People v. Alvarez
| Decision Date | 31 October 1988 |
| Docket Number | AP-17 |
| Citation | 141 Misc.2d 686,534 N.Y.S.2d 90 |
| Parties | PEOPLE of the State of New York v. Andrew ALVAREZ, Defendant |
| Court | New York City Court |
Bernard Bier, New York City, for defendant.
Robert M. Morgenthau, Dist. Atty. (Mary P. Bausbacher, New York City, of counsel), for the People.
This case involves a prosecution based solely upon statemen attributed to the defendant by the deponent, a police officer. The defendant is charged with Unauthorized Use of a Vehicle, PL 165.05(1), and
Criminal Possession of Stolen Property, PL 165.40. He moves to dismiss the charges for facial insufficiency, arguing that absent his statements there are no facts to support that a crime has been committed.
The information 1 reads in pertinent part as follows:
[D]eponent observed defendant driving a[n automobile] ... and that defendant stated to deponent (emphasis added) that
Further, deponent is informed by defendant (emphasis added) that defendant did not have permission or authority to take, operate, exercise control over, ride in or otherwise use said vehicle.
1. Are the defendant's alleged statements non-hearsay as required by CPL 100.40(1)(c) and 100.15(3)?
2. Is the element of lack of permission and authority sufficiently supported by the facts?
3. Must the existence of a crime be corroborated?
HEARSAY
To be facially sufficient a misdemeanor information must set forth non-hearsay facts which "establish, if true, every element of the offense charged". CPL 100.40(1)(c); 100.15(3). People v. Alejandro, 70 N.Y.2d 133, 136, 517 N.Y.S.2d 927, 511 N.E.2d 71.
The only "facts" given in this information to support the essential elements of the crime are the defendant's alleged statements to an arresting police officer. These statements are hearsay, albeit at trial they would be admissible as an exception to the hearsay rule. Richardson, Evidence, Section 540 (10th ed.). Under a strict interpretation of CPL 100.40(1)(c), they would not satisfy the requirement that each element of the crime be supported by "non-hearsay" facts. People v. Polito, 128 Misc.2d 71, 488 N.Y.S.2d 593 (Rochester City Ct.1985).
However, the "non-hearsay" required in CPL 100.40 has generally been construed to mean any evidence that would be admissible at trial. Matter of Rodney J., 108 A.D.2d 307, 311, 489 N.Y.S.2d 160 (1st Dept.1985). See, People v. Fields, 74 Misc.2d 109, 344 N.Y.S.2d 413 (Dist.Ct., Nassau Co.1973) (police department record of stolen car sufficient to support allegation of lack of consent of owner where record admissible under business record exception to hearsay rule); People v. Conoscenti, 83 Misc.2d 842, 373 N.Y.S.2d 443 (Dist.Ct., Suffolk Co.1975); People v. Caraballo, 135 Misc.2d 536, 515 N.Y.S.2d 965 (Crim.Ct., Kings Co.1987) (defendant's admission of lack of authority and permission sufficient to support petit larceny and unauthorized use of a motor vehicle where supporting affidavit from owner was not filed); People v. Polito, supra (). But see, People v. Flushing Hospital, 122 Misc.2d 260, 471 N.Y.S.2d 745 (Crim.Ct. Queens Co.1983) (information based on statements allegedly made by an agent of defendant facially insufficient).
There are no appellate decisions precisely on point. However, the Appellate Division First Department in deciding a similar issue based on the Family Court Act cited Fields and Conoscenti with approval, noting in the language of Fields that not allowing admissible hearsay to form the Unlike those cases involving written documents which more readily lend themselves to a determination of admissibility on their face at the accusatory stage, the use of a defendant's admissions as evidence against him poses complex issues of voluntariness, waiver, right to counsel and other constitution rights. The Court cannot rule on the admissibility of such hearsay on the face of the accusatory instrument but must often await the determination of motions and suppression hearings. (See generally, People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179; Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694).
factual basis of a misdemeanor information presents "the absurd result that the rules of evidence as applied to an information are more stringent than those applicable to trials and hearings." Matter of Rodney J., supra, 108 A.D.2d at 311, 489 N.Y.S.2d 160. The First Department held that a juvenile's statement was sufficient to satisfy the nonhearsay requirement of Family Court Act statute, FCA 311.2, which parallels CPL 100.40(1)(c). Id
To allow a police officer's statement of what a defendant is alleged to have said to serve as the only basis for an on-going prosecution opens the door to potential abuse. Nevertheless, despite my own reservations concerning the practice of construing "nonhearsay" to mean "admissible hearsay", the approval given it by the Appellate Division First Department mandates my finding that the defendant's statements, if admissible at trial, are "non-hearsay" for the purposes of CPL 100.40(1)(c) and 100.15(3).
The statements attributed to the defendant in the first paragraph of the accusatory instrument (quoted above) fail to support the allegation that the defendant acted without the consent of the owner. Lack of ownership is not synonymous with lack of consent.
The second paragraph of the accusatory instrument (quoted above) appears to be merely an inartful attempt to track the statute by stating the deponent's conclusion, particularly since the People's papers in opposition to the motion to dismiss claim no notice of any statement by the defendant other than those quoted in the first paragraph. On the other hand, if this paragraph does refer to additional statements of the defendant, these statements may be sufficient to support the element of lack of consent. See, People v. Caraballo, supra. However, in light of the following, it is unnecessary to resolve this ambiguity.
Given that the accusatory instrument has been deemed an information and does not need corroboration from the owner of the car as to the elements of the crime leaves the question of whether it must present facts, other than a defendant's statements, which corroborate that a crime has actually been committed.
There are no controlling decisions directly on this question, although corroboration of a defendant's statement that a crime has been committed has been required for felony indictmen (CPL 190.65) and Family Court delinquency petitions (Matter of Rodney J., supra.)
In analyzing whether an individual can be prosecuted for a misdemeanor on admissions alone, it is essential to bear in mind that it is repugnant to our notions of criminal justice to convict people solely on their own statements that they have committed a crime. CPL Section 60.50 holds that no one may "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." Clearly, absent any evidence other than that presented in this information, the defendant here could not be convicted at trial. CPL 60.50; People v. Ruckdeschel, 51 A.D.2d 861, 380 N.Y.S.2d 163 (4th Dep't 1976) ().
While CPL 60.50 speaks to the quantum of proof required for a conviction, a 1983 amendment to the CPL makes it clear that The rationale of CPL 60.50 is "the general distrust of extrajudicial confessions stemming from the possibility 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." People v. Murray, 40 N.Y.2d 327, 331-2, 386 N.Y.S.2d 691, 353 N.E.2d 605 (citations omitted). These dangers are present at the accusatory stage whether the crime charged is a misdemeanor or a felony.
corroboration of the commission of a crime is also mandatory at the accusatory stage in felony prosecutions. CPL 190.65. This amendment resolved a conflict among the appellate divisions as to whether such corroboration was...
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