People v. Wasserman

• Decision Date: 23 December 1974
• Citation: 362 N.Y.S.2d 868,46 A.D.2d 915
• Parties: The PEOPLE, etc., Respondent, v. Ronald Jeff WASSERMAN, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 868

362 N.Y.S.2d 868

46 A.D.2d 915

The PEOPLE, etc., Respondent, v. Ronald Jeff WASSERMAN, Appellant.

Supreme Court, Appellate Division, Second Department.

Dec. 23, 1974.

Evseroff & Sonenshine, Brooklyn (William Sonenshine, Brooklyn, of counsel), for appellant.

Nicholas Ferraro, Dist. Atty., Kew Gardens (Roberta Dunlop, Kew Gardens, of counsel), for respondent.

Before SHAPIRO, Acting P.J., and COHALAN, CHRIST, BENJAMIN and BRENNAN, JJ.

MEMORANDUM BY THE COURT.

Appeal by defendant from a judgment of the Supreme Court, Queens County, rendered March 22, 1972, convicting him of criminal possession of a dangerous drug in the third degree, upon a jury verdict, and imposing sentence.

Judgment reversed, on the law, and indictment dismissed as to this appellant.

Defendant and one Lewis Colten were indicted for the crime of criminal possession of a dangerous drug in the third degree in violation of former section 220.20 of the Penal Law. At defendant's trial, the People's primary witness was Colten, the courier who had brought the marijuana from Kentucky to New York by airplane. Colten, who admitted to a prior marijuana-related conviction, testified that instructions for delivery of the marijuana had been given to him by two persons in Kentucky, where he, Colten, attended college. He was allowed to state, over objection, that these persons had told him that defendant would be present at LaGuardia Airport in New York City to receive the marijuana. He had never met defendant, but he was told that defendant would tell him that he knew a mutual friend, one John Kostick. According to Colten, defendant met him as came off the plane and in subsequent conversation asked whether Colten had encountered any problems in bringing the marijuana with him. This testimony is the only evidence given by Colten which connects defendant with the crime.

Defendant had been driven to the airport by Kostick and, according to Colten, Kostick was in the airport building itself for a short time. It is apparent, however, that Kostick was not present during any of the material events which took place on the day in question. That Kostick was involved in the initial scheme to transport the marijuana was testified to by Colten. Also present at the airport was defendant's girlfriend, who had accompanied defendant and Kostick.

When Colten went to claim his baggage, the two pieces of luggage with the marijuana in them were not at the baggage arrival station. Colten put in claim for lost baggage and then, because he had to go elsewhere to ensure connections for his return trip to Kentucky, left the baggage stubs with defendant's girlfriend, a person who has in no way been implicated in the crime.

The baggage was located by airline personnel. In checking Colten's description of the contents as being books and papers, one of the baggage service agents noted a torn green bag in one of the pieces of luggage. The airline police were summoned. After the police ascertained that the baggage probably contained marijuana, they closed the baggage and brought it out to where Colten, defendant, and defendant's girlfriend were waiting. When Colten identified the luggage as his, and after further discussion in which Colten reaffirmed his previous statement that the contents of the luggage were books and papers, the police told him to take the luggage. Colten then took one piece, and defendant the other. They were then immediately placed under arrest.

All of the prosecution witnesses who were present stated that no one but Colten had claimed ownership of the luggage and that defendant's participation had been merely to ask why, if the baggage was in fact Colten's, it was not given to him.

Defendant and his girlfriend both testified that he went to the airport with Kostick at the latter's request when he said he was meeting a friend there.

Since the court charged the jury, as is conceded, that Colten was an accomplice as a matter of law, his testimony could not support a conviction without sufficient corroboration (Code Crim.Pro., § 399). The People rely upon defendant's presence at the airport and, more particularly, in the baggage area, to supply the necessary corroboration. The People would also find corroboration in defendant's concern over the lost baggage and his interest in having it returned. However, reliance upon these facts to constitute the requisite corroboration is misplaced.

The required corroboration of accomplice testimony may be direct or circumstantial (People v. Mullens, 292 N.Y. 408, 55 N.E.2d 479; People v. Brown, 30 A.D.2d 279, 291 N.Y.S.2d 573) and is sufficient '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, 754). However, the corroborative evidence must do more than just show that the crime was committed; it must also tend to show that the defendant was implicated in its commission (People v. Nitzberg, 287 N.Y. 183, 191--192, 38 N.E.2d 490, 494--495). The purported corroborative testimony is insufficient if it merely tends to establish the credibility of the accomplice, since the statute (Code Crim.Pro., § 399) does not permit a conviction solely on the testimony of the accomplice just because his testimony appears to be credible. The corroborative evidence, to be legally effective, must come from an independent showing of some material fact tending to connect the defendant with the crime (People v. Hooghkerk, 96 N.Y. 149, 162; People v. Everhardt, 104 N.Y. 591, 11 N.E. 62; People v. Taleisnik, 225 N.Y. 486, 122 N.E. 615; People v. Reddy, 261 N.Y. 479, 185 N.E. 705; People v. Ogle, 104 N.Y. 511, 11 N.E. 53; People v. O'Farrell, 175 N.Y. 323, 67 N.E. 588). Although it need not, in and of itself, establish that the defendant committed the crime, its value as corroborative evidence may not depend for its weight and probative value upon the accomplice testimony. If the corroborative evidence, standing alone, has no real tendency to connect the defendant with the commission of the crime, it is insufficient (People v....