
    The People of the State of New York, Respondent, v. Thyndle Brooks, Appellant.
    Argued June 3,1974;
    decided July 10, 1974.
    
      Eugene Murphy, James J. McDonough and Matthew Muraskin for appellant.
    I. The identity of the informer should not have been refused to defendant without a hearing. (Roviaro v. United States, 353 U. S. 53; United States v. D’Angiolillo, 340 F. 2d 453, 380 U. S. 955; People v. Goggins, 42 A D 2d 227; United States v. Roberts, 388 F. 2d 646; United States v. Barnett, 418 F. 2d 309; Gilmore v. United States, 256 F. 2d 565; Lopez-Hernandez v. United States, 394 F. 2d 820.) II. The Trial Judge committed reversible error in refusing to instruct the jury that they might find Lo Monaco to be an accomplice. (People v. Beaudet, 32 N Y 2d 371; People v. Merrill, 286 App. Div. 307; People v. Clougher, 246 N. Y. 106; People v. White, 26 N Y 2d 276; People v. Wheatman, 31 N Y 2d 12; People v. Kupperschmidt, 237 N. Y. 463; People v. Washington, 18 N Y 2d 366; People v. Jackson, 69 Misc 2d 793.) III. Hearsay testimony as to defendant’s complicity in the crime charged was improperly received. (United States v. Barash, 365 F. 2d 395.) IV. Lo Monaco’s testimony that he had previously bought jewelry from defendant was reversible error. (People v. Condon, 26 N Y 2d 139; People v. McKinnney, 24 N Y 2d 180; People v. Outler, 31 A D 2d 639.) V. Defendant’s guilt of the larceny was not proved. (People v. Cleague, 22 N Y 2d 363; People v. Agron, 10 N Y 2d 130.)
    
      William Cahn, District Attorney (Henry P. DeVine of counsel), for respondent.
    I. Guilt was proved beyond a reasonable doubt. (People v. Roman, 12 N Y 2d 220; People v. Colon, 28 N Y 2d 1; People v. Moro, 23 N Y 2d 496; People v. Cefaro, 21 N Y 2d 252; People v. Everett, 10 N Y 2d 500; People v. Galbo, 218 N. Y. 283.) II. Evidence of uncharged crimes not received. III. Receiver was not an accomplice of thief. (People v. Blank, 283 N. Y. 526; People v. Mayhew, 150 N. Y. 346; People v. Gibson, 301 N. Y. 244; People v. Zucker, 20 App. Div. 363, 154 N. Y. 770; People v. Beaudet, 32 N Y 2d 371; People v. Wheatman, 31 N Y 2d 12; People v. Cohen, 223 N. Y. 406; People v. Swersky, 216 N. Y. 471; People v. Sweeney, 213 N. Y. 37; People v. Bright, 203 N. Y. 73.)
   Jones, J.

We are called on to interpret the definition of accomplice now set forth in CPL 60.22 (subd. 2).

After a jury trial appellant was convicted of petit larceny for the theft of jewelry taken from a residence in the Woodsburgh section of Woodmere, Long Island. At the trial one Lo Monaco, a known receiver of stolen goods or ‘ ‘ fence ’ ’, to whom the police had been led by a confidential informer, appeared as a witness for the prosecution in exchange for a promise that he would not be prosecuted. He testified that in response to a telephone call concerning stolen property he went to appellant’s apartment where he purchased some jewelry from appellant. In answer to Lo Monaco’s inquiry appellant had said that the jewelry had come from the ‘ ‘ south shore “ around Woodmere or Lawrence ”.

The evidence disclosed that Lo Monaco had known appellant for about a year and had been to his apartment on 10 or 20 occasions. Lo Monaco admitted that he had bought jewelry from appellant more than once. He had no agreement with appellant, however, but if the latter had something he would contact Lo Monaco who would buy it. Lo Monaco testified that he had no prior knowledge that this particular theft was going to be committed or that he was going to get this lot of jewelry.

Appellant urges that the trial court committed reversible error in denying his request to charge that the jury could find that the witness Lo Monaco was an accomplice.

CPL 60.22 (subd. 2) provides as follows:

An ‘ accomplice ’ means a witness in a criminal action who, according to 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.”

This definition replaced the previous judicially formulated rule under which the test was ‘‘ whether an alleged accomplice was so connected with the crime that he could have been convicted as a principal or as an accessory before the fact ”. (People v. Beaudet, 32 N Y 2d 371, 374.) The consequence of the adoption of this statutory definition is to “ broaden the definition of an accomplice as the term is applied to witnesses, in order to provide a more equitable, operable and consistent standard for the courts in determining when the requirement of corroboration is applicable ”. (McKinney’s Cons. Laws of N. Y., Book 11A, CPL 60.22, Practice Commentary, p. 195; People v. Beaudet, supra, p. 378).

Turning then to the application of the statutory definition to the facts of this case we first note that Lo Monaco was not an accomplice under paragraph (a); he could not reasonably be considered to have participated in the theft of the jewelry. The issue is whether he could be found to fall within the ambit of paragraph (b). We observe that perhaps in a mechanical, literal sense Lo Monaco might be said to be an accomplice within the language of paragraph (b). That is, he might be considered to have participated in an offense, criminal possession of stolen property, one material element of which would have been the theft of the jewelry by appellant. We are satisfied, however, that in view of the history of our statutes no such result was ever intended. As Mr. Justice Learned Hand wrote in other contexts, There is no surer way to misread any document than to read it literally ” (Guiseppi v. Walling, 144 F. 2d 608, 624); and “ [o]f course it is true that the words used, even in their literal sense, are the primary, and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract, or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.” (Cabell v. Markham, 148 F. 2d 737, 739.) “ This question cannot be answered by closing our eyes to everything except the naked words of the [statute]. The notion that because the words of a statute are plain, its meaning is also plain, is merely pernicious oversimplification.” (Mr. Justice Frankfurter dissenting in United States v. Monia, 317 U. S. 424, 431.)

The relationship between a thief and his fence presents a special situation in which for pragmatic as well as legal reasons both the two crimes and the two criminals must be viewed discretely. Under the former case law by which an accomplice was held to be one criminally responsible as either a principal or an accessory before the fact, we held in 1924 that the thief as a witness was an accomplice of the receiver in the prosecution of the latter for receiving stolen goods under section 1308 of the former Penal Law, and accordingly that corroboration of his testimony was required under then section 399 of the Code of Criminal Procedure. (People v. Kupperschmidt, 237 N. Y. 463.) In so concluding Judge Pound wrote for the court (p. 465), “ The fact that the receiver is not in the absence of prior accessorial acts an accomplice of the thief in the larceny is irrelevant.” We are aware of no responsible authority in New York holding that a receiver is an accomplice of the thief when, as here, there is no proof of a prior agreement between them. Usually the two crimes of theft and receiving the proceeds of the theft are separate both in time and in operative components. The theft has been completed independently before the receiver has come on the scene, and the act of receiving occurs at a quite different place and at a subsequent time.

In consequence of the Kupperschmidt decision, in 1928 the Legislature added a new section, 1308-a, to the Penal Law, explicitly providing that a thief was not to be deemed an accomplice of the receiver, thus restoring the categorical separateness, in the absence of a prior arrangement between them, of the thief and the fence. We are aware of no distress among commentators or penologists that in the unique relationship between thief and receiver there should be recognized and maintained this wall of separation between the two sequential crimes.

There is nothing now in section 20.00 of the new Penal Law which suggests that it was -intended to obliterate this demarcation. The explicit direction that no corroboration is to be required when the thief testifies against the receiver is now carried over from former section 1308-a of the Penal Law to section 165.65 of the new Penal Law.

In our view, under both statutory and decisional law the relationship between thief and receiver has been the subject of specific attention, with the separateness of the two crimes recognized and preserved and all requirements of corroboration of the testimony of either criminal eliminated. As to the thief-to-receiver aspect of the relationship, the mometary judicial decision in Kupperschmidt [supra) to require corroboration was promptly reversed by statute. There has been no occasion for explicit statutory address to the counterpart aspect, that of receiver-to-thief, since until now, it has never been suggested that in the absence of a prior arrangement between them the receiver was an accomplice of the thief. On this analysis we cannot conclude that the enactment of CPL 60.22 applying to accomplices generally was intended to destroy either aspect of the classic separation between the crimes of theft and receiving stolen property. Our attention is invited to no legislative history which suggests that this was the specifically intended result of the enactment of CPL 60.22.

We cannot agree, therefore, with the proposition urged on us that CPL 60.22 (subd. 2, par. [b]) automatically makes every receiver an accomplice of the thief notwithstanding the absence of proof that the receiver procured or otherwise aided or abetted the thief in the commission of the larceny. Consideration of an instance in which stolen securities after perhaps several months of total concealment are disposed of through a fence theretofore completely unaware of the larceny, emphasizes the essential separateness of the two crimes. That in this case the time interval was shorter does not affect the conceptual analysis or call for a contrary determination. Had there been any evidence here of a prior agreement or arrangement between appellant and Lo Monaco or any evidence that Lo Monaco was otherwise criminally implicated in the larceny, the result would be different.

We find no substance to appellant’s argument that he was entitled to a hearing before the court denied his request for disclosure of the identity of the informer who led the police to Lo Monaco but who was neither a participant in nor a key witness to the crime of larceny (People v. Goggins, 34 N Y 2d 163). We have examined appellant’s other contentions and find them to be without merit.

Accordingly, the order of the Appellate Division should be affirmed.

Wachtler, J. (dissenting).

Defendant’s conviction for larceny rested solely on the testimony of Lo Monaco who stated at trial that the police had caught him in possession of the stolen goods. Lo Monaco went on to admit that he knew the goods were stolen but shifted the blame for the actual theft to the defendant and testified against him in order to avoid being prosecuted himself for possession of stolen property. On the strength of these admissions Lo Monaco should have been held to have been an accomplice as a matter of law (CPL 60.22, subd. 2, par. [b]) and the People should have been required to offer some independent corroborative evidence “ tend[ing] to connect the defendant with the commission of the crime in such a way as may reasonably satisfy the jury that the accomplice is telling the truth.” (People v. Dixon, 231 N. Y. 111, 116.)

“ [T]he purpose of the ‘ accomplice ’ doctrine * * * [is to preclude] conviction solely upon the testimony of persons who are in some way criminally implicated in, and possibly subject to, prosecution for the general conduct or factual transaction on trial ” (Denzer, Practice Commentary, McKinney’s Cons. Laws of N. Y., Book 11 A, CPL 60.22, pp. 194-195, emphasis in original). Prior to the Criminal Procedure Law the avowed purpose was imperfectly realized primarily because an accomplice was narrowly defined and corroboration was unnecessary unless it appeared that the witness had participated as a principal in the same offense with which the defendant was charged (see, e.g., People v. Beaudet, 31 N Y 2d 371). Witnesses whose conduct had been such that they could only be charged with different, usually lesser, offenses escaped the operation of the rule despite the fact that they too might be motivated to accuse another in order to be absolved from prosecution for the crimes they had committed.

To fill this gap the Legislature, 1971, broadened the judicially created definition of an accomplice at least insofar as the corroboration rule was concerned. (Denzer, Practice Commentary, id.) Thus under the Criminal Procedure Law corroboration is required not only when the witness “ may reasonably be considered to have participated in * * * The offense charged ” (CPL 60.22, subd. 2, par. [a]) but also when the evidence indicates that he might have participated in any offense based upon the same or some of the same facts or conduct which constitutes the offense charged ” (CPL 60.22, subd. 2, par. [b]).

The majority concedes that “ perhaps in a mechanical, literal sense Lo Monaco might be said to be an accomplice within the language of paragraph (b) ”, but finds in the history of the statute some indication that the Legislature actually intended to create a special exception for the thief-receiver relationship. The primary indicator is said to be section 1308-a of the former Penal Law (now Penal Law, § 165.65) which provides that the receiver may be convicted solely on the testimony of the thief. Admittedly this section is not controlling here since we are confronted with the converse situation, but, it is argued, the statute reveals a legislative design to treat the thief-receiver relationship as sui generis, and thus beyond the reach of the normal accomplice rule in every case. I disagree. In my view the history of the statute points to the opposite conclusion. The logic and obvious reason behind the enactment of subdivision 2 of section 165.65 of the Penal Law was to enable law enforcement agencies to strike at the fence ”, who provided the financial inducement for the thief to commit the larceny. The Penal Law carves out this one very unusual, isolated and specific exception to the broadened accomplice rule in the Criminal Procedure Law, but that does not, of course, apply where it is the thief, not the receiver, who is being prosecuted.

As the majority notes the statute was enacted in 1928 to overcome the result of the decision in People v. Kupperschmidt (237 N. Y. 463) which held that in a prosecution of the receiver the testifying thief should be treated as an accomplice despite the fact that the receiver could not technically be considered a principal to the theft “ in the absence of prior accessorial acts ”. (Kupperschmidt, supra, at p. 465.) Obviously the effect of this decision was to place the thief-receiver relationship in a special category which was not subject to the prevailing rule that an accomplice, for the purpose of the corroboration statute (Code Crim. Pro., § 399) had to be “ so connected with the crime that he could have been convicted as a principal or as an accessory before the fact ” (People v. Beaudet, supra, at p. 374). The Legislature responded with section 1308-a of the former Penal Law which brought the thief-receiver relationship back within the general rule and rejected in unmistakable terms the notion once again adopted by the majority in this case, that the relationship between the receiver and the thief belongs in a special category which should be treated as an exception to the corroboration rule applicable to accomplices generally.

On the pragmatic side the majority stresses the classic separation between the crimes of theft and receiving stolen property ” which, they note, may in fact be remote in time. The classic separation concept., of. course merely restates and perpetuates the rigid classifications of prior law which CPL 60.22 (subd. 2, par. [b]) was expressly designed, to eliminate. Under the present law the fact that the defendant and the witness may have committed legally discrete crimes is no longer controlling so long as it is shown that the witness is “ in some way criminally implicated in, and possibly subject to, prosecution for the general conduct or factual transaction on trial.-” (Denzer, Practice Commentary to CPL 60.22, supra.)

Nor do I see any significance in the fact that the larceny and receiving might occur at different, perhaps remote times. Even where several months have elapsed between the theft and the disposition of the goods, the receiver caught with stolen property is going to be tempted to accuse another in the hope of making a deal to avoid the consequences of his criminal behavior, and this is precisely what the statute is designed to guard against.

In sum whether we consider the literal terms or the purpose of the statute, Lo Monaco, who conceded his guilt and admitted his motive for testifying, was an accomplice as a matter, of law. And there is nothing in the legislative history to justify the conclusion that despite the language of the statute, the relationship between a receiver and a thief should always be exempted from the operation of the accomplice rule.

I would reverse and order a new trial.

Chief Judge Breitel and Judges Jasen, Babin and Stevens concur with Judge Jones; Judge Wachtler dissents and votes to reverse in a separate opinion in which Judge Gabrielli concurs.

Order affirmed. 
      
       We note, in passing, as further evidence of the distinctive treatment accorded this subject, that section 165.65 of the Penal Law, as did its predecessor, section 1308-a, also eliminated any requirement of corroboration of testimony against the receiver by any third person to whom he had in turn sold or transferred the stolen property.
     
      
       Ironically the statute which established uniformity in 1928 now functions, perhaps inadvertently, as an exception to the new broadened accomplice rule, at least in a narrow category of cases (i.e., prosecutions of receivers when the primary witness is the thief). However until the Legislature either broadens this unusual “ exception ” or abolishes it I would limit the statute to the situation described and not judicially enlarge it at the expense of the newly expressed legislative policy.
     