellate Division correctly set aside the convictions of defendants Zummo and Mattina.

An accomplice is "a witness in a criminal action who, according to evidence adduced in such action, may reasonably be considered to have participated in: (a) The offense charged; or (b) An offense based upon the same or some of the same facts or conduct which constitute the offense charged" (CPL 60.22, subd. 2). The prosecutions underlying this appeal were premised upon the defendants' participation in an ongoing criminal enterprise pursuant to which police officers solicited bribes from gamblers on a regular basis in return for "protection" from police interference with the gamblers' operations. It is conceded that O'Brien fully participated in this scheme for a considerable period of time following his abandonment of his duties as an undercover agent. Hence, at the very least, he necessarily participated in "(a)n offense based upon the same or some of the same facts or conduct which constitute the offense charged". Having reached this conclusion, we must hold that, in accord with the plain language of the law, the defendants could not be convicted on the basis of O'Brien's uncorroborated testimony. There exists no justification for distinguishing between testimony pertaining to different periods of time as a basis for application of the accomplice corroboration rule. The effect of a contrary decision would be to make it possible to avoid the accomplice corroboration rule in any situation in which an admitted accomplice did not participate in all of the crimes for which the defendants are tried. In such a case, the testimony of the accomplice concerning incidents which he observed but in which he did not participate, under the approach urged by the People, would not be subject to the corroboration requirement and could indeed serve as corroboration for the witness' other testimony. So viewed, the result in such a case would be that which the accomplice rule was specifically designed to avoid: "conviction (based) solely upon the testimony of persons who are In some way criminally implicated in * * * the general conduct or factual transaction on trial" (Denzer, Practice Commentary, McKinney's Cons. Laws of N.Y., Book 11A, CPL 60.22, pp. 194-195).

The accomplice corroboration rule is premised upon a legislative determination that the testimony of individuals who may themselves be criminally liable is inherently suspect. This is deemed to be true because such individuals may be subject to pressures impelling them to color testimony in order to protect themselves by belittling the actual extent of their involvement in the criminal enterprise at the expense of others. In a similar vein, a person who agrees...