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Absence of Corroboration of Confession to Attempted Robbery Required Dismissal of Attempted Robbery Count—However Dismissal of the First Degree Murder and Felony Murder Counts, Both of Which Were Based Upon the Attempted Robbery, Was Not Required—The Death Itself Provided the Requisite Corroboration

The Fourth Department, in a detailed decision addressing several substantive issues not summarized here, found there was no proof of the attempted robbery count except defendant’s confession. The absence of corroboration required reversal of the attempted robbery count. However, with respect to the first degree murder and felony murder counts (for which attempted robbery was the underlying felony) the death itself provided sufficient corroboration:

“A person may not be convicted of any offense solely upon evidence of a confession or admission made by him [or her] without additional proof that the offense charged has been committed” (CPL 60.50…). With respect to the counts of murder in the first degree and felony murder, it is well settled that “CPL 60.50 does not require corroboration of defendant’s confession to the underlying predicate felony” to sustain a conviction of murder in the first degree or felony murder, when the charge is based on a murder committed in the course of and in furtherance of one of many enumerated felonies … . “The effect of the confession corroboration statute is to require proof of the corpus delicti” … . With felony murder and murder in the first degree, the corpus delicti is a death resulting from someone’s criminality, i.e., a death that did not occur by suicide, disease or accident … . The fact that the victim was found dead as the result of a gunshot wound is sufficient corroboration … .

The same analysis does not apply to the underlying felony itself. Where, as here, there is no corroboration of a defendant’s confession with respect to the underlying felony, that count of the indictment charging the defendant with the underlying felony must be dismissed … . People v Harper, 2015 NY Slip Op 07064, 4th Dept 10-2-15

 

Purchaser of a Firearm is an Accomplice of the Seller for Corroboration Purposes

The Third Department determined the trial court’s failure to instruct the jury that a witness against the defendant (Lewandowski) was an accomplice as a matter of law (requiring corroboration of his testimony) was reversible error. Lewandowski bought a firearm from the defendant and therefore was an accomplice of the seller for corroboration purposes:

“A defendant may not be convicted of any offense upon the testimony of an accomplice unsupported by corroborative evidence tending to connect the defendant with the commission of such offense” (CPL 60.22 [1]). Pursuant to CPL 60.22, an accomplice is a person who “may reasonably be considered to have participated in . . . [t]he offense charged; or . . . [a]n offense based upon the same or some of the same facts or conduct which constitute the offense charged” (CPL 60.22 [2] [emphasis added]). Notably, the definition of an accomplice for the purpose of the corroboration rule differs significantly from the definition of an accomplice for purposes of accomplice criminal liability (…compare CPL 60.22 with Penal Law § 20.00). CPL 60.22 broadens the definition of an accomplice “‘in order to provide a more equitable, operable and consistent standard for the courts in determining when the requirement of corroboration is applicable'”… . Thus, to be an accomplice for corroboration purposes, the witness “must somehow be criminally implicated and potentially subject to prosecution for the conduct or factual transaction related to the crimes for which the defendant is on trial” … .

Here, the evidence established that Lewandowski did not have a license to possess the handgun he bought from defendant. Thus, although Lewandowski could not be subject to prosecution for criminal sale of a firearm, he was potentially subject to prosecution for – and was, in fact, charged with – criminal possession of a weapon in the fourth degree since he unlawfully possessed the weapon as soon as he made the purchase (see Penal Law §§ 265.01 [1]; 265.20 [a] [3]). Just as the purchaser in a drug sale is, as a matter of law, an accomplice of the seller for corroboration purposes …, here Lewandowski was an accomplice as a matter of law with respect to defendant’s weapon sale and possession charges since he could have been (and was) charged with a crime “based upon some of the same facts or conduct” upon which the charges against defendant were based (CPL 60.22 [2] [b]…). County Court was therefore required to instruct the jury that Lewandowski was an accomplice as a matter of law as to those charges, and that defendant could not be convicted on Lewandowski’s testimony absent corroborative evidence… . People v Medeiros, 105941, 3rd Dept 4-3-13

 

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Accomplice Testimony Corroboration Insufficient Under Law Read to Jury

Even though the evidence of corroboration of accomplice testimony was sufficient under People v Reome, 15 NY3d 188 [2010], the Court of Appeals held it was not sufficient under the stricter criteria of People v Hudson, 51 NY2d 233 [1980] which Reome overruled. Because the jury was read the Hudson criteria, that criteria applied and the evidence of corroboration was not sufficient to support conviction:

Under the Hudson standard, the corroborating evidence was insufficient.  The evidence that was “independent” of the accomplice testimony in the Hudson sense proved, at most, that defendant had driven a minivan that was the same color as a car that was used to commit some of the crimes charged.  This by itself did not tend “to connect the defendant with the commission” of the crimes (CPL 60.22 [1]).  People v Rodriguez, 169, CtApp 10-17-13

 

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Evidence Needed to Corroborate Accomplice Testimony and Evidence Admissible at Restitution Hearing Explained

In affirming the conviction, the Fourth Department explained the criteria for corroboration of accomplice testimony, and the admissible evidence in a restitution hearing:

“New York’s accomplice corroboration protection requires only enough nonaccomplice evidence to assure that the accomplices have offered credible probative evidence that connects the accomplice evidence to the defendant”…. Even the most “[s]eemingly insignificant matters may harmonize with the accomplice’s narrative so as to provide the necessary corroboration” (id. [internal quotation marks omitted]).    Here, defendant’s accomplice testified that he assisted defendant in burglarizing the victim’s home and stealing the victim’s car, and that testimony was corroborated by the testimony of other witnesses that defendant was seen driving the victim’s stolen car the day after the burglary.* * *

The victim testified at the restitution hearing and provided a detailed breakdown of the value of the stolen items as well as documents establishing the cost of replacing the ignition and locks on her vehicle, which was returned to her. In addition, the amount of restitution owed to the victim’s insurance company, which was financially harmed by reimbursing the victim for a portion of the cost of changing the ignition and locks on her vehicle, was supported by the claim it submitted to the Genesee County Probation Department. It is immaterial that an employee of the insurance company did not testify at the restitution hearing because “[a]ny relevant evidence, not legally privileged, may be received [at a restitution hearing] regardless of its admissibility under the exclusionary rules of evidence” (CPL 400.30 [4] …). People v Wilson, 275, 4th Dept 7-5-13

 

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Convictions Based Entirely Upon Confession Reversed; Error to Allow Experiment in Evidence; Proof of Victim’s Helplessness Sufficient

In this sexual-crimes case, the Third Department discussed (among other issues): (1) the application of speedy trial rules when an initial indictment is dismissed and then charges stemming from the same incident are brought more than six months later in a second indictment; (2) the sufficiency of proof of the victim’s helplessness (intoxication); and (3) the inadmissibility of an experiment (opening a door with a credit card to demonstrate how defendant could have entered the house) which had nothing to do with the trial evidence.  All but two of the convictions were affirmed.  In reversing the two convictions which were based entirely on the defendant’s confession, the Third Department wrote:

We find that defendant’s convictions of criminal sexual act in the first degree must  be  reversed. “A person may not be convicted of any offense solely upon evidence of a confession or admission made by him [or her] without additional proof that the offense charged  has been  committed”  (CPL 60.50). While this additional proof “need  not corroborate every detail of the confession” …, both  of defendant’s criminal sexual act convictions were based solely upon his uncorroborated admissions that he  performed  oral sex on the victim. Defendant’s presence at the scene did not provide the necessary corroboration because the issue is not his identity or connection to the crime but, instead, whether  the crimes  occurred  at all. As there was no corroborating proof “of whatever weight,” these charges must be dismissed… . People v Bjork, 104014, 3rd Dept, 4-25-13

 

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Corroborative Evidence for Confession—Strategy Behind Not Requesting Lesser Included Offenses and Severance

In an opinion by Judge Graffeo, in addressing the appellant’s claim of ineffective assistance of counsel, the strategic reasons for not requesting that the jury be charged with lesser included offenses and for not requesting a severance when culpability is arguably unequal were discussed.  In addition, the Court of Appeals addressed the level of corroborative evidence needed to allow into evidence an admission/confession made by the defendant (Criminal Procedure Law 60.50). The judgment of conviction was affirmed  People v McGee, No. 30, CtApp 3-21-13

 

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