People v. Ross

¶1dissents and votes to reverse in the following memorandum. Mikoll, J. (dissenting). I respectfully dissent. The trial record is barren of evidence legally sufficient to corroborate the testimony of the accomplice, Leland Jones, tending to connect the defendant with the crimes of which he was convicted as required by CPL 60.22. Leland Jones was the accomplice whose testimony forms the basis of the case against the defendant. The prosecution relies for corroboration on the testimony of two other witnesses, namely, Mary Christina Hagood and Diane Nelson, to place the defendant in close proximity to the home where Larry Barnes was staying before the crimes were committed and, also, to place him in the company of Barnes after the commission of the crimes. Barnes was identified by both victims as a perpetrator of the crimes with other unidentified persons. The purported corroborative witnesses, Mary Christina Hagood and Diane Nelson, testified that they could not identify the defendant as the unknown man to whom they were introduced the night of the crime, with whom they drove into Ithaca and who was dropped off at a street near where Barnes was staying. No one was able to place this stranger with Barnes after the crime was committed. At its strongest, we have evidence that both witnesses were introduced to a stranger whom they cannot identify as being the defendant and that this stranger remained silent when introduced by a name which sounded to one witness as "Linny” or "Lenny” and to the other as "Lynwood”. The majority concludes that silence by the stranger at the introduction constitutes a tacit admission of the truth of the introduction. Courts in criminal cases are cautious in not reaching the conclusion that silence constitutes an admission unless it is clear that the person heard the statement made in his presence, that such person fully understood what was said, and that he had an opportunity to reply and would have naturally denied the statement if he regarded it as untrue (see People v Allen, 300 NY 222). It cannot be concluded that the person who was introduced to Mary Christina Hagood and Diane Nelson admitted to the correctness of the introduction. The foundation for such a conclusion was never properly laid. Finally, arguendo, even if the testimony of the corroborating witnesses was sufficient to identify the stranger as the defendant and to place him near Barnes’ place of stay, mere association with Barnes would be relevant only if it may reasonably give rise to an inference that the defendant was also a participant in the crime. Inferences flowing from presence or association must rest on probability (People v Wasserman, 46 AD2d 915). It stretches the bounds of reason that the defendant’s presence on a street near the home of a person who acknowledgedly participated in crimes at another location an hour later is sufficient corroboration of the commission of the crime by the defendant. The conviction should be reversed as a matter of law.