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Accomplice Testimony and The Corroboration Rule


7324252_mlPeople v Sage

2014 NY Slip Op 02214

Court of Appeals

Decided on April 1, 2014

The Court Held That The Co-Defendant Was An Accomplice And That The Jury Should Have Been Instructed On The Corroboration Rule: I.E. That There Needed To Be Corroborating Evidence To Find The Defendant Guilty Because The Co-Defendant Was An Accomplice As A Matter Of Law.

Summary: Defendant was charged with second-degree murder for the beating of Hector Merced on November 17, 2007. At trial, Mogavero testified that he observed, but did not participate in, the attacks on Merced that eventually led to Merced’s death. Mogavero’s evidence created a factual issue as to whether he was an accomplice in fact and whether his testimony was sufficiently corroborated to find defendant Sage guilty beyond a reasonable doubt. The trial court’s failure to instruct the jury was not harmless error because the court determined   that the witness was an accomplice as a matter of law. The trial court should have  then instructed the jury that the witness was an accomplice and subject to the  corroboration rule requirement.

There was no evidence that Mogavero was involved in the planning or execution of the crime. The order of the Appellate Division was reversed and the indictment dismissed as to defendant, with leave to the People, to resubmit the charge of manslaughter in the first degree.

Issue: Whether the trial court erred when it failed to instruct the jury that the codefendant Mogavero was either an accomplice in fact or an accomplice as a matter of law and that there must be some corroborating evidence in order to find the defendant guilty.

Holding: The court held that Mogavero was an accomplice and that corroborating evidence should have supported his testimony and the jury should have been instructed as to the corroboration rule. The court dismissed the indictment without prejudice and gave the People leave to bring back the manslaughter charges in a separate indictment.

Facts: The defendant was charged by indictment with murder in the second degree (Penal Law § 125.25), stemming from the early-morning beating of Hector Merced on November 17, 2007. At trial, Mogavero presented a story of how he observed, but did not participate in, the entire series of attacks on Merced that led to his death. Mogavero testified that the beating of Merced began with co-defendants Clarke and Velez kicking and punching Merced. Mogavero denied participating in the beating, claiming he only punched Merced twice at the beginning, and then he backed up and kept out of it because he did not want the others to turn on him. He testified that he decided to get Merced out of the apartment after the others had stopped beating him.

Mogavero claimed that he picked up Merced off the floor, along with Velez, and carried him across the street to place his body on the porch of a neighbor’s house. Mogavero watched the defendants walk toward the neighbor’s house and strike Merced again, forcefully with a mop handle. He then claimed he walked back to the porch and tried to stop the defendant, describing how he “kind of grabbed the defendant by the shirt” to kind of “pull him back” from Merced.

According to Mogavero, he and the defendant left the scene of the beating by separate routes and went to the defendant’s home. As soon as he arrived there he changed clothes because they were stained with Merced’s blood, placed the clothes in the garbage bag and left them in the bedroom.  He then just “hung out” at the defendant’s home for a couple hours, eventually falling asleep.

Legal Analysis:  An accomplice is a witness in a criminal action who, according to the evidence adduced in such action, may reasonably be considered to have participated in: (a) the offense charged; or (b) an offense based upon the same or some of the same facts or conduct which constitute the offense charged CPL 60.22 2. Under our criminal law, “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.

The Court found that the testimony of such a witness, marked by obvious self-interest, carries the potential for falsification to avoid prosecution People v Sweet, 78 NY2d 263, 267 1991. The law recognizes that accomplice testimony is inherently untrustworthy because those charged with a crime often seek to escape the consequences and curry favor with officials by implicating others, People v Berger, 52 NY2d 214, 219 1981. Courts have thus exercised the utmost caution in dealing with accomplice testimony, especially when the testimony is exchanged for immunity or other favorable prosecutorial consideration, People v Cona, 49 NY2d 26, 35-36 1979.

The accomplice corroboration rule is premised upon a legislative determination that the testimony of individuals who may themselves be criminally liable is inherently suspect. This is deemed to be true because such individuals may be subject to pressures impelling them to color testimony in order to protect themselves by belittling the actual extent of their involvement in the criminal enterprise at the expense of others.

 In this case the court found that the Mogavero was an accomplice because an accomplice is a witness in a criminal action who, according to the evidence adduced in such action, may reasonably be considered to have participated in: (a) the offense charged, or (b) the offense based upon the same or some of the same facts or conduct which constitute the offense charged.

 The charge to the jury should have been given “when differing inferences may reasonably be drawn as to whether a witness who participated in the offenses is an accomplice-in-fact. The instruction on the corroboration rule must be given when such an inference can be drawn. Failure to do so in this case was not harmless and constitutes reversible error.