People v. Besser

CourtNew York Court of Appeals
Writing for the CourtGRAFFEO, J.
Citation726 N.Y.S.2d 48,96 N.Y.2d 136,749 N.E.2d 727
Decision Date01 May 2001

Office of the Appellate Defender, New York City (Richard M. Greenberg of counsel), for appellant in the first above-entitled action.

Michael J. Hutter, Albany, for appellant in the second above-entitled action.

Robert M. Morgenthau, District Attorney of New York County, New York City (Gina Mignola and Mark Dwyer of counsel), for respondent in the first and second above-entitled actions.

Eliot Spitzer, Attorney General, Albany (Edward Lindner, Preeta D. Bansal, Daniel Smirlock, Peter H. Schiff and Robin A. Forshaw of counsel), in his statutory capacity under Executive Law § 71 in the first above-entitled action.




Defendants were convicted after a jury trial of enterprise corruption (see, Penal Law § 460.20). The primary contention asserted by each defendant on appeal concerns application of the CPL 60.22 (1) accomplice corroboration rule to an enterprise corruption prosecution. Defendants contend that accomplice corroboration was required for each pattern criminal act that supported a finding of guilt under the enterprise corruption statute. We conclude, however, the jury was properly charged that the testimony of the accomplices need not be corroborated for each pattern act but was sufficiently corroborated if the jury determined that some independent evidence tended to connect defendants to the offense of enterprise corruption. Accordingly, we affirm.

In 1986, the Legislature enacted title X of the Penal Law, the "Organized Crime Control Act" (OCCA), which created the offense of enterprise corruption. Codified as Penal Law § 460.20, enterprise corruption is a class B felony. Under the statute, three alternative courses of conduct constitute the crime. Relevant to this case, a person is guilty of enterprise corruption when that individual is employed by or associated with a criminal enterprise and intentionally participates in the affairs of that enterprise by engaging in a pattern of criminal activity involving at least three criminal acts (see, Penal Law § 460.20 [1], [2]). A criminal enterprise refers to "a group of persons sharing a common purpose of engaging in criminal conduct, associated in an ascertainable structure distinct from a pattern of criminal activity, and with a continuity of existence, structure and criminal purpose beyond the scope of individual criminal incidents" (Penal Law § 460.10 [3], see, Donnino, Practice Commentary, McKinney's Cons Laws of NY, Book 39, Penal Law art 460 at 346). The pattern criminal acts which may qualify as a basis for the offense are enumerated in Penal Law § 460.10 (1); while all the eligible acts represent conduct constituting felonies, a misdemeanor conspiracy or attempt to commit any of the listed felonies may also be charged as a pattern act.

Penal Law § 460.20 was plainly intended to reach conduct that was not already subject to criminal prosecution (see, Bill Jacket, L 1985, ch 516). The emphasis of the legislation was not on the quantity or nature of the myriad, isolated criminal activities underlying the new offense—conduct adequately addressed elsewhere in the Penal Law. Instead, it "focuse[d] upon criminal enterprises because their sophistication and organization make them more effective at their criminal purposes and because their structure and insulation protect their leadership from detection and prosecution" (Penal Law § 460.00). Thus, the purpose of creating the separate crime was to address the particular and cumulative harm posed by persons who band together in complex criminal organizations.

In addition to defining the conduct constituting the offense, certain provisions of the Criminal Procedure Law were modified to create special procedures applicable to enterprise corruption prosecutions (see, L 1986, ch 516). For example, several CPL sections were amended to provide for use of particular jury charges and verdict sheet practices (see, CPL 300.10 [6]; 310.50 [4]). When enterprise corruption is charged, the jury must undertake a two-step adjudication process to determine whether a defendant is guilty of the offense. It must first render a special verdict addressing the commission of each of the charged pattern acts. Only after the person charged is found to have committed at least three pattern criminal acts may the jury consider whether that individual defendant is guilty of enterprise corruption. A defendant may not be convicted of the offense unless the jury finds the acts were part of a pattern of criminal activity undertaken in furtherance of a cognizable criminal enterprise that extended beyond the common plan or scheme encompassing the alleged pattern acts. Notwithstanding a finding that a defendant engaged in three or more pattern criminal acts, a defendant must be acquitted if the jury concludes the facts do not support the second inquiry (see, CPL 310.50 [4]). Moreover, regardless of how many pattern acts the jury finds a defendant committed in furtherance of the interests of the criminal enterprise, a defendant convicted of enterprise corruption is guilty of only one class B felony. Accordingly, sentencing exposure is limited to that attendant to conviction for a single class B felony, even though the jury may have found criminal conduct which could constitute numerous felonies of a higher class.

Although the Legislature amended several CPL provisions in its adoption of the OCCA, the legislation made no reference to CPL 60.22 (1), New York's accomplice corroboration rule. Nor can we discern from the legislative history of the Act an intent on the part of the Legislature to fashion a new accomplice corroboration rule for enterprise corruption prosecutions (see, Penal Law § 460.00). The application of the rule in this case, then, is guided by our existing jurisprudence, taking into consideration the unique characteristics of an enterprise corruption offense.

The accomplice corroboration rule provides that 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]). "New York's accomplice corroboration protection, while persistently unique, requires only enough nonaccomplice evidence to assure that the accomplices have offered credible probative evidence" (People v Breland, 83 NY2d 286, 293 [citation omitted]). Because the purpose of the requirement is not to establish defendant's guilt independently but to provide some basis for the jury to conclude the accomplice testimony is credible, "`[s]eemingly insignificant matters may harmonize with the accomplice's narrative so as to provide the necessary corroboration'" (id., at 292-293 [quoting People v Steinberg, 79 NY2d 673, 683]). Independent evidence need not be offered to establish each element of the offense or even an element of the offense; the People's burden is merely to offer some nonaccomplice evidence "tending to connect" defendant to the crime charged (see, CPL 60.22 [1]; People v Breland, supra, at 294; People v Steinberg, supra, at 682; People v Smith, 55 NY2d 945, 946; People v Glasper, 52 NY2d 970, 971).

Here, the indictment charged 10 defendants with one count of enterprise corruption based on 62 pattern criminal acts alleged to have been undertaken in furtherance of the affairs of an organized crime family between 1983 and 1993. Three defendants were tried jointly: James Besser, Jerry Ciauri and one other individual who was acquitted of the offense. Besser and Ciauri were both charged with six pattern acts involving robbery, conspiracy to commit murder and multiple instances of grand larceny; Ciauri was named alone in a seventh act charging coercion. Although proof was offered that the ongoing criminal enterprise involved a number of illegal moneymaking schemes, encompassing bookmaking, loansharking, credit card fraud, extortion, coercion and larceny, the particular conduct attributed to defendants in the indictment fell generally within the realm of extortion, larceny, coercion and robbery. Extensive testimony was adduced that defendants were associates in the crime family and engaged in a struggle for control of the enterprise which, for purposes of the charges against defendants, involved an allegation that defendants conspired with others to murder a member of the rival faction (pattern act three in the indictment).

Much of the testimony presented by the People was offered by three accomplices in the criminal enterprise who testified pursuant to cooperation agreements with State and Federal law enforcement authorities. These witnesses described the structure of the criminal enterprise, the nature of its activities, and the various participants and their roles in the enterprise's illegal conduct. This proof implicated defendants in various criminal activities in furtherance of the interests of the enterprise. Defendants maintain the court should have adopted their version of the accomplice corroboration charge, thereby instructing the jury that it must find independent corroborative evidence tending to connect each defendant to each pattern act before the accomplice testimony could be credited.

In a thoughtful and comprehensive opinion, the trial court ruled that separate corroboration of each pattern act was not required under the statute and, therefore, charged that the accomplice testimony could be credited if the jury determined there was independent evidence tending to connect each defendant to the offense of enterprise corruption. The jury determined that both defendants...

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  • Besser v. Walsh, 02 Civ. 6775 (LAK) (AJP) (S.D.N.Y. 11/26/2003), 02 Civ. 6775 (LAK) (AJP).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • November 26, 2003
    ...407 [(2001)]). His remaining claim of sentencing error has been reviewed and determined to be lacking in merit. People v. Besser, 96 N.Y.2d 136, 148, 726 N.Y.S.2d 48, 54 Besser claims that the enhancement of his sentence under the discretionary persistent felony offender sentence provisions......
  • Besser v. Walsh, Docket No. 05-4375-pr
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • March 31, 2010
    ...because Besser had failed to raise the Apprendi claim before the sentencing court, the issue was not preserved. See People v. Besser, 96 N.Y.2d 136, 726 N.Y.S.2d 48, 749 N.E.2d 727, 733 (2001) (citing Rosen, 96 N.Y.2d 329, 728 N.Y.S.2d 407, 752 N.E.2d On August 26, 2002, Besser filed the pr......
  • Besser v. Walsh, 02 Civ. 6775 (LAK) (AJP).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • September 10, 2003
    ...Ct. App. Reply Br. at A316-21.) On May 1, 2001, the New York Court of Appeals unanimously affirmed Besser's conviction. People v. Besser, 96 N.Y.2d 136, 726 N.Y.S.2d 48 (2001). The New York Court of Appeals' decision dealt largely with affirming the denial of Besser's Corroboration Claim. P......
  • Chu v. Artus, 07 Civ. 6684 (RJS) (DF)
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • August 9, 2011
    ...but were in no way implicated in William's murder, was sufficient to connect Petitioner to that murder. See People v. Bresser, 96 N.Y.2d 136, 147 (2001) ("The accomplice status of a witness with respect to one charge in a criminal transaction does not necessarily render that person an accom......
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