People v McCullough

[*1] People v McCullough 2008 NY Slip Op 52522(U) [21 Misc 3d 1146(A)] Decided on November 19, 2008 Supreme Court, Monroe County Egan, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 19, 2008
Supreme Court, Monroe County

People of the State of New York, Plaintiff,

against

Larry H. McCullough STEVEN A. SCOTT, Defendants.



716/08



APPEARANCES:

MICHAEL C. GREEN,

DISTRICT ATTORNEY

V.S. Vilkuh, Esq.

Attorney for People

LARRY H. MCCULLOUGH

By: Frederick P. Lester, Esq.

David D. Egan, J.

Defendant McCullough moves this Court pursuant to Criminal Procedure Law (hereinafter, "CPL") §§210.25, 200 and 60.22 for dismissal of Counts One, Two and Three of the indictment on the grounds that the People failed to corroborate the accomplice's testimony before the grand jury. Upon the application of the Defendant and pursuant to Criminal Procedure Law § 210.30(3), the Court has reviewed the grand jury minutes. Defendant McCullough also moves for severance at trial. At argument of the omnibus motions in this case, the Court indicated that it would reserve decision on the foregoing issues. The within opinion is the Court's decision on the reserved issues.

DISCUSSION

A.) Motion to Dismiss Indictment and for Inspection of Minutes

Count One of the indictment charges both Defendants with Burglary in the Third Degree (PL 140.20 and 20) for an act allegedly occurring on July 12, 2008 in the Town of Penfield. Count Two charges Defendants with Grand Larceny in the Third Degree (PL 155.35 and 20) for an act allegedly [*2]occurring on July 12, 2008 in the County of Monroe. Count Three charges Defendants with Criminal Mischief in the Fourth Degree (PL 145.00 and 20) for an act allegedly occurring on July 12, 2008 in the County of Monroe.

Criminal Procedure Law §60.22 (1) provides that a defendant may not be convicted of an offense based solely upon the testimony of an accomplice unsupported by corroborative evidence tending to connect the defendant with the commission of the offense. As an initial matter, the accomplice corroboration requirement applies with equal force to grand jury proceedings. People v. Cilento, 2 NY2d 55 (1956); Matter of Ethan S., 28 AD3d 1165 (4th Dept. 2006); People v. Amell, 277 AD2d 1052 (4th Dept. 2000).

The corroborative evidence required for CPL §60.22(1) purposes need not establish all of the elements of the offense. People v. Breland, 83 NY2d 286, 292 (1994). "Seemingly insignificant matters may harmonize with the accomplice's narrative so as to provide the necessary corroboration." Id. at 292-293 (citations omitted). New York's accomplice corroboration rule requires only enough non-accomplice evidence to assure that the accomplice has offered credible probative evidence. Id. at 293. The "corroborative glue does not require independent proof of the elements of the crime to sustain a conviction; it just has to bind the accomplice evidence to the defendant." Id.

For the reasons set forth below, the Court grants the Defendant's motion to dismiss the indictment pursuant to CPL §210.30 on the grounds that the jury was not instructed that the testimony of the accomplice, which exclusively linked this Defendant to these crimes, was required to be corroborated under CPL §60.22. The Court, however, grants leave to the People to re-present those charges to another grand jury, and to file any subsequent indictment within thirty (30) days from the date of this order.

Section 190.30 of the CPL (entitled, "Grand Jury; rules of evidence"), subd. 7, states that "[w]henever it is provided in article sixty that a court presiding at a jury trial must instruct the jury with respect to the significance, legal effect or evaluation of evidence, the district attorney, in an equivalent situation in a grand jury proceeding, may so instruct the grand jury."Moreover, an indictment is not authorized when based upon evidence "not legally sufficient when corroboration that would be required, as a matter of law, to sustain a conviction for such offense is absent . . . ." CPL §190.65 (1)(a).

Here the proof against Defendant McCullough on Counts One through Three consisted almost exclusively of the co-defendant's testimony.On review of the testimony it is abundantly clear that Defendant Scott was a knowing participant in the above-detailed crimes. Based upon his participation in these offenses, Scott would certainly have been seen by the grand jury as an "accomplice" under CPL §60.22(2)(a).

While the Court is fully aware that a grand jury need not be instructed to the same degree of precision that is required when a trial jury is instructed on the law (People v. McLaurin, 196 AD2d 511 [Second Dept., 1993]), it cannot be said that the prosecution's failure to give a "corroboration" charge would not have changed the vote in the jury to indict Defendant McCullough on the three counts at issue. Setting Scott's testimony aside, the remaining proof in the grand jury mainly consisted of evidence of monetary loss and property damage, as well as some locations, times and dates. There was some evidence of two figures being seen and chased by police at the bingo hall burglary scene, but nothing which specifically linked Defendant McCullough. Likewise, although testimony [*3]concerning closed circuit surveillance video showed two figures involved in the other burglary scene at Sully's Corner, there was nothing more linking Defendant McCullough to this particular crime. Additionally, it is doubtful that the testimony about the video adduced by the prosecutor was even admissible since the testimony was not the "best evidence" of the contents of the tape and no foundation had been laid for secondary, parol evidence. Cf., People v. Cyrus, 48 AD3d 150, 159 (1st Dept. 2007) leave denied 10 NY3d 763 (2008).

Though the corroboration required under CPL §60.22(1) is "minimal" (People v. Jones, 85 NY2d 823, 825 [1995]), it cannot be said that such evidence, in the absence of a proper instruction, would have led this grand jury inevitably to an indictment. More to the point, the independent evidence adduced by the People cannot clearly be said to "harmonize[s] with the accomplice's narrative so as to provide the necessary corroboration." People v. Breland, supra, at 292-293. Though corroborating evidence need not be a positive identification (Id at 293), once again, it cannot be said that this grand jury would have given the required corroborative weight to the secondary evidence. No other evidence was presented tending to connect this Defendant to the crimes at issue.

Accordingly, the Court finds that in the absence of a "corroboration of accomplice testimony" charge before the grand jury, the evidence before the grand jury was not legally sufficient to establish the offenses charged, or any lesser included offenses. CPL § 210.20 (1) (b). Therefore, the first three counts of the indictment are dismissed without prejudice, and the People are granted leave to re-present those charges to another grand jury, and to file any subsequent indictment within thirty (30) days from the date of this order.

B.) Motion for Severance

Citing Bruton v. United States (391 US 123 [1968]), the Defendant also moves for trial severance pursuant to CPL §200.40(1). That section provides generally that a court may order severance of defendants joined in an indictment if there is a showing of undue prejudice and upon "good cause". A motion for severance is addressed to the sound discretion of the court. People v. Lane, 56 NY2d 1, 7-8 (1982).

In raising the "Bruton" problem, Defendant McCullough claims that the admission at trial of the co-defendant's statement implicating the Defendant will unduly prejudice him insofar as the statement cannot be reasonably redacted to omit references to the Defendant. In Bruton, the United States Supreme Court held that, in the instance where the co-defendant's statement cannot be reasonably redacted, admission at trial of the statement is unduly prejudicial as a matter of law. Id. Public policy favors joinder of indictments for trial "because it expedites the judicial process, reduces court congestion, and avoids the necessity of recalling witnesses." People v. Mahboubian, 74 NY2d 174 (1989). There is no claim by the Defendant that antagonistic defenses requires severance. Id. at 183-184.

The People oppose severance and argue that there is no proof by Defendant that the People only intend to offer the statement of the co-defendant, thus creating a potential "Bruton" problem. The People claim that Defendant's "assumption" that the co-defendant will not testify "unfounded". The People also claim that other evidence exists which will negate undue prejudice.

In the matter at bar, the Court will exercise its discretion to order severance. The Court finds that the specter of undue prejudice is manifest and that Defendant has shown good cause. There is [*4]nothing in the record to give the Court confidence that other evidence exists to obviate the "Bruton" issue. The statement at issue is rife with references to Defendant McCullough and any redaction will render it obvious to the jury that McCullough is the missing name. The Court does not believe that any limiting instructions will remedy the undue prejudice resulting from joinder. The People's response does not engender confidence in the Court that other probative evidence exists implicating Defendant McCullough, exclusive from the statement of his accomplice. The Court is mindful of the fact that severance has negative repercussions on judicial economy, but the danger of undue prejudice herein is extant.

Therefore, it is

ORDERED that Defendant's motions are granted as indicated.

This Decision shall constitute the Order of the Court.

DATED: Rochester, New York

November 19, 2008


51;-

HON. DAVID D. EGAN

SUPREME COURT JUSTICE