People v. Curkendall

• Decision Date: 15 May 1967
• Citation: 28 A.D.2d 589,279 N.Y.S.2d 929
• Court: New York Supreme Court — Appellate Division
• Parties: The PEOPLE of the State of New York, Respondent, v. Merle CURKENDALL, Appellant.

Page 929

279 N.Y.S.2d 929

28 A.D.2d 589

The PEOPLE of the State of New York, Respondent, v. Merle CURKENDALL, Appellant.

Supreme Court, Appellate Division, Third Department.

May 15, 1967.

J. R. Hoover, Elmira, for appellant.

Richard B. Thaler, Ithaca, for respondent.

Before GIBSON, P.J., and HERLIHY, REYNOLDS, AULISI and STALEY, JJ.

AULISI, Justice.

Appeal from a judgment of the County Court of Tompkins County convicting the defendant of the crimes of burglary third degree and grand larceny first degree after a trial by jury.

The defendant makes two principal arguments for reversal (1) on the ground that the conviction is based upon illegal, incompetent and irrelevant evidence and (2) that the conviction is based entirely upon the testimony of two accomplices without corroboration. The record before us supports the verdict of the jury. Section 399 of the Code of Criminal Procedure provides that '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.' We have here not only the question whether the fact relied upon as 'other evidence' to corroborate the testimony of accomplices did tend to connect the defendant with the commission of the crime but we also have the question whether the witness testifying to this fact was herself an accomplice.

To be considered an accomplice one must be so connected with the crime that at common law he might himself have been convicted either as a principal or as an accessory before the fact. To warrant such a conviction the one accused must have taken part in the perpetration of, or preparation for, the crime, with intent to assist in the crime. To make one an accomplice, enough must be shown to justify the inference that the offender has counseled or induced or encouraged the crime (People v. Cohen, 223 N.Y. 406, 425, 119 N.E. 886, cert. den. 248 U.S. 571, 39 S.Ct. 11, 63 L.Ed. 426). The Trial Court submitted to the jury the question whether defendant's daughter-in-law was an accomplice when in its charge it stated: 'It will be for you to determine, if you believe her testimony, whether or not she was an accomplice. If you find that she was an accomplice, then you must find other, independent testimony tending to connect the defendant with the commission of these two crimes before you can convict him. If you find that she was not an accomplice in the commission of these two crimes, you...