People v. Dingle
| Decision Date | 11 August 1972 |
| Citation | 335 N.Y.S.2d 233,70 Misc.2d 840 |
| Parties | The PEOPLE of the State of New York v. Johnnie DINGLE and Lonnie Early, Defendants. |
| Court | New York Supreme Court |
Frank S. Hogan, Dist. Atty. (Clifford Fishman, New York City, of counsel), for the People.
Norick & Pollina, New York City (Michael C. Pollina, New York City, of counsel), for defendant Lonnie Early.
The defendant, Lonnie Early, indicted with one Johnnie Dingle, and charged with the crimes of Conspiracy in the Second Degree and Criminal Possession of a Dangerous Drug in the Third Degree, moves for an order granting an inspection of the grand jury minutes and/or in the alternative, the dismissal of the indictment.
The instant motion poses this unique problem. Is the mere presence of a person in an automobile sufficient to corroborate incriminating testimony of an accomplice who was apprehended in the car with contraband drugs concealed in his pocket?
The testimony presented to the grand jury was substantially as follows:
Patrolman Joseph Petrusso testified that on February 22, 1972 he observed the defendants, Johnnie Dingle and Lonnie Early, in an automobile at 23rd Street and 7th Avenue in the Borough of Manhattan. The defendant Early was operating the auto and Dingle was the passenger. After identifying himself, the officer searched the defendants and recovered a bag containing in the excess of 3/4 of an ounce of heroin from the pants pocket of Dingle.
Dingle testified before the grand jury, pursuant to a waiver of immunity. He stated that Early was his brother-in-law and that he was delivering the narcotics found in his possession to an individual named 'Bob', in accordance with instructions by Early. Prior to his arrest, he had received and delivered other packages of narcotics to persons unknown to him, pursuant to telephone instructions by Early.
The issue presented is whether, as a matter of law, there was sufficient corroboration of Dingle's testimony so as to indict Early, as Dingle was an accomplice.
Criminal Procedure Law § 60.22 provides that a defendant may not be convicted of any offense upon the testimony of an accomplice unsupported by corroborative evidence tending to connect the defendant with the commission of such offense. The corroboration of an accomplice is required before a grand jury just as it is required to obtain a conviction. (People v. Nitzberg,289 N.Y. 523, 47 N.E.2d 37; People v. Cilento, 2 N.Y.2d 55, 156 N.Y.S.2d 673, 138 N.E.2d 137)
A motion to inspect the grand jury minutes and/or to dismiss the indictment is a proper vehicle for testing the sufficiency of the corroborative evidence presented to the grand jury. (Criminal Procedure Law § 210.30(2); People v. Gentile, 20 A.D.2d 412, 247 N.Y.S.2d 551)
The only corroborative evidence presented to the grand jury is the testimony of Patrolman Petrusso that at the time of the arrest, Early and Dingle were present together in the auto. The courts have always looked with suspicion upon the testimony of an accomplice and have asserted that it must be accepted only with caution. (People v. Kress, 284 N.Y. 452, 31 N.E.2d 898; People v. Cohen, 223 N.Y. 406, 119 N.E. 886). The required corroborative testimony is insufficient if it tends only to establish the credibility of the accomplice. The statute does not say that there may be a conviction on the testimony of an accomplice alone, if shown to be credible. The corroborative testimony, to have any value, must be evidence from an independent source of some material fact tending to show that the defendant was implicated in the crime. The independent evidence other than that of the accomplice must fairly and reasonably tend to connect the defendant with the commission of the crime. (People v. Kress, Supra; People v. Everhardt, 104 N.Y. 591, 11 N.E. 62; People v. Taleisnik, 225 N.Y. 489, 122 N.E. 615)
The People, citing People v. Malizia, 4 N.Y.2d 22, 171 N.Y.S.2d 844, 148 N.E.2d 897 and People v. Brown, 30 A.D.2d 279, 291 N.Y.S.2d 573 argue that the association of the two defendants at the time and place of the crime, is sufficient corroboration in support of Dingle's testimony. As already stated, the corroborative evidence must reasonably tend to connect the defendant with the commission of the crime. In Malizia, supra, the corroborative evidence was more than mere association. In that case, the defendant was charged with selling and conspiracy to sell a dangerous drug. Malone, a co-conspirator, testified that he and the defendant were partners in a joint venture to sell narcotics. He testified that on various occasions the defendant would give him drugs to sell on consignment. Convicted on various sale counts, the Court of Appeals dismissed them (but not the conspiracy count) stating there was not sufficient corroboration as to Malone's testimony.
As to the conspiracy count, the Court found the following facts, in total, to be sufficient corroboration. Malone made a telephone call in the presence of the police to arrange a meeting with the defendant, the defendant met Malone at the prearranged drug store. Malone followed the defendant to a phone booth at a nearby hospital and asked him 'What's the matter'; narcotics were found approximately twenty feet from the phone booth; the telephone number Malone called to arrange the meeting was assigned to a public telephone across from the defendant's home; at the time of the arrest, the defendant denied knowing Malone. All these events took place after Malone told the police he and the defendant were dealing in narcotics. They, in effect, buttressed Malone's statements as to the conspiracy. The police officer independently observed these facts as they occurred. It was these observations, and not mere presence at the scene, that supplied the necessary corroboration in Malizia.
In Brown, supra, the evidence also consisted of more than mere association. There the defendant was charged with burglary. There was a witness who testified she saw the accomplice and the defendant the morning of the crime. The accomplice testified that after the burglary, they drove to the home of one Knight and borrowed his car. Knight testified he lent them the car. A...
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People v. Sanchez
...corroborating evidence was required in the grand jury, also held that the district attorney was required to so instruct (People v. Dingle, 70 Misc.2d 840, 844 1, 335 N.Y.S.2d 233; People v. Mackey, 82 Misc.2d 766, 371 N.Y.S.2d 559; People v. Murray, 88 Misc.2d 668, 671, 388 N.Y.S.2d 848; se......
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