People v. Ciauri
| Citation | 632 N.Y.S.2d 404,166 Misc.2d 615 |
| Parties | The PEOPLE of the State of New York v. Jerry CIAURI and James Besser, Defendant. |
| Decision Date | 27 July 1995 |
| Court | United States State Supreme Court (New York) |
Page 404
v.
Jerry CIAURI and James Besser, Defendant.
Part 75.
Page 405
[166 Misc.2d 616] Robert M. Morgenthau, District Attorney, New York County, New York City, Janet Cohn, Asst. Dist. Atty., of counsel, for the people.
Louis Aidala, New York City, for Jerry Ciauri.
Peter Quijano, New York City, for James Besser.
BERNARD J. FRIED, Justice.
The defendants were tried for the crime of enterprise corruption. (PL § 460.20(1)(a)). At the conclusion of the trial, defendants moved for a trial order of dismissal. I reserved decision on this motion (CPL § 290.10(1)), and, now, defendants also move
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to set aside the verdict pursuant to CPL § 330.30.The primary issue is whether, in an enterprise corruption trial, each criminal act alleged in the pattern of criminal activity must be corroborated pursuant to CPL § 60.22. This issue arose throughout the course of this trial in the context of the statutory mandate of CPL § 300.10(6), 1 defendants' motion for a trial order of dismissal pursuant to CPL § 290.10, and in connection with my jury instructions, and requires close scrutiny of the application of New York's accomplice corroboration requirement to the enterprise corruption statute.
To fully understand the issue involved, it is necessary to first refer to the enterprise corruption statute and New York's accomplice [166 Misc.2d 617] corroboration rule. According to PL § 460.20(1)(a), a defendant is guilty of enterprise corruption
"when, having knowledge of the existence of a criminal enterprise and the nature of its activities, and being employed by or associated with such enterprise, he:
"(a) intentionally conducts or participates in the affairs of an enterprise by participating in a pattern of criminal activity." PL § 460.20(1)(a).
To establish a defendant's participation in a pattern of criminal activity, the People are required to prove that the defendant, "with intent to participate in or advance the affairs of the criminal enterprise, ... engag[ed] in conduct constituting, or, is criminally liable for, ... at least three criminal acts included in the pattern [of criminal activity.]" PL § 460.20(2). 2 Finally, PL § 460.10(1) enumerates the criminal acts that may be included in the pattern.
Regarding corroboration, the Criminal Procedure Law 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]. This rule arose out of concern about the credibility of an accomplice witness, whose testimony at common law was "viewed ... with a 'suspicious eye'." See Preiser, Practice Commentary, McKinney's Cons.Laws of NY, Book 11A, CPL § 60.22 at 588. It is clear that New York's accomplice testimony rule does not require corroborating evidence to establish each element of an [166 Misc.2d 618] offense; it just has to bind the accomplice evidence to the defendant. All that is required is sufficient nonaccomplice evidence to assure that the accomplice has offered credible probative evidence. People v. Breland, 83 N.Y.2d 286, 293, 609 N.Y.S.2d 571, 631 N.E.2d 577 (1994). The role of accomplice corroboration, "is to connect the defendant with the commission of the crime, not to prove he committed it." Practice Commentary, supra, at 589 (emphasis added).
It is alleged in the indictment that the defendants participated in a pattern of criminal activity as associates of the Colombo Crime Family of La Cosa Nostra. The following
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criminal acts were included in the pattern of criminal activity: Conspiracy, second degree, Robbery, first degree, Grand Larceny second degree by Extortion, Grand Larceny, fourth degree, and Coercion, first degree. At trial, to establish the defendants participation in these criminal acts, the People presented, among other evidence, testimony from various members and associates of the Colombo Crime Family, who were accomplices as a matter of law, as well testimony from another witness as to whom there was a factual issue of whether or not he was an accomplice.Because the People's proof concerning the criminal acts consisted, in part, of accomplice testimony, the defendants argued that CPL § 60.22 required corroboration for each criminal act before they could be found to have committed such acts. The argument is that since PL § 460.20 requires proof that a defendant committed three criminal acts, and since the criminal acts consist of various criminal offenses, where a defendant's commission of a criminal act was established by accomplice testimony, CPL § 60.22 required independent evidence tending to connect the defendant to the commission of that particular criminal act. The People, on the other hand, argued that CPL § 60.22 only applies to convictions of an offense, and a criminal act is not an "offense," nor is the determination that a defendant committed a criminal act a "conviction." According to the People, the requirement to prove a pattern of criminal activity is merely an element of the crime of enterprise corruption. Therefore, corroborating evidence is not required to support each criminal act alleged in the pattern of criminal activity. Rather, it is argued, what is required is corroborating evidence which tends to connect the defendant to the crime of enterprise corruption.
After analysis of New York's accomplice testimony rule, I reject the defendants' argument and conclude that corroborating evidence is not required to connect a defendant to the commission [166 Misc.2d 619] of each criminal act alleged in the pattern of criminal activity. This is evident from a mere reading of CPL § 60.22, which only applies to a "convict[ion]" of an "offense." See Berenhaus v. Ward, 70 N.Y.2d 436, 443, 522 N.Y.S.2d 478, 517 N.E.2d 193 (1987) ( § 60.22 is limited in its application to criminal prosecutions and does not by its terms apply to police disciplinary hearings); People v. Bartolomeo, 53 N.Y.2d 225, 235, 440 N.Y.S.2d 894, 423 N.E.2d 371 (1981) (court refused to extend accomplice testimony rule to establishment of probable cause for the issuance of a...
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Besser v. Walsh, 02 Civ. 6775 (LAK) (AJP).
...6241-86; see Dkt. No. 17: Besser 1st Dep't Br. at 21.) Justice Fried reserved decision on the motion. (Tr. 6286.) See People v. Ciauri, 166 Misc. 2d 615, 616, 632 N.Y.S.2d 404, 405-06 (Sup. Ct. N.Y. Co. Verdict On November 19, 1994, the jury found Besser guilty of enterprise corruption, Pen......
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People v. Heller
...it would have been easy to have expressly included the rule, just as the legislature did in C.P.L. § 190.65(1). See People v. Ciauri, 166 Misc.2d 615, 621, 632 N.Y.S.2d 404 (Sup.Ct.N.Y.Co.1995). The legislature's failure to include the rule in C.P.L. § 100.40(1) indicates that its exclusion......
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People v. Ciauri
...The record supports the court's finding of pretext concerning the challenges at issue. We agree with the court's well-reasoned decision (166 Misc.2d 615, 632 N.Y.S.2d 404) to instruct the jury that accomplice corroboration was required for the offense of enterprise corruption but not for ea......
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People v. Marasa, 8856.
...as pattern acts, and, in any event, many other pattern acts still remain (see Penal Law § 460.40 [2]; 32 A.D.3d 371 People v Ciauri, 166 Misc 2d 615, 619 [1995], affd 266 AD2d 164 [1999], affd 96 NY2d 136 [2001]). Therefore, we decline to grant defendant a new trial on the enterprise corrup......