People v. Delgado
| Decision Date | 15 April 2008 |
| Docket Number | 2004-02039.,2004-02506. |
| Citation | 50 A.D.3d 915,2008 NY Slip Op 03469,855 N.Y.S.2d 253 |
| Parties | THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. AQUILES DELGADO, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Ordered that the judgment, as amended, rendered under indictment No. 174/03, is modified, on the law, by vacating the convictions of criminal sale of a controlled substance in the first degree, criminal possession of a controlled substance in the second degree, and criminal possession of a controlled substance in the third degree, and the sentences imposed thereon; as so modified, the judgment is affirmed, and those counts of the indictment are dismissed; and it is further,
Ordered that the judgment rendered under indictment No. 167/03 is reversed, the defendant's plea of guilty and the sentence imposed thereon are vacated, and the matter is remitted to the County Court, Rockland County, for further proceedings in accordance herewith.
The defendant was charged under indictment No. 174/03 with having acted in concert with codefendants Eduardo Cortes, Lloyd Keyes, and Jose Rodriguez to sell more than two ounces of cocaine to an undercover police officer on February 14, 2003. All three codefendants pleaded guilty to reduced charges prior to the defendant's trial, and were the primary witnesses against him. According to this accomplice testimony, the cocaine was prepared and packaged at Cortes's apartment on the afternoon of the sale. Cortes diluted the cocaine by mixing it with crushed inositol vitamin pills, and the defendant then allegedly compressed the mixture with a hand vise so that it would appear to be in rock form.
In addition to the accomplice testimony of the codefendants, the prosecution presented evidence that an analysis of the cocaine sold to the undercover officer revealed the presence of inositol, which is a common cutting agent. Furthermore, Cortes's girlfriend testified that she had seen the defendant in Cortes's apartment on the morning of the sale, as well as on prior occasions. However, she never observed any drug-packaging activities taking place, and left the apartment several hours before the codefendants Keyes and Rodriguez arrived to pick up the packaged cocaine for sale to the undercover police officer. A search warrant executed at Cortes's apartment approximately six weeks after the sale resulted in the recovery of drug paraphernalia, including scales, several bottles of inositol powder, and additional cocaine.
At the close of the People's case, the defendant moved to dismiss all counts against him stemming from the February 14, 2003 cocaine sale upon the ground that there was insufficient independent evidence corroborating the accomplice testimony of his codefendants. The trial court denied the defendant's motion, and thereafter he was found guilty of criminal sale of a controlled substance in the first degree and criminal possession of a controlled substance in the second and third degrees in connection with the subject sale.
On appeal, the defendant continues to maintain that the prosecution failed to present sufficient corroborative evidence to establish his guilt of the counts of the indictment relating to the February 14, 2003 sale. We agree. In New York, "[a] defendant may not be convicted of any offense upon the testimony of an accomplice unsupported by...
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