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Corroboration

February 13, 2008

Last issue, we reviewed Vehicle and Traffic Law '1192(2) suspension pending prosecution.  You will recall that before the arraigning court can suspend the license of a motorist who fails a chemical test it "must find that the accusatory instrument conforms to the requirements of section 100.40 Of the Criminal Procedure Law."  This requirement will push to the forefront the well‑known but little understood requirement of corroboration and may prove dispositive on the issue of suspension when the arrest occurs following a single car accident or when the motorist is found sleeping behind the wheel.  Both commonly encountered scenarios involve situations where the motorist's statement that he or she was operating may be all there is on the face of the pleadings to establish operation.

Corroboration is created by CPL '60.50.  This provision sets forth that: "A person may not be convicted of any offense solely upon evidence of a confession or admission made by him without additional proof that the offense charged has been committed."

This section, of course, says that a person cannot be "convicted of any offense . . .  ."  How then can it have any bearing on a local criminal court accusatory instrument?

The answer to this question is not to be found in the Criminal Procedure Law.  Quite the contrary, CPL Article 100 specifically avoids using the term `legally sufficient evidence' as found in CPL '190.65.  Requiring corroboration in an information is almost entirely a creature of the courts.


While an admission of the defendant is clearly hearsay, i.e.:, an out of court statement offered to prove the fact alleged therein (see, People v. Flushing Hospital, 122 Misc2d 260, 471 NYS2d 745; Richardson, Evidence, (10th [Prince] Edition) ''209, 231 and 540), the fact that it is hearsay will not compel a finding that the accusatory instrument is insufficient, since this requirement has been construed to permit admissible hearsay.  To hold otherwise would cause "the absurd result that the rules for informations would be more stringent than the rules for trials" (People v. Polito, 128 Misc2d 71, 488 NYS2d 593; see also, People v. Fields, 74 Misc2d 109, 344 NYS2d 413; People v. Conoscenti, 83 Misc2d 842, 373 NYS2d 443; People v. Haskins, 107 Misc2d 480, 435 NYS2d 261).

Apart from its "admissible" character however, we are still left with the question of corroboration.  In other words, once we decide that the admission may be used in the information, must the People see to it that it is corroborated lest they risk dismissal?

In  Matter of Rodney J., (1985, 1st Dept) 108 AD2d 307, 489 NYS2d 160, a delinquency proceeding, a deposition from the respondent making certain incriminating admissions was attached to the petition.  The respondent moved against the petition asserting that it was insufficient in the absence of corroboration.


While at first glance it seems that a petition filed under the Family Court Act could have little if any relevance at all upon the sufficiency of a local criminal court information, one must turn to Family Court Act '311.2.  This section provides: "A petition, or a count thereof, is sufficient on its face when:   1. it substantially conforms to the requirements prescribed in section 311.1; and 2. the allegations of the factual part of the petition, together with those of any supporting depositions which may accompany it, provide reasonable cause to believe that the respondent committed the crime or crimes charged; and 3. non‑hearsay allegations of the factual part of the petition or of any supporting depositions establish, if true, every element of each crime charged and the respondent's commission thereof."  If this sounds familiar, it should, it is nearly identical to CPL '100.40 ["An information, or a count thereof, is sufficient on its face when: (a) It substantially conforms to the requirements prescribed in section 100.15; and (b) The allegations of the factual part of the information, together with those of any supporting depositions which may accompany it, provide reasonable cause to believe that the defendant committed the offense charged in the accusatory part of the information; and (c) Non‑hearsay allegations of the factual part of the information and/or of any supporting depositions establish, if true, every element of the offense charged and the defendant's commission thereof"].

Returning to Rodney J., the Court extensively reviewed the history of Family Court Act '311.2, its marked similarity to CPL '100.40, and the rule that "judicial interpretations of appropriate provisions of the CPL may be considered 'to the extent that such interpretations may assist the court in interpreting similar provisions of [the Family Court Act].'"  Concluding that corroboration was required, the First Department held: "Despite the lack of an express statutory requirement that a Family Court petition or any supporting deposition set forth the corroboration necessary to sustain a conviction, we conclude that the requisite corroboration of an out‑of‑court confession must be alleged in a Family Court delinquency petition or the supporting depositions since these documents represent the only formal statement of charges against a respondent and should be based on competent legal evidence sufficient to establish, if believed, that the respondent committed the acts charged."  When one considers that Family Court Act '311.2, and CPL '100.40 are virtually identical, this is strong language indeed.


In People v. Kaminiski, (1989, NYC Crim Ct) 143 Misc2d 1089, 542 NYS2d 923, the factual portion of the information set forth that: "On January 18, 1989, at about 2245 hours at W. 203rd Street and 10th Avenue, in the County . . . of New York, . . . deponent [police officer] observed defendant standing near a 1982 Mercury.  Deponent further states that she is informed by defendant that defendant was operating the above‑mentioned car when a tow truck had collided with defendant's car.  Deponent observed that the defendant had an unsteady and abrupt manner, had watery and bloodshot eyes and was talking incessantly.  Deponent is further informed by defendant that defendant drank two glasses of champagne before leaving his office.  Deponent further states that [s]he is informed by P.O. Michael Shea . . . that informant administered a test to determine the defendant's blood alcohol content and such test indicated . . . a blood alcohol content of .14 of one percentum[.]"  The defense contended that as an admission, the defendant's statement was hearsay and therefore failed to satisfy the "non-hearsay" requirement of CPL '100.40.

Readily dismissing this contention, the Court, on its own motion, turned to the issue of "whether an information, to be facially sufficient, must comply with the mandate of CPL '60.50 requiring that there be proof, independent of any admissions by a defendant, that the crime charged was actually committed[.]"

Finding compliance essential, the Court first observed that it is well settled that the corroboration requirement created by CPL '60.50 has been extended to indictments and Family Court juvenile delinquency petitions.  Thereafter, the Court turned to People v. Alvarez, (1988, NYC Crim Ct) 141 Misc2d 686, 534 NYS2d 90.


In Alvarez, the Court recognized "the general distrust of extrajudicial confessions stemming from the possibilities that a confession may have been erroneously reported or construed * * * involuntarily made * * * mistaken as to law or fact, or falsely volunteered by an insane or mentally disturbed individual" (Alvarez at 689, citing, People v. Murray, (1976) 40 NY2d 327, 331‑332, 386 NYS2d 691).  It also took note of the then recent declaration of the Court of Appeals in People v. Alejandro, (1987) 70 NY2d 133, 517 NYS2d 927, that the prima facie requirement for a misdemeanor information must be strictly followed.  Accordingly, Alvarez held: "corroboration that a crime has been committed is also required for a misdemeanor information where essential elements of the crime charged are supported solely by a defendant's own admissions" (Alvarez, at 691).

Agreeing with Alvarez, Kaminiski found: "[a]s with an indictment in a felony prosecution, or a petition in a Family Court juvenile delinquency matter, an information is the "instrument of ultimate prosecution" in a misdemeanor case and, like an indictment or Family Court delinquency petition, must be premised on a showing of a legally sufficient, or "prima facie," case against the defendant.  As such, this court can conceive of no justification in law or logic for requiring the corroboration of a defendant's otherwise unsupported confession for Grand Jury indictments and juvenile delinquency petitions, while dispensing with this requirement for misdemeanor informations" (Kaminiski at 1092).

A similar conclusion was reached in People v. Mauro, (1990, NYC Crim Ct) 147 Misc2d 381, 555 NYS2d 533.  In Mauro, a supporting deposition alleged, "Deponent [police officer] is informed by defendant that she has no license to practice massage [and] deponent observed no Department of Education license to practice massage posted at the above premises, and neither defendant nor [other person held out as able to perform the massage] produced one."  Finding that the corroboration  requirement applied despite the lack of explicit statutory authority, the Court held: "although there is no express statutory requirement that informations or their supporting depositions contain an allegation of such corroborative evidence for an information to be legally sufficient, the reasoning of the Appellate Division in Matter of Rodney J., requires that this court impose such a requirement (Mauro, at 388).

As might be expected, Alvarez and Kaminiski have not been universally received.


In People v. McKinney, (1989, NYC Crim Ct) 145 Misc2d 460,  546 NYS2d 927, the Court observed that Judge Bellacosa in his 1983 Supplementary Practice Commentary to McKinney's CPL '190.65 set forth that the 1983 amendment requiring corroboration in the Grand Jury was unnecessary and did not change what was already the law.  Since prior law required "legally sufficient evidence" to indict, and CPL '70.10(1) says that "evidence is not legally sufficient when corroboration required by law is absent," Bellacosa concluded that the amendment was merely intended to clarify existing law requiring corroboration to indict in view of some conflicting lower court decisions.

In contrast, the McKinney court noted that "CPL '100.40(1) does not use the term "legally sufficient evidence" as a criterion for a facially sufficient information.  Instead, CPL '100.40(1)(c) requires an information containing non‑hearsay allegations establishing, if true, every element of the offense charged and the defendant's commission thereof."  Of significance to the McKinney court, was that the 1968 draft version of what is now CPL '100.40(1)(c) used the term "legally sufficient evidence."  Opining that such a definition "would have incorporated the corroboration requirement of CPL '70.10(1)" the Court saw the omission of this term from the final version of the act as an indication by the legislature not to apply the corroboration requirement to misdemeanor informations.  Therefore, the McKinney court concluded: "By not using the term "legally sufficient evidence" in CPL '100.40(1)(c), as was done in CPL '190.65, the Legislature established different evidentiary standards for informations and indictments, requiring corroboration for indictments but not for informations."


Whereas the Appellate Division in Rodney J. and the Court in Kaminiski saw in the amendment of CPL '190.65 an intent to apply the corroboration requirement to criminal pleadings, both misdemeanor and otherwise, the McKinney court came to quite the opposite conclusion: "the failure in 1983 to add a corroboration requirement to CPL '100.40(1)(c) was not an oversight but, entirely consistent with the limited purpose of the 1983 amendment.  In fact, where the Legislature has amended a specified statute, the failure to similarly amend another statute indicates that the amendment was intended only to cover the specified statute" (McKinney at 463, citing, McKinney's Statutes '74).  Finding  a "court does not have the power to re‑write these requirements by deeming the distinction an 'oversight'," the defendant's motion to dismiss was denied.

Recent pronouncements on this issue are siding with the position that corroboration must be shown.  In People v. Daisley, NYLJ July 9, 1992, p. 27, col. 3, the defendant was arrested for Driving While Intoxicated after he was viewed at the scene of a crash.  Operation was not observed but was set out by means of an uncorroborated admission contained in the information.  Reviewing Kaminiski, McKinney, Mauro, Rodney J. and Alvarez, the Court refused to accept what it characterized as the "impressive analysis" of McKinney and was firmly of the opinion that corroboration was required: "In Matter of Rodney J., the Appellate Division, First Department, ruled that corroboration was a necessary element of any legally sufficient juvenile delinquency petition.  The language of the Family Court Act in '311.2 is substantially identical to the language of CPL '100.40(1)(c).  Moreover, '344.2(3) of the Family Court Act contains the same corroboration standard as in '60.50 of the CPL."


Furthermore, and perhaps most persuasive, the Daisley court turned to the decision of the Court of Appeals in People v. Alejandro (supra).  "The Court cited, with approval the 1968 report of the Temporary Commission on the Revision of the Penal Law and Criminal Codes that equated a 'prima facie' case with a 'legally sufficient' case.  The Court concluded by stating that a defendant, charged with a misdemeanor, must be given 'an assurance that the information contains allegations establishing a legally sufficient case.'"  Applying what it characterized as the "overaching interpretation" of Alejandro, the Daisley court found that "to establish trial jurisdiction, the defendant must be charged with a misdemeanor based on non‑hearsay allegations which satisfy the requirement of a 'prima facie' or 'legally sufficient' case as defined in CPL '70.10(1)."

Nor was the Daisley court particularly distressed by the failure of the legislature to specifically mandate corroboration in the pleading of misdemeanors.  "Although the 1983 amendment to '70.10(1), which mandated corroboration, was specifically made to obviate an interpretation problem concerning the legal sufficiency of the evidence to support an indictment, the Alejandro decision has also made 'legal sufficiency' the test for a facially sufficient information.  The rationale underlying the decision in Alejandro is that a defendant, charged with a misdemeanor, must have equal procedural footing with a defendant who has been indicted for a felony.  In order to achieve that desired symmetry, the information must, on its face, demonstrate 'legally sufficient' evidence as that term is defined in '70.10(1) of the CPL.  Only by insisting on adherence to the 'legally sufficient' standard can an information serve the jurisdictional purposes assigned to it by the Court of Appeals."


Most recently, a court has had an opportunity to return to this complex and all important front.  In People v. Michael Green, NYLJ, August 18, 1994, p. 21, The Defendant was charged with violations of Vehicle and Traffic Law ''1192(2) and 1193(3).  Operation was alleged in the information solely by means of the defendant's admission.  Quickly dispensing with objections relating to the hearsay character of the admission, the Court turned to the issue of corroboration.  Taking note of the conflict that currently exists on this issue, the Kings County Criminal Court (Rooney, J.) took note that although the Second Department is yet to write on the issue, the First Department decision in Matter of Rodney J. has been repeatedly cited as authority on the hearsay aspect.  Therefore, in light of that decision, the Green court found "corroboration of defendant's admission must be alleged in the misdemeanor information since this instrument is the only formal statement of charges against defendant and should be based on evidence sufficient to establish, if believed, defendant's guilt (Green, supra., [parenthetical material omitted]).

Should corroboration be alleged in an information?  More to the point, should a Vehicle and Traffic Law '1192(2) suspension pending prosecution be had when corroboration is missing?              Resolution of this issue depends on the weight which one ascribes to certain pronouncements in People v. Alejandro, (supra).  In describing the character of the allegations that must be set forth in an information, the Court of Appeals unquestionably maintained that the import of CPL '100.40(1)(c) was to create what it called an "additional showing of a prima facie case" for informations (Alejandro, at 137).  When setting out the parameters of a "prima facie case" the Court, citing the 1968 Report of the Temporary Commission on the Revision of the Penal Law and Criminal Code, unquestionably equated "prima facie" with "legally sufficient."  In addition, when setting out the reason for this stringent requirement the Court identified "a vital legislative concern that a defendant‑‑who, under the Criminal Procedure Law, can be prosecuted on the basis of an information alone‑‑must have, at least, an assurance that the information contains allegations establishing a legally sufficient case" (Alejandro, at 139).  "Legally sufficient," as described by CPL '70.10, specifically sets forth that "evidence is not legally sufficient when corroboration required by law is absent."  Therefore, since Alejandro requires that an information contain "legally sufficient evidence" and since "legally sufficient evidence" includes corroboration, our opinion is that to be sufficient an element of a crime that is established in an information by means of the defendant's admission must be corroborated.

What, however, is corroboration?


In a nutshell, not much.  Described in Daisley and elsewhere as "a slender reed" (See, People v. Groff (1987) 71 NY2d 101, 107, 524 NYS2d 13 and People v. Mikuszewski (1989) 73 NY2d 407, 415, 541 NYS2d 196), "corroboration need only establish 'that a crime was committed by someone'" (People v. Daniels (1975) 37 NY2d 624, 629, 376 NYS2d 436).

In the area of alcohol influenced operating offenses, corroboration is best epitomized by People v. Booden (1987) 69 NY2d 185, 513 NYS2d 87).  In Booden, a State Trooper came across a one car accident involving a vehicle owned by the defendant's father.  Next to the wreck stood the defendant who smelled of alcohol and exhibited traditional symptoms of being intoxicated such as slurred speech and bloodshot eyes.  Convicted after trial, he alleged that there was insufficient corroboration for his admission that he had been operating the motor vehicle prior to the collision.

In reversing the county court, the Court of Appeals, in an opinion by Judge Simons, noted that the admission need only be supported by proof of the corpus delicti; that is, a showing that a crime occurred.  Finding that the trooper's initial observations were sufficient, the conviction was reinstated.


In People v. Cook, (1993, 4th Dept) 191 AD2d 993, 595 NYS2d 163, a van was abandoned after it apparently slid through a snow covered intersection.  Sometime later a deputy was informed that an individual was in a mini-mart some distance away making a phone call concerning an accident.  Upon being questioned, the defendant acknowledged being "involved in an accident" and appeared noticeably intoxicated.  Of importance, approximately twenty-five feet of footprints were found at the scene of the accident and the vehicle was registered in the name of the defendant's wife.  Finding the defendant's admissions to be sufficiently corroborated, the Fourth Department observed: "The vehicle owned by defendant's wife had struck guardrails on both sides of the roadway before coming to rest against one of them; the physical evidence at the scene indicated that only one person was in the vehicle at the time of the accident and defendant admitted that he had been in an accident, that the vehicle slid through the intersection, and that he was alone when the accident occurred."



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