People v. Vataj

Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Lange, J.), rendered December 19, 1984, convicting him of murder in the second degree and criminal possession of a weapon in the second degree (two counts), upon a jury verdict, and imposing sentence. Judgment affirmed. There is no evidence in the record from which it can be inferred that a key witness for the prosecution in this case actually participated in the murder of which the defendant was found guilty. However, based on that witness’s uncontradicted testimony, it appears that he learned about the murder shortly after its commission, assisted in, or was at least present during, the destruction of evidence, and also lied to investigators concerning his knowledge of the crime. We must decide whether such conduct renders the witness an accomplice for the purpose of determining whether his testimony required corroboration (CPL 60.22). We note, initially, that contrary to the People’s contention, this issue has been preserved for review as a matter of law. The counsel for the defendant specifically requested that the court submit to the jury the question whether, as a matter of fact, the witness was an accomplice. It is true that counsel did not expressly request a charge that, as a matter of law, the witness must be considered an accomplice. However, the court construed counsel’s request as being, in effect, a request to charge that the witness was "an accomplice in the entire criminal enterprise”. Under these circumstances, we conclude that the defendant impliedly, if not expressly, sought a ruling that the witness was an accomplice as a matter of law, and thus raised a question of law as to the court’s denial of that request (CPL 470.05 [2]; People v Cona, 49 NY2d 26, 33). We also reject, at the outset, the defendant’s assertion that there was a "veritable plethora of evidence” that the prosecution’s chief witness participated in the crime of murder. The witness freely admitted to participation in the drug operation in which the defendant was involved. While this testimony might establish that the witness was an accomplice with [757] respect to crimes committed as part of that drug enterprise (see, People v Cona, supra), the crime of murder, as charged in this case, was a discrete and separate crime (see, People v Cobos, 57 NY2d 798). As to the crime of murder, "[t]here was no evidentiary showing from which the inference of [the witness’s] participation could reasonably have been drawn (People v Santana, 82 AD2d 784, 785, affd 55 NY2d 673; see, People v Basch, 36 NY2d 154)” (People v Byrd, 106 AD2d 511). This witness was not present at the scene of the murder, and the record is devoid of proof from which it can be inferred that the witness conspired in, solicited, or knowingly facilitated the murder. The People concede, however, that, after having learned of the crime, the witness made false statements to police, and was present while evidence of the crime was destroyed. The testimony reveals that the witness actually assisted in the destruction of evidence by, for example, helping to remove the license plate from the car in which the victim was abducted and driven to the scene of the crime. The question presented then is whether conduct, which possibly subjected the witness to prosecution for hindering prosecution (see, Penal Law § 205.50 [5] [suppression or alteration of evidence]) renders the witness an accomplice for the purpose of requiring corroboration of his testimony. We hold that it does not, and that, in order to be deemed an accomplice, a witness must be shown to have been implicated in the criminal transaction which forms the basis for the prosecution. A witness who learns of a criminal transaction after the fact and then hinders prosecution of it is simply not to be mistrusted to the same extent as a person who actually participated in the crime. In People v Walker (87 AD2d 725, 726) the Appellate Division, Third Department, addressed the question of whether an " 'accessory after the fact’ ” may be deemed an accomplice, but declined to resolve the issue, since it had not been preserved for review as a matter of law. Also, in People v Aleschus (81 AD2d 696, affd 55 NY2d 775), the Third Department rejected the defendant’s argument that the court had delivered a faulty accomplice charge, and determined that, as to two witnesses, the accomplice charge was superfluous, since those witnesses learned about the crimes after their commission. "[I]t is apparent that they were in no way implicated in any of the facts or conduct which make up the crimes with which defendant was charged and, therefore, they could not be considered accomplices (People v Spiegel, 60 AD2d 210, affd 48 NY2d 647)” (People v Aleschus, supra, p 697). This court, in [758] People v Le Grand (61 AD2d 815, cert denied 439 US 835) held that there was no error in refusing to charge that a witness— the defendant’s wife — was an accomplice as a matter of law where it appeared that she had learned that her husband had murdered his ex-wife, failed to report the crime, and assisted in the disposal of the body. Thus, in accordance with the foregoing precedent, an "accessory after the fact” is not to be considered an accomplice as a matter of law. Our decision in People v Conlon (66 AD2d 823, appeal dismissed 46 NY2d 1059) is not to the contrary. That case involved a prosecution for burglary, larceny, and criminal possession of stolen property. In that case, it is true, a key prosecution witness had not participated in the burglary and larceny. However, that witness actively assisted in the furtherance of the criminal enterprise by assisting in the disposal of the stolen property. In the case at bar, the witness did nothing to advance or facilitate the murder; at most, he participated in efforts to avoid detection. Our decision in People v Santoro (68 AD2d 939) is likewise distinguishable. In that case, the People’s witness had learned that her paramour had killed her three-year-old child. This witness originally lied to police concerning the circumstances of the death. The court refused to charge that the witness was, as a matter of law, an accomplice, but submitted to the jury the question whether, as a matter of fact, the witness was an accomplice. Although this court stated that the issue was "properly submitted to the jury”, that observation was pure dicta. The defendant also argues that, even if the witness in question is not an accomplice as a matter of law, the accomplice issue should at least have been submitted to the jury as a question of fact, as it was in People v Santoro (supra). We disagree with this contention as well. Having decided that, where a witness’s status is merely that of an "accessory after the fact”, such witness is not an accomplice for the purpose of the corroboration requirements of CPL 60.22, we necessarily also conclude that, where a witness’s status as an "accessory after the fact” is in dispute, there is no need for a jury resolution of that question. Generally, a jury question is presented regarding accomplice status where differing inferences may be drawn from the proof regarding complicity (People v Basch, 36 NY2d 154, 157; People v Beaudet, 32 NY2d 371, 376). In this case, there is simply no issue of fact regarding the witness’s postcrime activities, since that witness’s testimony is, in material part, uncontradicted. Thus, the court correctly refused to submit to the jury any question as to the [759] witness’s accomplice status, and properly refused to instruct the jury on the need for corroboration of the testimony of a witness who is an accomplice as a matter of law. We have reviewed defendant’s remaining contentions and find that they are without merit. Gibbons, J. P., Weinstein and Lawrence, JJ., concur.