People v. Cunningham
| Decision Date | 06 July 1978 |
| Citation | 406 N.Y.S.2d 899,64 A.D.2d 722 |
| Court | New York Supreme Court — Appellate Division |
| Parties | The PEOPLE of the State of New York, Respondent, v. Michael CUNNINGHAM, Appellant. |
James E. Barnes, Oneida, for appellant.
William F. O'Brien, III, Madison County Dist. Atty., Wampsville (Bernard Kobroff, New York City, of counsel), for respondent.
Before MAHONEY, P. J., and GREENBLOTT, KANE, MAIN and MIKOLL, JJ.
Appeal from a judgment of the County Court of Madison County, rendered March 4, 1976, upon a verdict convicting defendant of the crime of criminal sale of a controlled substance in the third degree and two counts of the crime of criminal sale of a controlled substance in the second degree.
Of the many grounds for reversal urged, only those concerning corroboration of accomplice testimony and the adequacy of the indictment warrant discussion.
The chief evidence against the defendant was the testimony of Robert MacRae, an accomplice to whom the defendant is accused of having sold hallucinogenic substances. To corroborate MacRae's testimony the People were obliged to present evidence "tending to connect the defendant with the commission (of the crimes charged)" (CPL 60.22). Corroborative evidence of an accomplice's testimony is sufficient:
"(I)f 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 (citations omitted)." (People v. Wheatman, 31 N.Y.2d 12, 20, 334 N.Y.S.2d 842, 847, 286 N.E.2d 234, 237, cert. den. 409 U.S. 1027, 93 S.Ct. 460, 34 L.Ed.2d 321.)
MacRae testified that the defendant obtained his supply of drugs from California and that in the beginning of September an agreement was reached whereby the defendant would go to his source in California and MacRae would wire him money from Syracuse. Part of the money would be payment for drugs previously delivered by the defendant and part as a down payment for the new shipment that the defendant was going to California to acquire. According to MacRae he wired the money ($200) to the defendant in Berkeley, California, from the Syracuse Western Union office on September 10, 1974, and a package containing drugs was received by MacRae in the mail on September 12. On September 26 MacRae and others were arrested after having sold a large amount of drugs to an undercover police officer. MacRae testified the drugs were the same received in the post from California two weeks earlier.
The corroborating evidence consists of proof that MacRae in fact wired the money to the defendant in Berkeley, California. The People put in evidence a copy of the money order sent by MacRae on September 10 and a copy of the receipt signed by the defendant on the same day at the Western Union office in Berkeley.
The corroborating evidence here does not, in itself, indicate any criminal activity. However, it does independently establish that the defendant was either a close friend or business associate of MacRae. In light of the fact that MacRae was apprehended two weeks after the wiring of the money with a large amount of illegal drugs, the independent proof that the wiring occurred constitutes a rational basis for the jury to believe MacRae's testimony inculpating the defendant. "Matters in themselves of seeming indifference or light trifles of the time and place of persons meeting may so harmonize with the accomplice's narrative as to have a tendency to furnish the necessary connection between defendant and the crime" (People v. Dixon, 231 N.Y. 111, 116-117, 131 N.E. 752, 754).
As to the adequacy of the indictment, the defendant argues a failure to comply with subdivision 6 of section 200.50 of the Criminal Procedure Law, which requires the indictment to state "in each count that the offense charged therein was committed on, or on or about, a designated date, or during a designated...
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