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People v. Pettus

Supreme Court of New York, Third Department

April 5, 2018

THE PEOPLE OF THE STATE OF NEW YORK, Respondent,
v.
RONNIE PETTUS, Appellant.

          Calendar Date: February 22, 2018

          Catherine A. Barber, Guilderland, for appellant.

          P. David Soares, District Attorney, Albany (Michael C. Wetmore of counsel), for respondent.

          Before: Garry, P.J., McCarthy, Devine, Mulvey and Rumsey, JJ.

          MEMORANDUM AND ORDER

          Mulvey, J.

         Appeal from a judgment of the County Court of Albany County (Herrick, J.), rendered December 10, 2014, upon a verdict convicting defendant of the crimes of criminal possession of a controlled substance in the first degree and criminal possession of a controlled substance in the third degree.

         On December 3, 2013, members of the Drug Enforcement Administration (hereinafter DEA) executed a search warrant at a second-floor apartment in the City of Albany that had been observed to be the focal point of drug-trafficking activity. Upon forcibly entering, DEA agents found the apartment vacant and free of occupants but observed several bags containing a white substance, as well as items commonly used in the manufacture of crack cocaine, located in the kitchen. Hearing what appeared to be the sound of individuals moving down a set of stairs, the agents then proceeded down a stairwell that led into the basement of the building where five individuals, including defendant, were discovered and apprehended. Defendant and his four codefendants were thereafter charged in a two-count indictment with criminal possession of a controlled substance in the first degree and criminal possession of a controlled substance in the third degree. Prior to trial, the four codefendants each pleaded guilty to either a charged offense or a reduced charge in satisfaction of the indictment. Following a jury trial at which codefendant James Dozier testified as the principal witness for the People, defendant was convicted as charged and sentenced to a term of imprisonment. He now appeals.

         Defendant contends that his convictions are not supported by legally sufficient evidence and are against the weight of the evidence, claiming that the only proof that he possessed the drugs and other items found in the kitchen came from the uncorroborated and incredible accomplice testimony of Dozier. Viewing the evidence in the light most favorable to the People, we find that the "minimal requirements" for accomplice corroboration were satisfied (People v Jones, 85 N.Y.2d 823, 825 [1995]; see People v Reome, 15 N.Y.3d 188, 191-192 [2010]) and that there exists a "valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the jury" (People v Bleakley, 69 N.Y.2d 490, 495 [1987]; see People v Blackman, 118 A.D.3d 1148, 1150 [2014], lv denied 24 N.Y.3d 1001');">24 N.Y.3d 1001 [2014]; People v Matthews, 101 A.D.3d 1363, 1365-1366 [2012], lvs denied 20 N.Y.3d 1101, 1104 [2013]). Further, although a different verdict would not have been unreasonable had the jury chosen to discredit Dozier's testimony, after evaluating the evidence in a neutral light and according deference to the jury's credibility assessments (see People v Danielson, 9 N.Y.3d 342, 348 [2007]; People v Bleakley, 69 N.Y.2d at 495), we find that the verdict is not contrary to the weight of the evidence (see People v Slaughter, 150 A.D.3d 1415, 1417-1418 [2017]; People v Blackman, 118 A.D.3d at 1150).

         We agree, however, that a new trial is required because County Court failed to charge the jury that Dozier was an accomplice as a matter of law. Although this error was not preserved at trial (see People v Lipton, 54 N.Y.2d 340, 351 [1981]; People v Gilbo, 52 A.D.3d 952, 954 [2008], lv denied 11 N.Y.3d 788');">11 N.Y.3d 788 [2008]), we exercise our interest of justice jurisdiction to take corrective action given our conclusion that, under the facts and circumstances of this case, the failure to so charge the jury deprived defendant of a fair trial (see CPL 470.15 [3] [c]; [6] [a]; People v Facey, 127 A.D.3d 1256, 1257 [2015]; People v Artis, 182 A.D.2d 1011, 1013 [1992]). "A defendant may not be convicted of any offense upon the testimony of an accomplice unsupported by corroborative evidence tending to connect the defendant with the commission of such offense" (CPL 60.22 [1]). For purposes of the corroboration requirement, an accomplice is defined as a witness in a criminal action who "may reasonably be considered to have participated in... [t]he offense charged; or... [a]n offense based upon the same or some of the same facts or conduct which constitute the offense charged" (CPL 60.22 [2]; see People v Sage, 23 N.Y.3d 16, 23 [2014]; People v Major, 143 A.D.3d 1155, 1157 [2016], lv denied 28 N.Y.3d 1147 [2017]). "Thus, to be an accomplice for corroboration purposes, the witness must somehow be criminally implicated and potentially subject to prosecution for the conduct or factual transaction related to the crimes for which the defendant is on trial" (People v Medeiros, 116 A.D.3d 1096, 1098 [2014] [internal quotation marks and citations omitted], lv denied 24 N.Y.3d 1045 [2014]; accord People v Whyte, 144 A.D.3d 1393, 1394 [2016]; People v Kocsis, 137 A.D.3d 1476, 1480 [2016]).

         Here, Dozier's unimpeached testimony established that he was at the second-floor apartment on the day in question to purchase crack cocaine [1]. He was arrested and charged, along with defendant and the remaining codefendants, with crimes stemming from his presence in the apartment on that date and thereafter pleaded guilty to criminal possession of a controlled substance in the third degree in exchange for his truthful testimony against defendant. Because Dozier "could have been (and was) charged with a crime 'based upon the same or some of the same facts or conduct' upon which the charges against defendant were based, " he was an accomplice as a matter of law (People v Medeiros, 116 A.D.3d at 1098, quoting CPL 60.22 [2] [b]; accord People v Whyte, 144 A.D.3d at 1394; see People v Sweet, 78 N.Y.2d 263, 266 [1991]; People v Lee, 80 A.D.3d 877, 878 [2011], lvs denied 16 N.Y.3d 832, 833, 834 [2011]; People v Adams, 307 A.D.2d 475, 476 [2003], lv denied 1 N.Y.3d 566 [2003]). County Court was therefore required to instruct the jury that Dozier was an accomplice as a matter of law and that defendant could not be convicted on Dozier's testimony absent corroborative evidence (see CPL 60.22 [1]). "Failure to so charge the jury was necessarily harmful error, " given that the case against defendant rested substantially - if not exclusively - upon the testimony of Dozier (People v Jenner, 29 N.Y.2d 695, 696-697 [1971] [citation omitted]; accord People v Minarich, 46 N.Y.2d 970, 971 [1979]; People v Medeiros, 116 A.D.3d at 1098-1099; see People v Whyte, 144 A.D.3d at 1395; People v Adams, 307 A.D.2d at 478; People v Artis, 182 A.D.2d at 1013; People v Arnott, 143 A.D.2d 761, 763 [1988]; compare People v Thorpe, 141 A.D.3d 927, 935 [2016], lv denied 28 N.Y.3d 1031');">28 N.Y.3d 1031 [2016]; People v Clarke, 101 A.D.3d 1646, 1647 [2012], lv denied 20 N.Y.3d 1097');">20 N.Y.3d 1097 [2013]). Accordingly, the judgment of conviction must be reversed and a new trial ordered.

         In light of our determination, we need not address defendant's remaining contention.

          Garry, P.J., McCarthy, Devine and Rumsey, JJ., concur.

         ORDERED that the judgment is reversed, as a matter of discretion in the interest of justice, and matter remitted to the ...


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