People v. Furman

• Decision Date: 13 July 2017
• Docket Number: 107304.
• Citation: 59 N.Y.S.3d 165,152 A.D.3d 870
• Parties: The PEOPLE of the State of New York, Respondent, v. Andrew R. FURMAN, Appellant.
• Court: New York Supreme Court — Appellate Division

152 A.D.3d 870
59 N.Y.S.3d 165

The PEOPLE of the State of New York, Respondent,
v.
Andrew R. FURMAN, Appellant.

107304.

Supreme Court, Appellate Division, Third Department, New York.

July 13, 2017.

59 N.Y.S.3d 167

Timothy S. Brennan, Schenectady, for appellant.

Kelli P. McCoski, District Attorney, Fonda (Lorraine C. Diamond of counsel), for respondent.

Before: PETERS, P.J., GARRY, ROSE, CLARK and RUMSEY, JJ.

RUMSEY, J.

Appeal from a judgment of the County Court of Montgomery County (Catena, J.), rendered December 5, 2014, upon a verdict convicting defendant of the crimes of burglary in the second degree, grand larceny in the third degree and criminal possession of stolen property in the third degree.

Defendant was indicted and charged with burglary in the second degree, grand larceny in the third degree and criminal possession of stolen property in the third degree based on allegations that he broke into a garage attached to the residence of James Phillips (hereinafter the victim), located in Montgomery County, and stole a motorcycle, which he then transported to Schenectady County and sold. Following a jury trial, defendant was convicted as charged and sentenced to concurrent prison terms of eight years, with five years of postrelease supervision, on his conviction for burglary in the second degree, 3 ½ to 7 years on his conviction of grand larceny in the third degree and 3 ½ to 7 years on his conviction of criminal possession of stolen property in the third degree. Defendant now appeals.

Initially, defendant contends that the evidence was legally insufficient to support the verdict because the testimony of Joseph Chirico, George Abraham and Marquin McLean, whom he asserts were accomplices, was not sufficiently corroborated by evidence tending to connect defendant with the charged crimes. "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" ( CPL 60.22 [1] ). "[T]o be an accomplice for corroboration purposes, the witness must somehow be criminally implicated and potentially subject to prosecution for the conduct or factual transaction related to the crime for which the defendant is on trial" ( People v. Whyte, 144 A.D.3d 1393, 1394, 42 N.Y.S.3d 370 [2016] [internal quotations marks, brackets and citations omitted] ). "The determination of accomplice

59 N.Y.S.3d 168

status depends on whether there is a showing that the witness took part in the preparation or perpetration of the crime with the intent to assist therein, or that the witness counseled, induced or encouraged the crime" ( People v. Adams, 307 A.D.2d 475, 476, 763 N.Y.S.2d 347 [2003] [internal quotation marks and citations omitted], lv. denied 1 N.Y.3d 566, 775 N.Y.S.2d 784, 807 N.E.2d 897 [2003] ). "Thus, a witness is an accomplice as a matter of law only if the jury could reasonably reach no other conclusion but that he or she participated in the offense charged or an offense based upon the same or some of the same facts or conduct which constitute the offense charged" ( People v. Whyte, 144 A.D.3d at 1394, 42 N.Y.S.3d 370 [internal quotation marks, brackets and citations omitted] ). A person is guilty of burglary in the second degree when he or she knowingly enters or remains unlawfully in a dwelling with the intent to commit a crime therein

(see Penal Law § 140.25[2] ). "To be convicted of grand larceny in the third degree and criminal possession of stolen property in the third degree, it must be established that [the] defendant stole property and knowingly possessed stolen property, the value of which exceeded $3,000" ( People v. Hardy, 57 A.D.3d 1100, 1101, 868 N.Y.S.2d 829 [2008], lv. denied 12 N.Y.3d 784, 879 N.Y.S.2d 60, 906 N.E.2d 1094 [2009] ; see Penal Law §§ 155.35[1] ; 165.50).

Chirico testified that he was a long-time acquaintance of defendant and that they were together on the night of March 14, 2013 when defendant told him that he knew where there was a motorcycle he could steal. Chirico further testified that, at defendant's request, he gave defendant a ride to a location near the victim's home at approximately 11:00 p.m. and that defendant contacted him about 20 minutes later by cell phone to ask that he meet defendant at Abraham's residence, which is approximately one-quarter mile from the victim's residence. Chirico also testified that when he arrived at Abraham's residence, he saw a motorcycle that he later identified as the victim's in the back of Abraham's pickup truck, and that he arranged for defendant to speak by cell phone with McLean, whom he knew to be a drug dealer residing in Schenectady County, about selling the motorcycle. Chirico further testified that he followed defendant and Abraham in his own car when they transported the motorcycle in Abraham's pickup truck to Schenectady County where McLean purchased the motorcycle. We find that Chirico's testimony—that he had advance knowledge of defendant's plan to steal a motorcycle, that he assisted in the perpetration of that crime by transporting defendant to the immediate vicinity of...