People v. Konigsberg

Decision Date12 May 1988
Citation137 A.D.2d 142,529 N.Y.S.2d 195
PartiesThe PEOPLE of the State of New York, Respondent, v. Harold KONIGSBERG, Appellant.
CourtNew York Supreme Court — Appellate Division

Mark Lemle Amsterdam (J. Jeffrey Weisenfeld, New York City, of counsel), for appellant.

Michael J. Kavanagh, Dist. Atty., Kingston, for respondent.


MERCURE, Justice.

Anthony Castellito disappeared abruptly in 1961 and, although his body was never found, defendant was indicted along with two codefendants on a charge of murder in the first degree (see, former Penal Law of 1909 § 1044). At a joint trial with codefendant Anthony Provenzano, defendant was convicted of murder in the first degree and sentenced by County Court to life imprisonment, with no provision being made for such sentence to run concurrently or consecutively to the prison term defendant was then serving. Initially reversed by this court for errors committed during jury selection ( see, People v. Provenzano, 70 A.D.2d 960, 417 N.Y.S.2d 317), both judgments were reinstated by the Court of Appeals and the case remanded to this court for determination of issues not initially considered (see, People v. Provenzano, 50 N.Y.2d 420, 429 N.Y.S.2d 562, 407 N.E.2d 408). On remand, Provenzano's conviction was unanimously affirmed, but defendant was granted a new trial because the defense had been prohibited from using certain bad acts to impeach the credibility of the prosecution's corroboration witness ( see, People v. Provenzano, 79 A.D.2d 811, 435 N.Y.S.2d 369). As adduced at defendant's second trial, the facts surrounding the murder were substantially the same as found by this court in 1980 ( id., at 812-813, 435 N.Y.S.2d 369).

During the second trial, someone representing himself to be a correction officer at the facility holding defendant made phone calls to six jurors and two alternates. The other jurors were either out at that time, had an unlisted number, a number listed in someone else's name or a disconnected phone. All jurors contacted were told they should find defendant guilty, and they immediately reported such phone calls to County Court. At the completion of his second trial, defendant was again convicted of murder in the first degree under former Penal Law of 1909 § 1044 and sentenced to life imprisonment, with County Court expressly ruling that the sentence would run consecutively to a prison term defendant was then serving. Defendant, who appeared pro se at trial, then moved to have his sentence redetermined since, he argued, the imposition of consecutive sentences after his second trial penalized him with a harsher sentence for bringing his appeal because no explicit determination that the sentence was consecutive had been made at the first trial. County Court denied the motion. A Justice of this court granted permission to appeal the adverse resentencing determination and defendant brings the instant appeal.

Defendant's principal contention on this appeal is that the People failed to produce sufficient evidence to corroborate his accomplice's testimony. We disagree. By statute, a defendant may not be convicted solely upon accomplice testimony. It must be corroborated by evidence "tending to connect the defendant with the commission of such offense" (CPL 60.22[1] ). The law views the testimony of an accomplice with a "suspicious eye" ( People v. Berger, 52 N.Y.2d 214, 218, 437 N.Y.S.2d 272, 418 N.E.2d 1291; see, People v. Dory, 59 N.Y.2d 121, 128, 463 N.Y.S.2d 753, 450 N.E.2d 673), especially where there is a possibility that the testimony is given to curry favor with the prosecution, and even more particularly when the testimony is given under a promise of leniency ( see, People v. Moses, 63 N.Y.2d 299, 305-306, 482 N.Y.S.2d 228, 472 N.E.2d 4). The corroboration must consist of "evidence from an independent source of some material fact tending to show that defendant was implicated in the crime" ( People v. Kress, 284 N.Y. 452, 460, 31 N.E.2d 898). This does not mean, however, that the corroborative evidence must prove that defendant committed the crime ( People v. Glasper, 52 N.Y.2d 970, 971, 438 N.Y.S.2d 282, 420 N.E.2d 80; People v. Cunningham, 48 N.Y.2d 938, 940, 425 N.Y.S.2d 59, 401 N.E.2d 182). It is sufficient if the corroborative proof connects defendant with the crime in such a way that the jury may be reasonably satisfied that the accomplice's testimony is truthful ( People v. Daniels, 37 N.Y.2d 624, 630, 376 N.Y.S.2d 436, 339 N.E.2d 139; see, People v. Springer, 127 A.D.2d 250, 255-256, 514 N.Y.S.2d 555). Moreover, the elements of independent proof are to be considered cumulatively and not in isolation ( see, People v. Hudson, 51 N.Y.2d 233, 240, 433 N.Y.S.2d 1004, 414 N.E.2d 385), for matters of seeming insignificance "may so harmonize with the accomplice's narrative as to have a tendency to furnish the necessary connection between defendant and the crime" ( People v. Dixon, 231 N.Y. 111, 116-117, 131 N.E. 752).

Initially, since defendant's new trial demands a de novo review of evidence therein produced, we reject the People's argument that this court has already passed upon the sufficiency of the corroboration. Nevertheless, measured by the foregoing criteria, we are of the view that there was sufficient corroboration of Salvatore Sinno's testimony to sustain the conviction. Viewing the evidence in a light most favorable to the People (see, People v. Smith, 55 N.Y.2d 945, 947, 449 N.Y.S.2d 177, 434 N.E.2d 246), John Nadratowski's testimony provides a sufficient basis for the jury to evaluate Sinno's veracity. The account of a farmer happening upon the conspirator's automobile, the sounds of shoveling as they dug a grave, the license plate number of the white Chevrolet given to the State Police weeks after the June 1961 murder, as well as Nadratowski's positive identification of Sinno and defendant made from photographs at that time, amply supply corroboration of the details Sinno testified to 21 years later, particularly since Sinno and Nadratowski had no subsequent contact. The evidence cumulatively was sufficient to connect defendant to the commission of the crime and satisfy the jury that the accomplice was telling the truth ( see, People v. Shelby, 111 A.D.2d 1038, 491 N.Y.S.2d 195; People v. Van Skiver, 111 A.D.2d 1032, 491 N.Y.S.2d 191).

We find similarly unavailing defendant's argument that County Court's corroboration charge was in error. Defendant argues that County Court should have specifically instructed the jury that the corroborating evidence "must be truly independent of the accomplice testimony and may not rely upon such testimony to invest it with weight and probative value" ( People v. Lawson, 112 A.D.2d 457, 459, 491 N.Y.S.2d 197). Since defendant failed to preserve such issue for appellate review (see, CPL 470.05[2]; People v. Patterson, 39 N.Y.2d 288, 294, 383 N.Y.S.2d 573, 347 N.E.2d 898, affd. 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281), and since the charge as given does not fall within the narrow statutory or constitutional exception allowing appellate review ( see, People v. Thomas, 50 N.Y.2d 467, 471, 429 N.Y.S.2d 584, 407 N.E.2d 430), no appeal lies. Nevertheless, we have exercised our discretion in the interest of justice (see, CPL 470.15[3][c]; People v. Robinson, 36 N.Y.2d 224, 228, 367 N.Y.S.2d 208, 326 N.E.2d 784, remittitur amended 37 N.Y.2d 784, 375 N.Y.S.2d 100, 337 N.E.2d 607) and reviewed the challenged instructions. In our view, County Court's recitation of the law on the corroboration of accomplice testimony was adequate for it accurately stated the "material legal principles applicable to the particular case" (CPL 300.10[2] ), and it informed the jury that it was for them to decide whether the corroborative testimony was sufficient ( see, People v. Tyler, 111 A.D.2d 528, 530, 489 N.Y.S.2d 619) and whether, if true, it tended to connect defendant with the commission of the crime ( see, People v. Davila, 108 A.D.2d 108, 115, 488 N.Y.S.2d 409).

Finally, with regard to the charge, defendant argues that County Court usurped the jury's function by passing upon the sufficiency of the corroborative testimony when it charged "[t]he testimony of John Nadratowski, if it is believed by you, may constitute corroborative evidence in this case" (emphasis supplied). Once again, this issue has not been preserved for appellate review (see, CPL 470.05[2] ). In any event, in our view, County Court's instructions did not amount to an exhortation that Nadratowski's testimony was sufficient to satisfy the corroboration requirement. The ambiguous "may" is immediately preceded by express instructions for the jury to determine both credibility and connection with the crime. The charge clearly left the question of credibility and corroboration to the jury ( see, People v. Daniels, 37 N.Y.2d 624, 630, 376 N.Y.S.2d 436, 339 N.E.2d 139, supra ). The case of People v. Stafford, 57 A.D.2d 965, 395 N.Y.S.2d 69), relied upon by defendant, is distinguishable. There, reversal was required because of the court's bold directive: "if you find * * * defendant was with Henry * * * that would be sufficient to corroborate" ( id., at 966, 395 N.Y.S.2d 69).

Defendant next argues that the prosecutor's summation was unduly prejudicial, contending that a variety of errors deprived him of a right to a fair trial. We disagree. Although the prosecutor first struck a decidedly emotional tone, thereafter, except for a few scattered references to rage, he generally stayed within the four corners of the evidence ( People v. Ashwal, 39 N.Y.2d 105, 109, 383 N.Y.S.2d 204, 347 N.E.2d 564; see, People v. Morgan, 66 N.Y.2d 255, 496 N.Y.S.2d 401, 487 N.E.2d 258) and defendant has not demonstrated "a flagrant and pervasive pattern of prosecutorial misconduct" warranting a new trial ( People v. Demming, 116 A.D.2d 886, 887, 498 N.Y.S.2d 203; see, People v. Allen, 129 A.D.2d 717...

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