SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

1354 

KA 11-02610 

PRESENT: SMITH, J.P., PERADOTTO, CARNI, VALENTINO, AND DEJOSEPH, JJ. 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

JAMES E. HIGHSMITH, ALSO KNOWN AS JAMES E. 

HIGHSMITH, III, DEFENDANT-APPELLANT. 

 

LAW OFFICES OF JOSEPH D. WALDORF, P.C., ROCHESTER (JOSEPH D. WALDORF

OF COUNSEL), FOR DEFENDANT-APPELLANT. 

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (ROBERT J. SHOEMAKER OF

COUNSEL), FOR RESPONDENT. 

 

Appeal from a judgment of the Monroe County Court (Melchor E.

Castro, A.J.), rendered October 28, 2011. The judgment convicted

defendant, after a nonjury trial, of burglary in the first degree and

burglary in the second degree. 

It is hereby ORDERED that the judgment so appealed from is

unanimously affirmed. 

Memorandum: On appeal from a judgment convicting him, after a

nonjury trial, of burglary in the first degree (Penal Law § 140.30

[2]) and burglary in the second degree (§ 140.25), defendant contends

that the People did not sufficiently corroborate the testimony of the

accomplices, as required by CPL 60.22 (1). We reject that contention.

It is well settled that “ ‘[t]he corroborative evidence need not show

the commission of the crime . . . It is enough if it tends 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 Reome, 15 NY3d 188, 192-193, quoting People v

Dixon, 231 NY 111, 116). “[E]vidence that defendant was present at

the scene of the crime or was with the accomplices shortly before or

after the crime can, under certain circumstances, provide the

necessary corroboration of the accomplices’ testimony” (People v

Bolden, 161 AD2d 1126, 1126-1127, lv denied 76 NY2d 853). Here, three

accomplices testified that defendant planned the crime along with

them, accompanied them to the crime, acted as a lookout during the

crime, accompanied them to a motel room immediately after the crime,

and accepted his share of the proceeds of the crime, including cash

and drugs. An employee of the motel testified that defendant paid for

that motel room in cash, and defendant gave a statement to the police

admitting that he accompanied the codefendants to that room and paid

for the room. The employee’s testimony and defendant’s statement 
-2- 1354 

KA 11-02610 

“ ‘harmonized’ ” with the accomplice testimony (People v McRae, 15

NY3d 761, 762, rearg denied 15 NY3d 902). Furthermore, mail addressed

to defendant was recovered from one of the vehicles used in the

commission of the crime (see generally People v Rodriguez, 22 NY3d

917, 918). 

Contrary to defendant’s contention, viewing the evidence in the

light most favorable to the People (see People v Williams, 84 NY2d

925, 926), we conclude that it is legally sufficient to support the

conviction (see generally People v Bleakley, 69 NY2d 490, 495). 

Contrary to defendant’s further contention, viewing the evidence in

light of the elements of the crimes in this nonjury trial (see People

v Danielson, 9 NY3d 342, 349), we conclude that the verdict is not

against the weight of the evidence (see generally Bleakley, 69 NY2d at

495). 

Defendant’s contentions with respect to the sufficiency of the

evidence submitted to the grand jury are “not reviewable on appeal

because the grand jury minutes are not included in the record on

appeal” (People v Dilbert, 1 AD3d 967, 967-968, lv denied 1 NY3d 626;

see generally People v Lane, 47 AD3d 1125, 1127 n 3, lv denied 10 NY3d

866). In any event, “[i]t is well established that ‘[t]he validity of

an order denying any motion [to dismiss an indictment for legal

insufficiency of the grand jury evidence] is not reviewable upon an

appeal from an ensuing judgment of conviction based upon legally

sufficient trial evidence’ ” (People v Afrika, 79 AD3d 1678, 1679, lv

denied 17 NY3d 791, quoting CPL 210.30 [6]) and, as we concluded

herein, the trial evidence is legally sufficient. Finally, inasmuch

as the evidence, the law, and the circumstances of this case, viewed

in totality and as of the time of the representation, establish that

defense counsel provided meaningful representation, we reject

defendant’s contention that he was denied effective assistance of

counsel (see generally People v Baldi, 54 NY2d 137, 147).

We have reviewed defendant’s remaining contention and conclude

that it lacks merit.

Entered: January 2, 2015 Frances E. Cafarell

Clerk of the Court