People v. Young

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Before THOMPSON; THOMPSON; GOLDSTEIN; GOLDSTEIN
• Citation: People v. Young, 653 N.Y.S.2d 124, 235 A.D.2d 441 (N.Y. App. Div. 1997)
• Decision Date: 13 January 1997
• Parties: The PEOPLE, etc., Respondent, v. Jeffrey YOUNG, Appellant.

Page 124

653 N.Y.S.2d 124

235 A.D.2d 441

The PEOPLE, etc., Respondent, v. Jeffrey YOUNG, Appellant.

Supreme Court, Appellate Division Second Department.

Jan. 13, 1997.

Daniel L. Greenberg, New York City (Mitchell J. Briskey and Katheryne M. Martone, of counsel), for appellant.

Charles J. Hynes, District Attorney, Brooklyn (Roseann B. MacKechnie, Ann Bordley, Victor Barall, and Caroline R. Donhauser, of counsel), for respondent.

Before THOMPSON, J.P. and PIZZUTO, GOLDSTEIN and LUCIANO, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Miller, J.), rendered June 2, 1993, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The murder for which the defendant was convicted in this case was committed by the defendant in the basement of his mother's house in Elmont, New York, where he was residing at the time. At trial, there was evidence adduced indicating that the defendant, who had been friendly with the victim up to that point, had previously committed a double murder with him. According to the prosecution's principal witness, the defendant was concerned that the victim would implicate him in the double murder and killed him in order to silence him. The witness, who also lived in this house when the murder was committed, spoke to the police after the murder and later identified the defendant as the killer.

The witness testified at trial that on May 5, 1987, the defendant told her that he intended to kill the victim. The witness did not take him seriously at the time since she believed the victim was one of the defendant's closest friends. The next morning, the witness called a taxi cab which she intended to take to visit her mother in Brooklyn. The defendant and his brother persuaded her to ride to a hardware store before continuing to Brooklyn.

Upon arriving at the hardware store, the defendant and his brother left the witness in the taxi cab, entered the store, purchased some rope, and then returned to Elmont, after which the witness proceeded to Brooklyn to her mother's home. At that time, the witness met with her brother. Apparently, the defendant had given her brother a gold ring with the victim's name on it which the defendant was attempting to locate to ensure there would be no connection made between him and the victim. Although the witness's brother had informed the defendant that the ring had been stolen, the defendant asked the witness to inquire about it and threatened to kill her brother if the ring was not returned.

When the witness returned to Elmont, the defendant, his brother, and the victim were watching television. Shortly thereafter, the defendant and his brother went into the basement. After a while, the defendant went upstairs and told the victim that he should come downstairs too since they had some "work" (meaning robberies) to discuss. As the defendant passed the witness, he told her to lock the basement door and open it only at his request. When the defendant came upstairs some time later, he informed the witness that he and his brother had killed the victim. At the defendant's request, the witness left the house with her children and thereafter called several times to ask the defendant when she could return. Subsequently, the defendant gave the witness a chain which he had taken from the victim and she pawned it at a shop in Brooklyn.

After the close of evidence the defense counsel requested that the court charge the jury that the witness was an interested witness and "an accessory, as a matter of fact, not law" [emphasis added]. Counsel provided no clarification of precisely what type of charge he was asking for and did not recite the relevant evidence on which he was relying to support his request. The Court denied the application and the jury ultimately convicted the defendant of murder in the second degree. We affirm.

The defendant contends, inter alia, that the court erred in failing to submit as a factual question for the jury to resolve the witness's alleged status as an accomplice (see, CPL 60.22[2] ). This contention is unpreserved for appellate review. By specifically requesting that the court charge the jury that the witness was an "accessory", the defense counsel failed to alert the court to the contention now raised on appeal that the witness's alleged status as an accomplice should have been submitted to the jury for resolution (see, CPL 60.22[2]; People v. Aleschus, 55 N.Y.2d 775, 447 N.Y.S.2d 243, 431 N.E.2d 968; People v. Balser, 185 A.D.2d 679, 585 N.Y.S.2d 657; People v. Graham, 111 A.D.2d 831, 490 N.Y.S.2d 253). In any event, the court properly denied the requested charge.

CPL 60.22(2) provides, in part, that an accomplice is a witness who, according to evidence adduced at trial, may reasonably be considered to have participated in the offense charged or an offense based upon the same or some of the same facts or conduct which constitute the offense charged (see, People v. Sweet, 78 N.Y.2d 263, 265, 573 N.Y.S.2d 438, 577 N.E.2d 1030; People v. Cobos, 57 N.Y.2d 798, 455 N.Y.S.2d 588, 441 N.E.2d 1106; People v. Berger, 52 N.Y.2d 214, 437 N.Y.S.2d 272, 418 N.E.2d 1291; People v. Basch, 36 N.Y.2d 154, 157, 365 N.Y.S.2d 836, 325 N.E.2d 156). Here, the evidence was insufficient to establish that the witness participated in the offense charged or an offense based upon the same or some of the same facts or conduct which constituted the offense charged (see, People v. Jones, 73 N.Y.2d 902, 903, 539 N.Y.S.2d 286, 536 N.E.2d 615; People v. Tucker, 72 N.Y.2d 849, 850, 532 N.Y.S.2d 91, 527 N.E.2d 1227; People v. Balser, supra, at 680, 585 N.Y.S.2d 657; People v. Santana, 82 A.D.2d 784, 440 N.Y.S.2d 668, affd. 55 N.Y.2d 673, 446 N.Y.S.2d 944, 431 N.E.2d 305). The defendant's assertions to the contrary rest upon speculative inferences which lack a reliable foundation in the record.

Although the defendant mentioned to the witness that he intended to kill the victim because he could no longer trust him to remain silent, the witness testified that she did not take him seriously or believe him until after he actually came up from the basement and announced that he had committed the murder. The mere fact that the defendant may have informed the witness of his desire to kill the victim does not make her a participant in the crime for the purposes of CPL 60.22. Further, the defendant's speculation that the witness could be considered an accomplice because she allegedly assisted the defendant in procuring a rope which may have been used in the murder is not supported by the record. There is no evidence in the record to establish that the witness actually assisted the defendant in purchasing the rope or that she was aware that the defendant may have planned to use it to commit a murder (see, People v. Santana, supra; cf., People v. Sweet, supra).

That the witness closed the basement door at the defendant's request prior to the murder does not create a factual issue with regard to her status as a participant in the crime committed. The record contains no evidence supporting any type of reliable inference that the act of closing a door demonstrated complicity in the crime subsequently committed in the basement or even that the witness was aware of what the defendant intended to do there. To the contrary, prior to the defendant's request, the defendant informed the witness, whose children were in the house watching television, that he and the victim would be going downstairs to discuss some "work".

The fact that the witness spoke to her brother about the victim's ring is similarly unavailing. The witness was aware that the defendant wanted to eliminate any connection between him and the victim in light of the prior murders they had committed together and that her brother's possession of the ring could possibly supply evidence of such a connection. Moreover, the defendant had threatened to kill her brother if the ring was not returned. That the witness made inquiries concerning the ring provides no evidence that she was a participant in the subsequent murder committed by the defendant. In fact, the record supports the conclusion that the witness was doing nothing more than attempting to ascertain the location of the ring to allay the defendant's concerns and to ensure that he would not injure her brother.

Although the witness took her family to the movies after the murder at the defendant's request while he disposed of the body, called several times to ascertain when she could return, and pawned the victim's chain after receiving it from the defendant, these acts might suggest, at most, that the witness was an accessory after the fact (cf., People v. Tusa, 137 A.D.2d 151, 158, 528 N.Y.S.2d 392). These acts fall short of creating any type of factual issue with respect to the witness's alleged status as a participant in the commission of the murder within the meaning of CPL 60.22 (see, People v. Jones, supra; People v. Tucker, supra; People v. Santana, supra; see also, People v. Sacco, 199 A.D.2d 288, 604 N.Y.S.2d 971; People v. Dagnone, 187 A.D.2d 604, 605, 590 N.Y.S.2d 115).

The defendant's remaining contentions are either unpreserved for appellate review or without merit.

THOMPSON, J.P., and PIZZUTO and LUCIANO, JJ., concur.

GOLDSTEIN, J., dissents and votes to reverse the judgment appealed from, on the law, and to grant a new trial, with the following memorandum:

GOLDSTEIN, Justice, dissenting.

Owing to numerous trial errors, I am constrained to vote to reverse the defendant's judgment of conviction.

The key witness for the prosecution was the defendant's girlfriend. At the trial, the defense counsel requested an instruction that the witness was "an accessory, as a matter of fact, not law", but the court denied the request, finding there was "no proof of that". Accordingly, the question of whether the witness's status as an...