State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: December 8, 2016 105775 

________________________________

THE PEOPLE OF THE STATE OF 

NEW YORK,

Respondent,

v MEMORANDUM AND ORDER

JOSHUA VAN HOESEN,

Appellant.

________________________________

Calendar Date: October 18, 2016

Before: Peters, P.J., Garry, Devine, Clark and Aarons, JJ.

__________

Eric K. Schillinger, East Greenbush, for appellant.

P. David Soares, District Attorney, Albany (Michael C.

Wetmore of counsel), for respondent.

__________

Aarons, J.

Appeal from a judgment of the County Court of Albany County

(Lynch, J.), rendered March 15, 2013, convicting defendant

following a nonjury trial of the crime of criminal sale of a

controlled substance in the third degree.

Defendant was indicted and charged with criminal sale of a

controlled substance in the third degree stemming from his sale

of crack cocaine to a confidential informant (hereinafter CI). 

Following a nonjury trial, defendant was found guilty as charged. 

County Court thereafter denied defendant's CPL 330.30 (1) motion

to set aside the verdict and sentenced defendant, as a second

felony offender, to a prison term of three years, to be followed
-2- 105775 

by three years of postrelease supervision. Defendant appeals.1

We affirm.

Defendant contends that there was legally insufficient

evidence to support his conviction because the CI was an

accomplice whose testimony was not corroborated. For this same

reason, defendant argues that his CPL 330.30 (1) motion to set

aside the verdict was improperly denied. We disagree. "An

informant acting as an agent of the police without the intent to

commit a crime is not an accomplice whose testimony requires

corroboration" (People v Thaddies, 50 AD3d 1249, 1249 [2008]

[internal quotation marks and citations omitted], lv denied 10

NY3d 965 [2008]). Furthermore, the police detectives' testimony

concerning their observations of the controlled buy and the

cocaine sold to the CI by defendant, which the CI turned over to

the police, sufficiently corroborated the CI's testimony (see

People v Matthews, 101 AD3d 1363, 1365-1366 [2012], lvs denied 20

NY3d 1101, 1104 [2013]; People v Kennedy, 78 AD3d 1233, 1236-1237

[2010], lv denied 16 NY3d 896 [2011]). Even though the police

detectives did not see the actual transaction take place between

the CI and defendant, "corroborative evidence need only tend to

connect the defendant with the commission of the crime in such a

way as may reasonably satisfy the [trier of fact] that the

accomplice is telling the truth" (People v Rodriguez, 121 AD3d

1435, 1439 [2014] [internal quotation marks, brackets and

citations omitted], lv denied 24 NY3d 1122 [2015]). Accordingly,

we find that legally sufficient evidence exists to support the

conviction and that defendant's CPL 330.30 motion was properly

denied. 

We also disagree with defendant's contention that County

Court erred in granting the People's pretrial motion to amend the

indictment to change the location of the charged crime from a

residential building to the laundromat located approximately one

block away. This change in location did not alter the People's

1 Although defendant's notice of appeal sets forth the

incorrect date of the judgment of conviction, we exercise our

discretion to overlook this inaccuracy and treat the notice of

appeal as valid (see CPL 460.10 [6]). 
-3- 105775 

theory of the case nor did defendant suffer any prejudice by it. 

We therefore find no error in allowing the amendment (see People

v Hawkins, 130 AD3d 1298, 1302 [2015], lv denied 26 NY3d 968

[2015]; People v Cruz, 61 AD3d 1111, 1112 [2009]; People v

Clapper, 123 AD2d 484, 485 [1986], lv denied 69 NY2d 825 [1987]).

Peters, P.J., Garry, Devine and Clark, JJ., concur.

ORDERED that the judgment is affirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court