People of State v. Lopez

• Decision Date: 26 September 2011
• Parties: PEOPLE of the State of New Yorkv.Luis A. LOPEZ, Defendant.
• Court: New York Criminal Court

34 Misc.3d 476
931 N.Y.S.2d 478
2011 N.Y. Slip Op. 21366

PEOPLE of the State of New York
v.
Luis A. LOPEZ, Defendant.

Criminal Court, City of New York,Richmond County.

Sept. 26, 2011.

[931 N.Y.S.2d 479]

Gregory Coleman of the Legal Aid Society, Staten Island, for Defendant.Assistant District Attorney, Matthew W. Ross, Office of the Richmond County District Attorney, Daniel M. Donovan, District Attorney, for People of the State of New York.MARIO F. MATTEI, J.

“We have firmly held that the failure of the Legislature to include a substantive, significant prescription in a statute is a strong indication that its exclusion was intended” ( People v. Finnegan, 85 N.Y.2d 53, 623 N.Y.S.2d 546, 647 N.E.2d 758 [1995] ).

In the case before the Court the defendant has been arrested and charged with two counts of Operating a Motor Vehicle while Intoxicated (VTL §§ 1192(2) & (3)) and one count of Operating a Motor Vehicle While Impaired (VTL § 1192(1)).

The defendant contends that the accusatory instrument should be dismissed as facially insufficient pursuant to CPL §§ 170.30 and 100.40, for lack of corroboration, because, “although CPL § 60.50 applies to trials, the reasoning set forth in the statute is clearly applicable to misdemeanor complaints and informations.”

The Court rejects this argument as having no basis in the law and as an unnecessary

[931 N.Y.S.2d 480]

intrusion into the province of the legislature.

The accusatory instrument indicates that the defendant was standing next to a vehicle, that he appeared to be intoxicated in that he had watery eyes, slurred speech, an odor of alcohol on his breath and was unsteady on his feet. It also indicates that the defendant admitted driving the vehicle. A subsequent breathalyzer test indicated that the defendant's blood alcohol content was .141.

Defendant claims that the instrument is facially insufficient because CPL § 60.50 requires that the admission be corroborated by other evidence.

“Statutory construction begins with attempting to effectuate the intent of the Legislature, and the starting place for discerning legislative intent is the plain meaning of the statutory text” ( People ex rel. Pughe v. Parrott, 302 A.D.2d 823, 758 N.Y.S.2d 404 [3rd Dept, 2003] ).

CPL § 60.50 is contained in Article 60 of the Criminal Procedure Law which is entitled “Rules of Evidence And Related Matters”. This Article is distinct from Article 100 which is entitled “Commencement of Action in Local Criminal Court–Local Criminal Court Accusatory Instruments”. The plain language of CPL 60.50—“ 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 ”—makes it applicable to convictions. This is the clear meaning of the text. It is not ambiguous. This should for all practical purposes end the discussion. “As in all statutory construction cases, we begin with the language of the statute. The first step is to determine whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case.' The inquiry ceases if the language is unambiguous' and the statutory scheme is coherent and consistent' ” ( Barnhart v. Sigmon Coal Company, Inc., 534 U.S. 438, 450, 122 S.Ct. 941, 151 L.Ed.2d 908 [2002](internal citations omitted)). “It is an elementary principle of statutory construction that courts may only look behind the words of a statute when the law itself is doubtful or ambiguous” ( Finger Lakes Racing Association v. New York State Racing & Wagering Board, 45 N.Y.2d 471, 410 N.Y.S.2d 268, 382 N.E.2d 1131 [1978] ). Based on these basic tenets of statutory construction and legal precedent as to how to apply it, since it is undisputed that the text of CPL § 60.50 applies to “convictions” there is no judicial authority or legitimate purpose in trying to determine the “reasoning” behind the statute or trying to apply it to situations in which it does not specifically apply. But even if that argument is pursued, and the “reasoning” behind CPL § 60.50 is examined, defendant's argument clearly fails.

CPL 60.50 is an evidentiary rule as are the other sections of Article 60. It is not a rule of form and content. “The purpose of this rule is to guard against the possibility that a defendant may be convicted and jailed for a crime that never occurred ... It is necessary for the prosecution to come forward with additional proof that the offense charged has been committed ... (CPL 60.50)” ( People v. Daniels, 37 N.Y.2d 624 at 629, 376 N.Y.S.2d 436, 339 N.E.2d 139 [1975], emphasis added, internal citations omitted). It is designed to prevent conviction in the absence of proof at trial that a crime had occurred ( People v. Murray, 40 N.Y.2d 327, 331, 386 N.Y.S.2d 691, 353 N.E.2d 605 [1976], emphasis added).

The Court has considered and finds unpersuasive the authorities cited by the defense in support of the motion including,

[931 N.Y.S.2d 481]

inter alia, People v. Miedema, 24 Misc.3d 132(A), 2009 WL 1926669 [App. Term, 9th & 10th Jud. Dists. 2009]; People v. Gundarev, 25 Misc.3d 1204(A), 2009 N.Y. Slip Op. 51972(U) at 5, 2009 WL 3028941, [Crim. Ct., Kings County 2009]; People v. Alvarez, 141 Misc.2d 686, 691, 534 N.Y.S.2d 90 [Crim. Ct., New York County 1988]; People v. Ross, 12 Misc.3d 755, 814 N.Y.S.2d 861 [Crim. Ct., Kings County, 2006]; and People v. Dolan, 1 Misc.3d 32, 770 N.Y.S.2d 558 [App. Term, 1st Dept.2003] and People v. Walker, 21 Misc.3d 748, 865 N.Y.S.2d 530 [Crim. Ct., Kings County, 2008] in large part because the decisions have no legal basis for the action they propose and thus extending the corroboration rule to the sufficiency of informations is an unwarranted and legally unsupported judicial expansion of the pleading requirements.

These decisions and the reasoning behind them invoke a degree of review for confessions which is non-existent for the other provisions of Article 60 which may be alleged in an accusatory instrument.

For instance, when the People allege that an eyewitness observed the defendant commit a crime they need not plead, for the instrument to be facially sufficient, that the identification of the defendant as the perpetrator was in accord with either CPL § 60.25 or CPL § 60.30; there is no requirement that the People plead the corroboration for an accomplice (CPL § 60.22); there is no requirement that the People plead the voluntariness of a statement made by the defendant (CPL § 60.45). Also, the People need not plead or prove the testimonial capacity of children pursuant to CPL § 60.20 in a misdemeanor information since “both the statutory language and the case law make clear that section 60.20 applies only to a witness actually testifying under oath in a criminal proceeding” ( People v. Hetrick, 80 N.Y.2d 344, 590 N.Y.S.2d 183, 604 N.E.2d 732 [1992] ). These rules of evidence apply to the ultimate admission, acceptance and sufficiency of evidence at trial, and not to the manner in which an indictment or other instrument is drafted. CPL § 60.50 should be viewed in the same manner. CPL § 60.50 specifically applies to convictions and, by legislative amendment, to indictments (CPL § 190.65). There is no provision in either section applying it to criminal court informations.

The requirement of corroboration was extended to the sufficiency of indictments by an amendment to CPL § 190.65 and it is argued by the defense, and authorities cited in support of its position, that parity of reasoning requires its application to misdemeanor informations. In this vain the defendant relies on ...