People v. Moses

• Decision Date: 16 October 1984
• Citation: 482 N.Y.S.2d 228,472 N.E.2d 4,63 N.Y.2d 299
• Parties: , 472 N.E.2d 4 The PEOPLE of the State of New York, Respondent, v. Stephen MOSES, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 228

482 N.Y.S.2d 228

63 N.Y.2d 299, 472 N.E.2d 4

The PEOPLE of the State of New York, Respondent, v. Stephen MOSES, Appellant.

Court of Appeals of New York.

Oct. 16, 1984.

Stuart M. Cohen, Brooklyn, for appellant

Robert M. Morgenthau, Dist. Atty. (Debora K. Grobman and Amyjane Rettew, New York City, of counsel), for respondent.

OPINION OF THE COURT

KAYE, Judge.

Defendant's false alibi, standing alone, is in the circumstances presented insufficient to corroborate the testimony of an accomplice, the only direct evidence on which defendant was convicted of felony murder and robbery. The order of the Appellate Division, 91 A.D.2d 239, 458 N.Y.S.2d 238, should therefore be reversed, and the order of the trial court dismissing the indictment as to defendant reinstated.

On December 20, 1978, Arthur K. Watt, a young serviceman stationed at Fort Leonard Wood in Missouri, flew to New York to spend Christmas with his family. On his way home, he stopped at a bar in upper Manhattan and from there went to a vacant apartment at 2725 Eighth Avenue with other patrons of the bar, where he was robbed, stabbed and strangled. Officials discovered his partially burned body the next morning. Charged with this brutal murder, defendant proceeded to trial and rested without presenting any evidence, insisting that the prosecution had failed to corroborate the testimony of its chief witness, Lynette Baker, defendant's former girlfriend and an admitted accomplice to the crime.

According to Baker, who was also charged with the crime but testified in exchange for leniency, ¹ at a few minutes after 1:00 a.m. on December 21, 1978, she met her friend James Greer in a bar on Eighth Avenue. Also present in the bar was codefendant Cornell Alston, who was "like a brother" to her. Greer and Baker left the bar shortly before 2:00 a.m. and went to a grocery store across the street to buy cigarettes and beer. Upon emerging from the store, Baker met Alston, who was carrying a duffel bag, and she observed defendant standing behind a door in the hallway of the apartment building at 2725 Eighth Avenue.

As Baker further testified, she and Greer then parted, Greer going home and Baker walking over to defendant, who by this time had been joined by Alston and Watt. When Jerome McEachin subsequently arrived, Alston and Watt went upstairs. A few minutes later, the others followed and the group gathered in a vacant apartment on the third or fourth floor. They talked and drank beer and Watt gave Alston some money to buy marihuana. When Alston left to make the purchase, according to Baker, defendant suddenly grabbed Watt and choked him as McEachin and Baker went through his pockets. McEachin took some travelers checks and began punching Watt when he said he had no cash. Alston returned during the robbery and he and defendant brought Watt into another room, leaving Baker and McEachin in the kitchen. Baker testified she heard defendant or Alston say they had to "take him out" because he knew their names. She saw Alston stab Watt twice, and defendant and Alston then strangled Watt. After leaving the building, Baker, Alston and defendant went to Napoleon Loder's house in The Bronx. Defendant, who by this time had obtained Watt's travelers checks, gave them to Alston. Baker testified that Alston subsequently told her he had used the checks at Alexander's to purchase a snorkel jacket and turtleneck sweater. The People also called Baker's friend James Greer, who testified that he had met Baker in the bar at about 1:00 a.m. and noticed Alston, McEachin and the young soldier. While he went to the grocery store with Baker upon leaving the bar, he did not see defendant either in the bar or on the street.

Another prosecution witness, Margaret Jennings, who lived in the apartment across the hall from apartment 4S (the crime scene) testified that at 11:00 p.m. on December 20, at least three hours before the crime, she saw defendant leaving apartment 4S. She did not see him again that night. At about 1:00 a.m., she heard noises in the hall and, when she opened her door to investigate, saw Alston carrying a duffel bag. Alston said he came to get in out of the rain and would cause no trouble. Jennings' son, Melvin Herman, testified that he left the apartment after midnight to purchase cat food and, on his way out, saw two black men on the front stoop, one tall and the other short. But he could not identify defendant or Alston.

The prosecution also introduced defendant's videotaped statement, made after his arrest on January 31, 1979, in which he said that he had spent the entire evening of the crime at 2300 Lawrence Place in The Bronx, where he lived with Loder. Defendant said he was not in Manhattan at all on the day of the crime and had never been in the abandoned building. Defendant also said he had purchased Christmas decorations at Alexander's.

Finally, on the subject of the travelers checks, the People presented Grady Houston, Alston's friend and former employer who testified that he had arranged for Alston to cash three of the travelers checks at a local market, and the People introduced other checks belonging to Watt that had been cashed at Alexander's. A handwriting expert testified that the signatures on the checks were forged but he could not determine the identity of the forger.

Following the People's case, defendant moved to dismiss the indictment because the accomplice's testimony was insufficiently corroborated. The court reserved decision and defendant rested without presenting any evidence. The jury convicted both defendant and Alston of felony murder and third degree robbery.

The trial court subsequently granted the motion to dismiss, finding Baker's testimony inadequately corroborated. Commenting on Baker's credibility, Justice Dontzin "found the quality of her testimony to be appalling, contradictory and inconsistent with prior statements given to law enforcement." He "perceived her testimony to be motivated on the one hand, by a natural desire to avoid going to jail, and on the other hand, by her open hostility to Moses, who was her former lover and boy friend." To allow the guilty verdict to stand, said the court, "runs a grave risk that an innocent man has been convicted."

Though believing the issue to be "close," the Appellate Division reversed and reinstated the conviction. The majority found that the only evidence corroborating Baker's testimony was defendant's false alibi, which betrayed a consciousness of guilt. Relying primarily on People v. Deitsch, 237 N.Y. 300, 142 N.E. 670, the court concluded that this evidence was sufficient. Two concurring Justices found corroboration not only in the false alibi but also in defendant's presence at the abandoned apartment earlier in the evening, his admission that he had gone to Alexander's, Melvin Herman's testimony that he saw two men on the front stoop of the building, and James Greer's testimony concerning his date with Baker and his failure to see defendant on the street. While we agree with the majority that the only evidence arguably corroborative of Baker's testimony is the false alibi, we do not agree that it was sufficient to meet the statutory requirement of corroboration.

As this court has noted, 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; People v. Duncan, 46 N.Y.2d 74, 78-79, 412 N.Y.S.2d 833, 385 N.E.2d 572, cert. den. 442 U.S. 910, 99 S.Ct. 2823, 61 L.Ed.2d 275; see, also, People v. Dory, 59 N.Y.2d 121, 128, 463 N.Y.S.2d 753, 450 N.E.2d 673). Especially where circumstances suggest that the motivation behind an accomplice's testimony may have been to curry favor with the prosecution and receive lenient treatment, accomplice testimony lacks the inherent trustworthiness of testimony of a disinterested witness (People v. Daniels, 37 N.Y.2d 624, 629, 376 N.Y.S.2d 436, 339 N.E.2d 139; People v. Kress, 284 N.Y. 452, 459, 31 N.E.2d 898). Accordingly, accomplice testimony is regarded with "the utmost caution" (People v. Berger, 52 N.Y.2d 214, 219, 437 N.Y.S.2d 272, 418 N.E.2d 1291, supra ). Particular scrutiny is appropriate here, where the accomplice testified under a promise of leniency and where the Trial Judge, who had the advantage of observing the witness, noted the inconsistency of her testimony and her hostility toward her former boyfriend, and expressed his fear that an innocent man stood convicted.

CPL 60.22 (subd. 1) prohibits a conviction "upon the testimony of an accomplice unsupported by corroborative evidence tending to connect the defendant with the commission" of the crime. 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, supra ). It need only "connect the defendant with the crime in such a way that the jury may be reasonably satisfied that the accomplice is telling the truth" (People v. Daniels, 37 N.Y.2d 624, 630, 376 N.Y.S.2d 436, 339 N.E.2d 139, supra ). 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, 117, 131 N.E. 752). But where the corroboration has no "real tendency to it is insufficient" (People v. Kress, 284 N.Y. 452, 460, 31 N.E.2d 898, supra; People v. Wasserman, 46 A.D.2d 915, 362 N.Y.S.2d 868).

On this appeal, the People point to three evidentiary bases as satisfying the requirement for corroboration: defendant's admitted visit to Alexander's, his presence in the abandoned apartment three or more hours before the crime, and his false alibi. ²

Defendant's admission that he went to Alexander's neither constitutes nor contributes to the requisite corroboration. First, the transcript of defendant's videotaped statement does not support the...