People v. Groff

• Citation: 524 N.Y.S.2d 13,518 N.E.2d 908,71 N.Y.2d 101
• Parties: , 518 N.E.2d 908 The PEOPLE of the State of New York, Appellant, v. Leonard J. GROFF, Respondent.
• Decision Date: 21 December 1987
• Court: New York Court of Appeals

Page 13

524 N.Y.S.2d 13

71 N.Y.2d 101, 518 N.E.2d 908

The PEOPLE of the State of New York, Appellant, v. Leonard J. GROFF, Respondent.

Court of Appeals of New York.

Dec. 21, 1987.

Larry M. Himelein, Dist. Atty., for appellant

Alan L. Spears, Buffalo, for respondent.

OPINION OF THE COURT

SIMONS, Judge.

Defendant has been charged with raping and sexually abusing a four-year-old girl in violation of Penal Law § 130.35(3) and § 130.65(3). He moved to dismiss the indictment, claiming the victim was improperly permitted to testify before the Grand Jury without being sworn and that her unsworn testimony was not sufficiently corroborated to support the charges. County Court granted the motion on both grounds and dismissed the indictment. The Appellate Division affirmed, without opinion.

The record establishes a legal basis for permitting the victim to testify without administering the oath. The critical issue is the standard of corroboration required by CPL 60.20 ^* to establish a prima facie case when proof of the charges depends upon the testimony of the unsworn victim. The statute is silent on the question and there have been substantial changes in public policy since this court last addressed it ( see, People v. Oyola, 6 N.Y.2d 259, 189 N.Y.S.2d 203, 160 N.E.2d 494). We now hold that the evidence is sufficient if the unsworn victim's testimony is corroborated by evidence tending to establish the crime and connecting defendant with its commission.

I

The victim was four years old when she appeared before the Grand Jury. The prosecutor questioned her extensively about herself and her family. She answered the questions readily but stated she did not know the difference between telling the truth and telling a lie. Accordingly, the prosecutor permitted her to testify without being sworn. Defendant contends he erred in doing so.

CPL 60.20 provides that a child under 12 may testify without being sworn if the court is satisfied that the witness possesses sufficient intelligence and capacity to justify receiving the evidence. At the Grand Jury stage of a criminal proceeding, determinations of witness competency must be made by the District Attorney (CPL 190.30). Defendant contends, and County Court agreed, that the indictment must be dismissed because the District Attorney did not make a finding that the victim did not understand the nature of an oath or that she possessed the capacity to testify without being sworn. In our view, the record demonstrates that the District Attorney evaluated the victim's testimonial capacity and made the necessary determinations. His decision should not be disturbed on review, therefore, in the absence of clear error ( cf., People v. Parks, 41 N.Y.2d 36, 46, 390 N.Y.S.2d 848, 359 N.E.2d 358).

At the outset of the Grand Jury proceeding the prosecutor read CPL 60.20, thereby indicating on the record that he would have to make a determination regarding the victim's ability to give sworn or unsworn testimony, and advising the jury that corroboration was necessary for unsworn testimony. He then conducted voir dire of her to assess her testimonial capacity. His preliminary examination revealed that she could accurately perceive objective conditions, such as the weather outside, she knew her full name, her age, the community where she lived, her mother and father's names and that her mother was expecting another child. She stated that she did not go to school but she did go to church. When the victim indicated she did not know the difference between telling the truth and lying, however, the District Attorney ruled on the record that she could not be sworn but proceeded to question her about the crime and defendant's part in it.

Because the prosecutor stated on the record that he would have to determine whether the victim was sufficiently intelligent to give unsworn testimony, conducted voir dire which revealed that she had the capacity to perceive and recall events, and only questioned her after explicitly stating his finding that the oath could not be administered to her, the record, by clear implication, establishes the District Attorney complied with CPL 60.20. That he did not expressly state his findings on the record does not require dismissal of the indictment because it is apparent that he made the requisite determinations ( cf., People v. Johnson, 185 N.Y. 219, 228, 77 N.E. 1164 ).

II

The evidence before the Grand Jury established that defendant is a relative of the victim. On the date in question, he lived with his parents and was approximately 26 years old. The victim testified before the Grand Jury that on the night of the crime she and her parents attended a family picnic at the home of defendant's parents where they had a campfire and a cookout. Defendant was there and after dark he took her into the woods behind the house. She then testified, and demonstrated with anatomically correct dolls, how defendant removed her pants and his own, laid on the ground and pulled her down on top of him, and had sexual intercourse with her. She testified that she cried when defendant put his penis between her legs because "it hurt" and defendant then stopped. After they put their clothes back on, defendant told her not to tell anyone what happened. She also stated that burdocks stuck to her while she was in the woods.

The girl's parents also testified before the Grand Jury. Her mother stated that 9 or 10 people attended the family gathering and that she was inside the house with several others watching television at the time defendant allegedly took her daughter into the woods. She assumed her daughter was safe because "everyone else around." The victim's father testified that at dusk on the evening of the gathering, he was playing horseshoes on the front lawn at the grandparents' house with a man named "Buddy". He recalled his daughter disappearing for approximately 15 minutes but thought nothing of it at the time because he assumed she had gone inside to go to the bathroom. Defendant was also absent during this time. After about 15 minutes the victim reappeared from the back of the house. She was crying and asked her father to remove burdocks from her hair.

The victim said nothing about the incident that night but her mother testified that after the picnic her daughter's personality changed and she became withdrawn. She also observed her daughter crying when urinating and noticed a "very bad redness" in her vaginal area. Because the victim's mother had to work, her grandfather first took the victim to a doctor to check the rash. The doctor prescribed medication. When the victim returned for a follow-up visit with her mother, the doctor informed the mother that he suspected her child had been sexually abused. That evening the mother asked her daughter if anyone had touched her "down there" and the victim reluctantly indicated that defendant had after he took her into the woods on the night of the picnic.

The victim's doctor testified that on the girl's first visit he observed a vaginal rash and became concerned that she might have been abused because, despite the lack of infection, she experienced pain when urinating. During this first visit he conducted a cursory examination, and as a result, believed her hymen had been ruptured. When she returned for the follow-up visit he and a gynecologist conducted a more thorough examination and discovered that her hymen was still intact. The doctor testified the existence of a hymen was not conclusive, however, and that the irritation could have been caused by partial penetration. He referred the family to the child abuse authorities.

III

The Criminal Procedure Law provides that a Grand Jury may indict when the evidence before it is legally sufficient, that is, if the evidence establishes all the elements of the crime, and establishes reasonable cause to believe defendant committed the crime (CPL 190.60). The first half of the test refers to the quantum of evidence; the second to the "degree of certitude" required ( People v. Jennings, 69 N.Y.2d 103, 115, 512 N.Y.S.2d 652, 504 N.E.2d 1079). The statute also provides that there shall not be legally sufficient evidence of the crime before the Grand Jury when corroboration is lacking if corroboration is required for conviction. Clearly, CPL 60.20 requires corroboration of the testimony of unsworn witnesses and the question before us is how much.

Although the trier of fact generally is responsible for determining the credibility of witnesses, because the law views some witnesses with skepticism it requires corroboration of their testimony as a matter of fairness to the defendant. The requirement reflects public policy considerations and the quantum of corroboration necessary varies from onerous to minimal depending on the purpose of the applicable corroboration rule. The most stringent corroboration standard in the Nation was found in former section 130.15 of the Penal Law, now repealed, which required that the victim's testimony in certain sex offenses be corroborated as to every material element of the crime ( see generally, People v. Fuller, 50 N.Y.2d 628, 635, 431 N.Y.S.2d 357, 409 N.E.2d 834; People v. Daniels, 37 N.Y.2d 624, 628, 376 N.Y.S.2d 436, 339 N.E.2d 139; People v. Friedman, 139 App.Div. 795, 796, 124 N.Y.S. 521; Note, Corroborating Charges of Rape, 67 Colum.L.Rev. 1137, 1138-1139). The requirement reflected a distrust of female complainants. At the other end of the spectrum is the minimal corroboration mandate set forth in CPL 60.50, which requires the corroboration of a defendant's confession by evidence, of whatever weight, tending to establish the crime was committed. "Its purpose is to avoid the possibility that a crime may be confessed when, in fact, has been committed" ( People v. Booden, 69 N.Y.2d 185, 187, 513 N.Y.S.2d 87, 505 N.E.2d 598; see also, People v. Lipsky, 57 N.Y.2d 560, 570, 457 N.Y.S.2d 451, 443 N.E.2d 925). The accomplice standard set forth in CPL 60.22 is...