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PEOPLE STATE NEW YORK v. RENE PILON (07/23/68)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, THIRD DEPARTMENT 1968.NY.42729 <http://www.versuslaw.com>; 293 N.Y.S.2d 393; 30 A.D.2d 365 July 23, 1968 THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,v.RENE PILON, APPELLANT Appeal from a judgment of the County Court of Clinton County (James D. Curry, J.), rendered August 4, 1966, upon a verdict convicting defendant of the crime of murder in the first degree. J. Robert La Pann and Peter D. Fitzgerald for appellant. Thomas R. North, District Attorney, for respondent. Herlihy, J. Gibson, P. J., Aulisi, Staley, Jr., and Gabrielli, JJ., concur. Author: Herlihy


Appeal from a judgment of the County Court of Clinton County (James D. Curry, J.), rendered August 4, 1966, upon a verdict convicting defendant of the crime of murder in the first degree.

Herlihy, J. Gibson, P. J., Aulisi, Staley, Jr., and Gabrielli, JJ., concur.

Author: Herlihy

 This is an appeal from a judgment of the County Court of Clinton County rendered upon a jury verdict convicting the appellant Pilon and two others of committing a felony murder.

Upon the present record, it is clearly established that on March 22, 1965 shortly after 9:00 a.m., one Couture and three other men robbed a bank at Ellenburg Depot. In the process of committing the robbery, one of the three men inside the bank killed a bank employee.

Subsequent to the robbery, Couture confessed and was a witness for the People at the trial. One Berube confessed that he had stolen the automobile used in the robbery for such use of the defendants and as to many other facts prior to and subsequent to the commission of the robbery. The substantial factual issue for the jury in this case was the identity of the three people who actively participated in the robbery with Couture. Couture identified Pilon and the other two defendants, Beaudet and Dupuis, as the unknown participants. Berube identified Pilon and the other two defendants as having planned the robbery and as admittedly having committed the robbery. There was an abundance of independent evidence which corroborated the testimony of Couture as to the manner in which the crime was committed and which corroborated the testimony of Berube as to his admitted acts in connection with the robbery. As to Pilon, the evidence independent of the testimony of Couture and Berube was limited in many respects.

On this appeal the most cogent attack of Pilon on the judgment of conviction is that the trial court should have instructed the jury that Berube was an accomplice as a matter of law and should have granted his motions for a severance of the trial. The trial court instructed the jury that whether or not Berube was an accomplice was a question of fact for its consideration. Whether the jury considered Berube's testimony to corroborate the testimony of Couture or found Berube an accomplice so that his testimony could not be corroborative is crucial in regard to the weight and consideration the jury would have to give such other independent evidence in the record as to Pilon's participation in the crime.

The importance of this aspect of the case is best illustrated by the conduct of the jury. After retiring to deliberate, a note was sent to the court as follows: "Is there any law that states exactly what an accomplice is? Is there a legal definition? If so, may we please have it? Thank you. The Jury."

Accordingly the jury was returned to the courtroom and the court instructed it as to the word "accomplice" and an exception was noted on behalf of the attorney for the appellant.

Later, a second note was sent to the court, which stated: "Would it be possible for us to have a copy of Berube's testimony on the witness stand? We feel it would be more beneficial than having it read to us. Thank you. The Jury."

This request was afterward changed to include only the direct examination and which was granted.

The jury also requested and was granted a reading of the testimony of the witness Couture "as concerns Sunday, March 21, and Monday morning, prior to leaving the Hotel Lapapiniere".

After returning its verdict and prior to its discharge, the following took place:

"Mr. Holcombe: Please the court, before the jury is discharged, I have a request to make. I request the court to ask the jury to advise whether or not they found the ...


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