People v. Lawson

• Decision Date: 03 July 1985
• Citation: 112 A.D.2d 457,491 N.Y.S.2d 197
• Parties: The PEOPLE of the State of New York, Respondent, v. Robin LAWSON, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 197

491 N.Y.S.2d 197

112 A.D.2d 457

The PEOPLE of the State of New York, Respondent, v. Robin LAWSON, Appellant.

Supreme Court, Appellate Division,

Third Department.

July 3, 1985.

William Gray, Elmira, for appellant.

James T. Hayden, Chemung County Dist. Atty., Elmira, for respondent.

Before MAHONEY, P.J., and MIKOLL, HARVEY, CASEY and LEVINE, JJ.

PER CURIAM.

Appeal from a judgment of the County Court of Chemung County, rendered April 16, 1981, upon a verdict convicting defendant of the crime of robbery in the first degree.

Defendant was convicted of the robbery of the Glider Cash and Carry Store in the City of Elmira, which occurred July 27, 1979 at 9:20 P.M. At that time, according to the duty clerk, a person wearing a black mask and poncho and carrying a rifle entered the store and took $680 from the cash register. Defendant and two others, Stephen Spahalski ^* and Ronald Jones, were indicted for the crime. At defendant's trial, Jones testified for the prosecution and stated that defendant was the driver of the getaway car. Two other witnesses, Elaine Tenny and Susan Loomis, placed defendant in the company of Jones and Spahalski just before the commission of the crime and with Jones afterwards. Defendant's thumbprint was found on the driver's side vent window of the car that was used. Defendant also testified and admitted being with Jones and Spahalski before the crime and with Jones later, but disavowed any knowledge of the commission of the crime, claiming that he had gone to a bar to await Jones' return so they could go to a county fair. Defendant further admitted that he had driven the getaway car on other occasions, but denied driving it at the time of the robbery. Defendant was convicted of robbery in the first degree as charged and was sentenced to an indeterminate prison term of 12 1/2 to 25 years, the maximum sentence for a class B felony.

On this appeal, defendant initially contends that he was deprived of a speedy trial (CPL 30.30). Defendant was indicted on March 27, 1980. His motion addressed to the denial of a speedy trial was made March 20, 1981 and denied by County Court. Under CPL 30.30, such motion must be granted when the prosecutor is not ready for trial within six months of a criminal action in which the defendant is accused of a felony (CPL 30.30[1][a] ). When a defendant demonstrates that the statutory time limit has been exceeded, the burden is on the People to show that the time in excess of six months is excludable under CPL 30.30 (People v. Berkowitz, 50 N.Y.2d 333, 349, 428 N.Y.S.2d 927, 406 N.E.2d 783), or that the People were ready within six months of the commencement of the proceeding (People v. Thill, 75 A.D.2d 709, 427 N.Y.S.2d 125, revd. on other grounds, 52 N.Y.2d 1020, 438 N.Y.S.2d 297, 420 N.E.2d 95, cert. denied 454 U.S. 829, 102 S.Ct. 122, 70 L.Ed.2d 105). To show the prosecution's readiness, there must be a contemporaneous communication in court on the record that the People were ready (People v. Brothers, 50 N.Y.2d 413, 429 N.Y.S.2d 558, 407 N.E.2d 405).

In this case, the prosecution stated at a pretrial hearing on May 2, 1980:

As soon as you (the court) decide the motion on the Grand Jury minutes [and] I provide a bill of particulars the case will be ready for trial.

The bill of particulars was delivered to defendant on May 7, 1980. However, County Court did not decide the motion addressed to the sufficiency of the Grand Jury minutes until January 7, 1981. On January 8, 1981, the People filed a statement of readiness. Since the Grand Jury minutes were apparently delivered to County Court on May 2, 1980, the period from that date until the court's decision on January 7, 1981 is not attributable to the People (CPL 30.30(4)[d]; People v. Gates, 70 A.D.2d 734, 416 N.Y.S.2d 870), and the prosecution would be timely even if the January 8, 1981 date is accepted as the date of readiness. We believe, however, that the statement of May 2, 1980, quoted above, was a sufficient communication of readiness conditioned, as it was, only on the service of a bill of particulars (served May 7, 1980) and County Court's decision on the motion addressed to the Grand Jury minutes (apparently submitted to the court May 2, 1980).

Defendant also contends that the delay, or at least some of it, occasioned by the transcription of the testimony of prosecution witnesses in the prior trial of Spahalski, should be attributable to the People. Since this transcript of testimony was prepared by the County Court reporter over whom the prosecution had no control, and considering that the demand therefor was made by defendant, we decline to attribute such delay to the People. Defendant's trial was, therefore, timely under CPL 30.30. Nor was defendant's constitutional right to a speedy trial violated (see CPL 30.20). A consideration of the five factors set forth in People v. Watts, 57 N.Y.2d 299, 456 N.Y.S.2d 677, 442 N.E.2d 1188, and People v. Taranovich, 37 N.Y.2d 442, 373 N.Y.S.2d 79, 335 N.E.2d 303, leads to this conclusion, for the delay was not occasioned by the prosecution and defendant's incarceration at Elmira Correctional Facility on an unrelated charge prevents a showing of prejudice arising from the delay.

Defendant also contends that, by testifying at Spahalski's trial, he received transactional immunity. This claim is without merit since it is apparent that he was given transactional immunity with regard to an August 1979 robbery of a gas station and not the conduct which was the subject of this indictment.

We now turn to the issue of witness corroboration. We hold that while we find no impropriety in the prosecution's questioning of a police officer to establish the reliability of Jones' testimony, it is, nevertheless, our view that the testimony of Jones, who was indicted for the same crime, as well as the testimony of Tenny and Loomis, nonaccomplice witnesses, created a factual pattern that required incisive instruction in County Court's charge to enable the jury to conclude that the testimony of accomplice Jones was sufficiently corroborated. The court's charge was inadequate for that purpose (see People v. Fiore, 12 N.Y.2d 188, 201-203, 237 N.Y.S.2d 698, 188 N.E.2d 130).

Whether the testimony of an accomplice is sufficiently corroborated is a question of fact for the jury (People v. Goldfeld, 60 A.D.2d 1, 5, 400 N.Y.S.2d 229). The purpose of such corroboration is not to prove that the defendant committed the crime, but only to connect the defendant with its commission (see People v. Smith, 55 N.Y.2d 945, 946, 449 N.Y.S.2d 177, 434 N.E.2d 246; People v. Glasper, 52 N.Y.2d 970, 971, 438 N.Y.S.2d 282, 420 N.E.2d 80). Such 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. Hudson, 51 N.Y.2d 233, 238, 433 N.Y.S.2d 1004, 414 N.E.2d 385). Here, much of the purported corroboration evidence, in the form of testimony by Tenny and Loomis, merely supported the credibility of Jones, who had testified that defendant had driven the car used in the robbery, but did not tend to connect defendant with the crime.

Next, the testimony of Tenny and Loomis was suspect as corroborative proof, particularly with respect to the time of the commission of the robbery and the time that the two witnesses saw defendant with Jones after the robbery, since both Tenny and Loomis were impermissibly allowed to refresh their recollection by use of prior testimony. After reading her prior testimony and in response to a question as to where she had picked up defendant and Jones on the night of the robbery, Tenny testified that "according to this [prior testimony] I picked them up at their house. In my own mind I don't remember." Witness Loomis made similar statements during her trial testimony that "according to her prior testimony" she and Tenny had picked up Jones and defendant at 10:30 P.M.

Based on this testimony, County Court charged:

The testimony of a non-accomplice * * * that the...