Opinion
July 20, 1970
Appeal from a judgment of the County Court of Albany County, entered May 20, 1968 upon a verdict convicting defendant of criminally buying and receiving stolen property in violation of section 1308 (subd. 1, par. [a]) of the Penal Law. Defendant was indicted by a Grand Jury of the County of Albany in February, 1968, which indictment charged that on June 11, 1967 defendant bought and received from Thomas Jackson, LeRoy Cage and Edward Timmons 12 typewriters and two adding machines, the same having been stolen in a burglary at premises located numbers 39 and 45 Columbia Street, Albany, New York. Defendant was brought to trial on May 8, 1968 at which trial Jackson, Cage and Timmons testified as witnesses for the People. Their testimony relates the theft of two typewriters at about noon on June 11, 1967 by Jackson and Cage; the enlistment of the aid of Willie Miller and his car to transport them to defendant's residence; the placing of the typewriters in the trunk of defendant's car; a conversation with defendant relative to obtaining more machines and his taking them from them; that Timmons then joined Jackson and Cage; the entry into the building occupied by Albany Manpower Training Center; the taking of 10 typewriters and two adding machines which were placed near an exit door; Jackson and Cage leaving the building and returning with defendant in his car; defendant opening the trunk of his car; Jackson, Cage and Timmons loading the machines into his car, and their driving with defendant to Orange Street and Broadway where defendant gave them $100 for the machines. Appellant contends that he was improperly convicted of buying and receiving stolen property in that he was a principal in the commission of a larceny, and could not be lawfully convicted upon the uncorroborated testimony of the three other principals to the crime. In this regard he argues that, although he was not a principal to the taking of the first two typewriters, he could not be convicted of buying and receiving them since the indictment stems from the receipt of typewriters and adding machines from Jackson, Cage and Timmons, and the first taking is, therefore, excluded since Timmons did not participate in the first taking. Appellant further contends that the summation by the People was improper beyond the grounds of fair comment, inflammatory and prejudicial, and that by reason thereof, defendant was denied a fair and impartial trial. The trial court charged that Jackson, Cage and Timmons were not accomplices of the defendant and that their testimony need not be corroborated citing section 1308-a of the Penal Law. Since this portion of the charge was not excepted to, it thus became the law of the case. Section 1308-a of the Penal Law, in effect at the time of the commission of the crime herein, provided that a person who has "sold, offered or delivered" stolen goods is not an accomplice of the buyer or receiver of such goods; and it was competent for the jury to consider the testimony of such a person, even though "such person may have been charged with their theft or with their receiving or with any other crime". This means that receivers or buyers of stolen goods are not deemed accomplices of those who offer, sell, or deliver them. ( People v. Valinoti, 26 N.Y.2d 553; People v. Paris, 18 N.Y.2d 817; People v. Sparks, 24 A.D.2d 538.) Further, while it is claimed that there is no corroboration of the evidence of Jackson, Cage and Timmons, the testimony of Willie Miller tended to connect defendant with the commission of the crime and at least corroborates some of the material facts relating to the crime charged against defendant. The indictment charges the receipt and purchase on the 11th day of June 1967 of 12 typewriters and two adding machines from three persons. The fact that two of these typewriters were received from only two of the larceny principals does not detract from the sufficiency of the indictment, particularly since defendant has been convicted of buying and receiving property taken in the second theft. With regard to his contention that he was denied a fair and impartial trial by reason of the comments of the Assistant District Attorney on summation, such comments were not of an inflammatory nature, and under the circumstances, were not prejudicial. ( People v. Marks, 6 N.Y.2d 67, 77; People v. Broady, 5 N.Y.2d 500, 516; People v. Bodie, 24 A.D.2d 682.) We, therefore, conclude that the judgment appealed from should be affirmed. Judgment affirmed. Herlihy, P.J., Aulisi, Staley, Jr., Cooke and Sweeney, JJ., concur in memorandum by Staley, Jr., J.