People v. Hudson
| Decision Date | 18 November 1980 |
| Citation | 51 N.Y.2d 233,433 N.Y.S.2d 1004,414 N.E.2d 385 |
| Parties | , 414 N.E.2d 385 The PEOPLE of the State of New York, Respondent, v. Timothy HUDSON, Appellant. |
| Court | New York Court of Appeals Court of Appeals |
There is in this record, after excising all evidence which depends for its probative worth and reliance on testimony of the accomplices, sufficient independent proof to meet the requirements for corroboration under CPL 60.22 (subd. 1).
On June 6, 1977, about 10:00 p. m., defendant entered O'Connor's grocery store on Judson Street in Albany, New York. He had been in the store previously and was known to James O'Connor, the proprietor. After he had been on the premises 5 or 10 minutes defendant asked where the toilet paper was. At the time of his inquiry he was standing in the rear of the store, about two feet from the counter on which were stacked 8 or 10 packages of toilet paper, four rolls to a package. O'Connor, offering to get the toilet paper, came around the checkout counter and proceeded to the back of the store where defendant was standing and the toilet paper was located. Defendant took a roll of the toilet paper and followed O'Connor back to the front of the store.
Just before O'Connor reached the checkout counter, Roger Lee Nelson, who was not known to O'Connor, stopped him with a gun and announced, "This is a stickup." Defendant exclaimed, "Oh, he's got a gun, he's got a gun", and addressing Nelson added, Thereupon Nelson ordered defendant to take out O'Connor's wallet. Defendant reached into O'Connor's right rear pocket and removed the wallet. O'Connor grabbed the wallet from defendant and Nelson took it from O'Connor. In the meantime Henry Edge who accompanied Nelson and was also unknown to O'Connor had gone behind the checkout counter and emptied the cash register. Nelson and Edge then ran out of the store. There were some teen-agers outside. As two of them started after the robbers, defendant who had come outside cautioned them, O'Connor went to the call box where he called the police who immediately came to the store.
After the police had completed their on-the-scene investigation at the grocery store, they explained to defendant that, inasmuch as he was a witness to the crime, they would like to take a written statement from him as to what he had observed. Defendant offered to come down to the police station if the police would pick him up at 9 Wilkins Avenue where he said that he lived. About 11:15 p. m. the police went to 9 Wilkins Avenue and found defendant who accompanied them to the police station where he gave a written statement. Both defendant and O'Connor, who had also given a statement, viewed police department photographs in an attempt to identify the two robbers. Neither was able to make an identification although pictures of Nelson and Edge were included in the photographs displayed.
On July 1, 1977 the police arrested Nelson and Edge on an unrelated charge. As Nelson was being booked he was informed that he, Edge and defendant had been implicated in the robbery of O'Connor's Grocery Store, whereupon Nelson asked to make a statement. After learning that Nelson had given a statement, the next day Edge also expressed a desire to make a statement, regarding the O'Connor robbery. Nelson and Edge stated in substance that they, with defendant, had planned the robbery of the grocery store at defendant's cousin's house at 9 Wilkins Avenue; that their plan called for defendant to enter the store first to divert O'Connor, who had some trouble with his eyes, by calling him to the rear of the store to get some toilet paper and for Nelson, with a gun furnished by defendant, and Edge then to enter the store; that Edge was to take the money out of the cash register while Nelson held the gun; that after the robbery had been completed all three returned to defendant's cousin's house at 9 Wilkins Avenue where the proceeds of the robbery were divided, and Nelson and Edge then left.
After a jury trial at which defendant's statement and the statements of Nelson and Edge were received in evidence and both Nelson and Edge testified, defendant was found guilty of one count of robbery in the second degree and acquitted of another. The Appellate Division affirmed the judgment of conviction, 70 A.D.2d 740, 416 N.Y.S.2d 899.
Only one issue of any substance is tendered on the appeal to our court. Defendant contends that the inculpatory testimony of Nelson and Edge, concededly accomplices in the criminal transaction as the trial court charged, was not sufficiently corroborated by independent proof to meet the requirements of CPL 60.22 (subd. 1), which provides: "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 People rely for such corroborative evidence on three items of proof: the presence and conduct of defendant in the grocery store, what is characterized as defendant's deliberate failure to identify the photographs of Nelson and Edge, and defendant's return to 9 Wilkins Avenue and his participation in the division of the robbery spoils.
The mandate of the statute is that there shall be evidence, in addition to that furnished by the accomplice, "tending to connect the defendant with the commission" of the crime. And the role of the additional evidence is only to connect the defendant with the commission of the crime, not to prove that he committed it. The accomplice testimony, if credited by the jury, may serve the latter purpose, provided that there is other proof to satisfy the "tending-to-connect" requirement. In the present case our attention is focused on the sufficiency of the nonaccomplice evidence.
To meet the statutory mandate the corroborative evidence must be truly independent; reliance may...
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