People v. Berger

• Citation: 418 N.E.2d 1291,437 N.Y.S.2d 272,52 N.Y.2d 214
• Parties: , 418 N.E.2d 1291 The PEOPLE of the State of New York, Appellant, v. Raphael BERGER, Respondent.
• Decision Date: 17 February 1981
• Court: New York Court of Appeals

Page 272

437 N.Y.S.2d 272

52 N.Y.2d 214, 418 N.E.2d 1291

The PEOPLE of the State of New York, Appellant, v. Raphael BERGER, Respondent.

Court of Appeals of New York.

Feb. 17, 1981.

Eugene Gold, Dist. Atty. (Beth S. Lasky and Sharen Litwin, Asst. Dist. Attys., of counsel), for appellant

John Joseph Sutter and Larry Dorman, Mineola, for respondent.

OPINION OF THE COURT

COOKE, Chief Judge.

Defendant was convicted of criminal solicitation of perjury based solely upon the testimony of Vivian Gambino, the alleged solicitee. The issue is whether that testimony required corroboration either because Mrs. Gambino was the solicitee, or because she was an accomplice, as a matter of law.

Defendant, Raphael Berger, was indicted in Kings County and charged with three counts of grand larceny in the second degree and one count of criminal solicitation in the second degree. The larceny charges stem from an alleged fraudulent loan scheme. It was charged that defendant solicited other persons to submit falsified loan applications, the proceeds of which he would ultimately receive and retain. The solicitation charge was based upon an alleged conversation with one of the loan applicants, Vivian Gambino, in which defendant urged her to commit perjury before a Grand Jury investigating the loans. Mrs. Gambino did in fact appear before the Grand Jury and concededly lied in her testimony. A short time later, after being warned that she was in danger of being prosecuted, Mrs. Gambino returned to the Grand Jury and recanted her false testimony.

After a nonjury trial, the court acquitted defendant of the larceny charges. Although the Trial Judge acknowledged that the only evidence of the solicitation was the testimony of Mrs. Gambino, he nonetheless found defendant guilty of criminal solicitation thus rejecting the argument that corroboration was required. A unanimous Appellate Division, 70 A.D.2d 622, 416 N.Y.S.2d 312 reversed and dismissed the indictment. The Appellate Division held that corroboration was necessary to establish criminal solicitation of perjury, inasmuch as prior law provided that the suborner and subornee of perjury were accomplices. There should be an affirmance, but for reasons which differ somewhat from those of the Appellate Division.

At commonlaw, it was the general rule that "the testimony of a single witness, no matter what the issue or who the person, may legally suffice as evidence upon which the jury may found a verdict " (7 Wigmore, Evidence (3d ed.), § 2034, at p. 259 (emphasis in original); see also, People v. Gibson, 301 N.Y. 244, 245-246, 93 N.E.2d 827). Indeed, it was this rule which served, in part, to distinguish trials in common-law courts from trials in civil and ecclesiastical courts (id., § 2032). For, under the civil law, the process of proof rested on a numerical system generally requiring more than one witness. So complete was the common law's rejection of the civil law approach that early judicial decisions carved out but one exception to the single witness rule: corroboration was necessary in criminal prosecutions for perjury (id., § 2040). ¹ In more recent times, corroboration rules have been established, usually by statute, as part of the proof for certain crimes (e. g., Penal Law, § 210.50 (perjury)) or as a safeguard when particular categories of witnesses testify (e. g., CPL 60.20 (testimony of unsworn witness less than 12 years old); CPL 60.22 (accomplice testimony)). Thus, a court must consider both the crime charged and the particular class of witness testifying to determine whether corroboration is necessary.

As we have had occasion to note, the Legislature did not impose a corroboration requirement for the crime of criminal solicitation (People v. Lubow, 29 N.Y.2d 58, 65- 66, 323 N.Y.S.2d 829, 272 N.E.2d 331). And, it would be inappropriate for us to engraft such a rule into that statute, absent some important justification. ² None is apparent in these circumstances. While it is true that inchoate crimes such as solicitation might present special problems of proof and credibility (People v. Lubow, 29 N.Y.2d 58, 65-66, 323 N.Y.S.2d 829, 272 N.E.2d 331, supra; see, also, Wechsler-Jones-Korn, Treatment of Inchoate Crimes in the Model Penal Code: Attempt, Solicitation and Conspiracy, 61 Col.L.Rev. 571, 623), these differ in degree, but not in kind, from the general difficulties encountered in the fact-finding process. Courts are daily called upon to resolve questions of proof and credibility, and the single witness rule has generally proved adequate for this purpose. There is no particular reason to believe, if care is taken in fact-finding and appellate fact review, that the courts will be unable to perform their historic function in cases involving the crime of solicitation (see People v. Lubow, supra, at pp. 65-66, 323 N.Y.S.2d 829, 272 N.E.2d 331). Thus, there is no basis for requiring corroboration merely because criminal solicitation is charged.

In the present case, however, this does not end the matter. Although proof of criminal solicitation itself need not be corroborated, other rules requiring corroboration of the testimony of particular categories of witnesses must be examined. Here, defendant urges that the witness Mrs. Gambino, was an accomplice as a matter of law. This position is not without merit.

Traditionally, the law has viewed accomplice testimony with a suspicious eye (see, e. g., People v. Dixon, 231 N.Y. 111, 116, 131 N.E. 752; People v. Everhardt, 104 N.Y. 591, 594, 11 N.E. 62; People v. Doyle, 21 N.Y. 578, 579-580). While such evidence is competent, ³ it may often lack the inherent trustworthiness of the testimony of a disinterested witness ( e. g., People v. Duncan, 46 N.Y.2d 74, 79, 412 N.Y.S.2d 833, 385 N.E.2d 572; 7 Wigmore, Evidence (3d ed.), § 2057, at p. 322). This is so because one who concedes his or her own guilt of a crime and testifies against another might often be doing so to curry favor with the authorities. Courts have thus exercised the utmost caution in dealing with accomplice testimony, especially when the testimony is exchanged for immunity or other favorable prosecutorial consideration (e. g., People v. Duncan, supra; People v. Doyle, 21 N.Y. 578, 579, supra). And, many years ago the Legislature saw fit to provide that the uncorroborated testimony of an accomplice would not suffice for a conviction (L.1882, ch. 360, § 1 (amdg. Code Crim.Pro. § 399)).

The modern version of the accomplice corroboration statute is CPL 60.22. That section requires corroborative evidence "tending to connect the defendant with the commission of" the offense. For purposes of the corroboration rule, an accomplice is defined as a witness who, according to the evidence adduced during the trial, "may reasonably be considered to have participated in: (a) The offense charged; or (b) An offense based upon the same or some of the same facts or conduct which constitute the offense charged" (CPL 60.22, subd. 2).

It is important to emphasize that the corroboration statute's definition of an accomplice differs significantly from the Penal Law section that provides for accomplice criminal liability (Penal Law, § 20.00). Indeed, this court has previously recognized that CPL 60.22 broadened 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' " (People v. Basch, 36 N.Y.2d 154, 157, 365 N.Y.S.2d 836, 325 N.E.2d 156, quoting People v. Beaudet, 32 N.Y.2d 371, 378, 345 N.Y.S.2d 495, 298 N.E.2d 627). Thus, even though a witness is not liable criminally as an accomplice for the offense being tried, the witness may be an accomplice for corroboration purposes if he or she may reasonably be considered to have participated in an offense based upon some of the same facts or conduct which make up the offense on trial. Significantly, the proof need not show the participation of the witness beyond a reasonable doubt; it is sufficient if the witness may reasonably be considered to have participated. And, of course, the witness need not be actually charged with any offense to be deemed an accomplice (see, e. g., People v. Basch, 36 N.Y.2d 154, 157-158, 365 N.Y.S.2d 836, 325 N.E.2d 156, supra).

Under these principles, Vivian Gambino was an accomplice as a matter of law when she testified at defendant's trial for criminal solicitation. When Mrs. Gambino, in response to defendant's alleged solicitation agreed to perjure herself before the Grand Jury and then actually did so, she became potentially liable for prosecution for the crime of conspiracy (e. g., Penal Law, § 105.00). The agreement occurred when she assented to defendant's solicitation. An overt act occurred (Penal Law, § 105.20), if there was none prior, when she appeared before the Grand Jury and actually lied. Although the overt act is based upon conduct different from the criminal solicitation, the agreement element of the conspiracy is based upon the same facts as the solicitation. Thus, the conspiracy is based upon some of the same facts as the criminal solicitation, and Mrs. Gambino was an accomplice under CPL 60.22. ⁴ Even if the conspiracy is labeled as a separate crime, as the dissent advocates, it cannot be denied that the conspiracy is based upon some of the same facts as the solicitation. Finally, since Mrs. Gambino admitted that she agreed to lie and that she actually did so, there was no fact question as to her participation, and her accomplice status was established as a matter of law (see, e. g., People v. Basch, 36 N.Y.2d, at p. 157, 365 N.Y.S.2d 836, 325 N.E.2d 156, supra).

The suggestion in the dissenting opinion that this court is overruling People v. Lubow, 29 N.Y.2d 58, 323 N.Y.S.2d 829, 272 N.E.2d 331, supra, is difficult to understand. The Lubow case merely noted, in discussing some of the aspects of the new criminal solicitation provisions, that the...