People v. Jones

202 A.D.2d 979, 609 N.Y.S.2d 995, 1994 N.Y. App. Div. LEXIS 3339

Opinions

—Judgment affirmed. Memorandum: Defendant was convicted after a jury trial of robbery in the first degree, assault in the second degree and criminal possession of a weapon. He contends that his conviction must be reversed because there was insufficient identification evidence to corroborate his accomplice’s testimony. We disagree.

In order for identification testimony to be sufficient to corroborate the testimony of an accomplice, it is not necessary that the witness make a positive identification (see, People v Weiss, 7 NY2d 139). Rather, the testimony is sufficient if it "tend[s] to connect the defendant with the commission of [the] offense” (CPL 60.22 [1]).

After the victim described the circumstances of the robbery, the prosecutor asked whether she saw anyone in the courtroom who "look[ed] like” one of the perpetrators. She replied, "I am not sure.” In response to further inquiry, she responded, "Yes”, and pointed to someone whom she identified as "[t]he guy with the sweat shirt”. The prosecutor asked that the record reflect that the witness identified defendant, James Jones. Defense counsel objected to that characterization, but affirmed that, "She has pointed to James Jones in response to that question.” Subsequently, the prosecutor asked whether the man who had held the other victim was in the courtroom, to which the witness responded, "I believe * * * he look like him. I am not for sure that’s him, but he looks like him.”

On cross-examination the following colloquy occurred:

"defense counsel: Mr. Tortora [the prosecutor] asked you more than once, and you said, he looks like the man?

"A. Yes, I did.

"Q. You are not sure, is that right?

"the court: Are you sure or not?

"A. It is * * * skin was smoother than his skin. I am not sure, I am not sure.”

We believe that it was reasonable for the jury, which was in a position to observe the witness, particularly when she pointed at defendant, to conclude that her testimony was sufficient to corroborate the accomplice’s testimony that defendant was a participant in the robbery.

All concur except Callahan and Davis, JJ., who dissent and vote to reverse in the following memorandum.