People v. Reome

• Decision Date: 17 June 2010
• Citation: 933 N.E.2d 186,15 N.Y.3d 188,906 N.Y.S.2d 788
• Parties: The PEOPLE of the State of New York, Respondent, v. Nathan J. REOME, Appellant.
• Court: New York Court of Appeals Court of Appeals

906 N.Y.S.2d 788

15 N.Y.3d 188

933 N.E.2d 186

The PEOPLE of the State of New York, Respondent,

v.Nathan J. REOME, Appellant.

Court of Appeals of New York.

June 17, 2010.

Frank A. Hiscock Legal Aid Society, Syracuse (Philip Rothschild of counsel), for appellant.

William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel), for respondent.

OPINION OF THE COURT

SMITH, J.

Defendant was convicted of participating in a rape with three other men. One of his alleged accomplices, Andrew Hilborn, was the only witness to identify him. The issue is whether Hilborn's testimony was corroborated as CPL 60.22(1) requires. We hold that it was.

I

The main witnesses at trial were Hilborn and the victim. Both described a rape by four men. The victim did not identify any of the four, but Hilborn said

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he participated in the crime with Scott MacDonald, Santino Buccina and defendant. MacDonald, Buccina and Hilborn were connected to the rape by DNA evidence, but defendant was not.

Hilborn and the victim gave detailed and very similar accounts. According to both, the victim was intoxicated and lost on the streets of Syracuse in the middle of the night when she got into a car with four men who agreed to help her. Hilborn testified that MacDonald was driving, Buccina was in the front passenger seat, and the victim sat in back with Hilborn on herleft and defendant on her right; the victim, without identifying the men, described the same seating arrangement.

According to both Hilborn and the victim, the following events then took place: The victim borrowed a cell phone from one of the men and tried unsuccessfully to call someone who might help her find her way. Later, she fell asleep. While she slept, the car drove out of town, and stopped in an isolated spot. The men took the victim out of the car, removed her pants and bound her with duct tape. After she woke up, they removed the duct tape, and the driver of the car (MacDonald in Hilborn's telling) threatened her with harm unless she submitted to sex.

Both witnesses' accounts continued: The victim got back in the car and was raped, in order, by the driver, the man who had sat on her right, the man from the front passenger seat and her left-hand neighbor (MacDonald, defendant, Buccina and Hilborn in Hilborn's testimony). One of the men then returned the victim's clothing and rings, and the car drove back to Syracuse, with everyone in the same seats as before. During the drive back, the victim's right-hand neighbor (defendant, according to Hilborn) took her driver's license and appeared to enter identifying information into his cell phone. Also during the drive back, the occupants of the car had a conversation about whether they had passed the Central Square rest stop. Finally, the rapists dropped their victim off in Syracuse, near a hotel.

In addition to the testimony of Hilborn and the victim, the People produced other testimony and documentary evidence. We will describe later in this opinion the parts of it we think most relevant.

The jury acquitted defendant of personally raping the victim, but convicted him on three counts of rape as an accomplice and one count of conspiracy. The Appellate Division affirmed, with two Justices dissenting (64 A.D.3d 1201, 883 N.Y.S.2d 419 [2009] ). An Appellate Division Justice granted permission to appeal to this Court (13 N.Y.3d 751, 886 N.Y.S.2d 105, 914 N.E.2d 1023 [2009] ), and we now affirm.

II

CPL 60.22(1) says: "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 "corroborative evidence" required by this statute need not be powerful in itself. "The corroborative evidence need notshow the commission of the crime; it need not show that defendant was connected with the commission of the crime. It is enough if it tends to connect the defendant with the commission of the crime in such a way as may reasonably satisfy the jury that the accomplice is telling the truth" ( People v. Dixon, 231 N.Y. 111, 116, 131 N.E. 752 [1921] [citations omitted] ). "[T]he 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,

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may serve the latter purpose" ( People v. Hudson, 51 N.Y.2d 233, 238, 433 N.Y.S.2d 1004, 414 N.E.2d 385 [1980] ). Indeed, we have said that "much less evidence and of a distinctly inferior quality is sufficient to meet the slim corroborative linkage to otherwise independently probative evidence from accomplices" ( People v. Breland, 83 N.Y.2d 286, 294, 609 N.Y.S.2d 571, 631 N.E.2d 577 [1994] ). Still, if the corroboration requirement is not met, a conviction cannot stand.

Here, as our summary above makes clear, the great bulk of Hilborn's testimony was corroborated by the victim. But the victim did not, as defendant emphasizes, corroborate one critical detail, defendant's identity-and therefore, defendant argues, her testimony was not evidence "tending to connect the defendant with the commission of [the] offense." Evidence showing that, in general, the accomplice told the truth is not enough, in defendant's view; he argues that there must be evidence independently pointing to him as the offender.

Defendant's argument finds support in People v. Hudson, where we said: "To meet the statutory mandate the corroborative evidence must be truly independent; reliance may not to any extent be placed on testimony of the accomplice for to do so would be to rely on a bootstrap" (51 N.Y.2d at 238, 433 N.Y.S.2d 1004, 414 N.E.2d 385). Hudson would require that we consider only evidence that is "independent" in the sense that it could be viewed as connecting defendant to the crime even if the accomplice testimony did not exist.

As we will explain, the rule stated in Hudson is not supported by our other cases, and we do not follow it here. Nevertheless, the distinction Hudson makes is a useful one: Evidence that is independent of the accomplice's testimony is generally entitled to more weight than evidence that is not. Thus we will perform the exercise that Hudson requires and consider what evidence would, if the accomplice's testimony did not exist, tend to connect defendant with this offense. We will then consider the importance of other evidence, not independent in the Hudson sense.

Disregarding Hilborn's testimony, the evidence in the record that might, arguably, tend to connect defendant with the crime may be summarized as follows:

-Defendant was a friend of one of the known rapists, MacDonald. MacDonald's father-in-law testified that defendant had, four or five times, visited MacDonald at his home.

-Shortly before and shortly after the rape, defendant was in frequent contact with another of the rapists, Buccina. Buccina's cell phone records showed that he called defendant or defendant called him a total of 31 times on the day before the rape, the day of the rape and the day after.

-Of those 31 calls, none occurred during the time when the victim's testimony placed the four rapists together. Dozens of calls appear on Buccina's cell phone records in the hours immediately preceding and following the rape, but none of those calls was from or to defendant.

-There is some evidence, though weak, of a physical resemblance between defendant and one of the rapists. Defendant had dirty blond hair, and none of the other three alleged offenders had that feature. A statement given by the victim shortly after the rape, and brought out before the jury, said that one of the rapists had dirty blond hair. In a later statement, the victim retracted her description, saying she had given it because she felt pressured by the police to come up with identifying details. On the other hand, the victim made a cryptic remark during her testimony which

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may suggest that the appearance of defendant and his codefendants, MacDonald and Buccina, was like that of her attackers: "I'm sitting in a room with three people that I can tell you they sat in the car."

-Defendant had a strong emotional reaction when first contacted by the police about this case. An officer went to defendant's home and said he wanted to talk about a rape investigation. According to the officer, defendant "became extremely pale, sweaty, shaky ... had to lean up against a railing."

In sum, independent evidence that may point toward defendant as one of the victim's rapists does exist-but it must be said that the evidence is unimposing. It obviously falls far short of what would be necessary to prove defendant's guilt. Whether it meets the much less demanding standard applied to corroborative evidence under CPL 60.22(1) is a close question. We find it unnecessary to answer the question, because we concludethat other corroborative evidence, though not independent in the Hudson sense, should not be disregarded.

The text of CPL 60.22(1), requiring "corroborative evidence tending to connect the defendant with the commission of such offense," need not be read, as it was in Hudson, to require that all corroboration that depends to any degree on the accomplice's testimony be ignored. The words "without reference to the accomplice's testimony" are not in the statute. There can be corroborative evidence that, read with the accomplice's testimony, makes it more likely that the defendant committed the offense, and thus tends to connect him to it.

A number of our decisions, both before and after Hudson, are inconsistent with the Hudson rule. As early as 1921, we said, in language we have repeatedly echoed since then: "Matters in themselves of seeming indifference or light trifles of the time and place of persons meeting may so harmonize with the accomplice's narrative as to have a tendency to furnish the necessary connection between defendant and the...