People v. Gundarev, 2009 NY Slip Op 51972(U) (N.Y. Crim. Ct. 9/23/2009)
| Decision Date | 23 September 2009 |
| Docket Number | 2008KN085685 |
| Citation | 2009 NY Slip Op 51972 |
| Parties | THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff, v. DMITRIY GUNDAREV, Defendant. |
| Court | New York Criminal Court |
Charles J. Hynes, District Attorney (Natasha Rossell, Esq. of counsel), for the People.
Brooklyn Defender Services (Elizabeth Latimer, Esq. of counsel), for Defendant.
At issue in this case is whether CPL § 60.50, which provides that a person may not be convicted of an offense solely upon evidence of his own confession, applies to criminal court accusatory instruments, and whether Defendant can be charged with Operating a Motor Vehicle while under the Influence of Alcohol, based upon his admission that he had been driving a vehicle at the time and place specified in the Complaint and the arresting officer's observation that Defendant exhibited signs of intoxication. Defendant argues that without Defendant's uncorroborated statement, there is no proof that he was driving. (Latimer Aff. ¶6).
Defendant argues that this case is distinguishable from People v. Vialva, 23 Misc 3d 1105(A), 881 NYS2d 366 (Crim Ct Kings Co 2009), in which we held, following People v. Heller, 180 Misc 2d 160, 167, 689 NYS2d 327, 333 (Crim Ct NY Co 1998), that corroboration is required for accusatory instruments only where the legislature specifically imposes such a requirement as a matter of policy.
In light of the recent Appellate Term decision from the Second Department, Ninth and Tenth Judicial Districts, decided subsequent to our decision in Vialva, dismissing an information where there were no allegations other than defendant's admission to suggest that any crime had been committed (People v. Miedema, 24 Misc 3d 132(A) (App Term 2nd Dept 2009)), we revisit our earlier decision addressing the confession corroboration rule.
A lower court is bound only by decisions of courts which have appellate jurisdiction over it. See People v Pestana, 195 Misc 2d 833, 762 NYS2d 786 (Crim Ct NY Co 2003); Creagh v Stilwell, 128 Misc 2d 213, 489 NYS2d 690 (Civ Ct, NY Co 1985); People v. Waterman, 122 Misc 2d 489, 471 NYS2d 968 (Crim Ct NY Co 1984). But see Dolan v. Linnen, 195 Misc 2d 298, 753 NYS2d 682 (Civ Ct Richmond Co 2003) (decision from Appellate Term, First Department, is strong if not binding authority where neither Second Department's Appellate Term nor its Appellate Division has considered the issue).
Under the doctrine of stare decisis, a lower court must follow a decision of an Appellate Term to which an appeal from the former lies. 28 NY Jur.2d Courts and Judges § 220. See 29 Holding Corp v Diaz, 3 Misc 3d 808, 775 NYS2d 807 (Sup Ct Bronx Co 2004); Juniper Walk Condominium v. Patriot Management Corp., 3 Misc 3d 748, 774 NYS2d 672 (City Ct White Plains 2004), 81 Franklin Co. v Ginaccini, 149 Misc 2d 124, 563 NYS2d 977 (Civ Ct NY City 1990).
In determining whether a court in the First Department was bound by a decision rendered by the Appellate Term, Second Department, Pestana held that because the Appellate Term is a court of local jurisdiction (see NY Const. Art VI, § 8(a), CPL 450.60 (4)), its appellate authority should not extend beyond its own jurisdiction. See also 29 Holding Corp, supra . The court in Pestana finds several reasons to distinguish the Appellate Term from the Appellate Division: the Appellate Term is not a court of record, it was created by and serves at the pleasure of the Appellate Division1, and requires a concurrence of only two justices to render a decision rather than three justices as is required in the Appellate Division. 195 Misc 2d at 837-38.
This court sits in the Second Judicial District. No controlling decision of the Appellate Term for the Second and Eleventh Judicial Districts, to which any appeal from our court lies, has been brought to the Court's attention. Applying the foregoing principles of law, this Court is not bound to follow the decisions of the Appellate Term for the Ninth and Tenth Districts. See Harmir Realty v. Zagarella, 10 Misc 3d 1070(A), 814 NYS2d 561 (NY Just Ct Village of Hastings 2005). For all of these reasons, the Court finds that Miedema does not bind it; nonetheless, Miedema is entitled to great deference. See e.g. Pestana, supra at 839.2
Defendant was charged by a Complaint dated November 16, 2008, with Operating a Motor Vehicle while under the Influence of Alcohol, in violation of VTL §§ 1192 (1) and (3), and Reckless Driving, in violation of VTL § 1212. The original Complaint, signed by Police Officer Charles T. Burke, states, in relevant part:
Deponent is informed by Sally Levy that [on or about November 15, 2008 at approximately 9:00 PM, at 65th Street and Dahill Road, County of Kings], [Sally Levy] was stopped at a steady red light when [she] observed the Defendant driving a mid-1990s Lincoln Town Car...when Defendant did rear-end Informant's vehicle.
Deponent is further informed by Ms. Levy that when Defendant exited the vehicle to discuss the incident with Informant, one of the passenger's [sic] in Defendant's vehicle got in the driver's seat and drove off with the vehicle.
Deponent further states that Deponent is informed by Defendant's own statements that Defendant had been driving a vehicle at the above time and place.
Deponent further states that at the approximate above time and place, Deponent observed the Defendant exhibiting signs of intoxication ...
On February 26, 2009, the People conceded the expiration of speedy trial time pursuant to CPL 30.30 on the counts of VTL §§ 1192(3) and 1212, after failing to obtain a Supporting Deposition from Sally Levy. Those counts were accordingly dismissed, with only the count of VTL § 1192(1) remaining.
On July 2, 2009, Defendant filed a motion to dismiss for Facial Insufficiency, pursuant to CPL § 170.30(1)(a), upon the grounds that the complaint is defective within the meaning of CPL §§ 170.35, 100.40, and 100.15.
Defendant's argument is twofold. First, Defendant argues that without a Supporting Deposition from Informant Sally Levy, the remaining admissible allegations fail to establish the requisite elements of VTL § 1192(1) and are therefore facially insufficient. (Latimer Aff. ¶5, Defense Memo 1). Second, Defendant argues that CPL § 60.50, which provides that a person may not be convicted of an offense solely upon evidence of his own confession, applies to Criminal Court accusatory instruments, and that here, but for Defendant's alleged admission, "the accusatory instrument does not even allege that the vehicle existed on the date of the alleged offense." (Defense Memo 3).
The People reply that the arresting officer was informed by Defendant that he had been driving, thus the element of "operation" is met, and that the element of "impairment" is satisfied by the arresting officer's observation of Defendant having slurred speech, red watery eyes, an odor of alcohol on his breath, and an unsteady gait. (People's Memo 4). The People argue, citing People v. Espanda, 11 Misc 3d 1067(A), 816 NYS2d 699 (Crim Ct Queens Co 2006), that together, these facts provide reasonable cause to believe that Defendant was driving under the influence of alcohol, and thus the accusatory instrument is facially sufficient. (People's Memo 4).
The Defendant does not appear to dispute that the complaint properly alleges the element of "impairment." Thus, only the element of "operation" remains at issue in this case.
CPL § 60.50 provides: "[a] person may not 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." [emphasis added]. The corroboration of confession rule aims to protect against the "danger that a crime may be confessed when no crime in any degree has been committed by anyone." People v. Lytton, 257 NY 310, 178 N.E. 290 (1931). See also People v. Reade, 13 NY2d 42, 191 NE2d 891, 241 NYS2d 829 (1963).
This Court has held, most recently in Vialva, supra, that the "confession corroboration rule" limits its application to criminal convictions, and does not apply to Criminal Court accusatory instruments. See also People v. Heller, supra; People v. Espanda, supra; People v. Sykes, Docket No. 2006KN080800 (Crim Ct Kings Co, October 18, 2007, McGuire, J.); People v. McKinney, 145 Misc 2d 460, 546 NYS2d 927 (Crim Ct Kings Co 1989).
Defendant cites People v. Alvarez, 141 Misc 2d 686, 534 NYS2d 90 (Crim Ct NY Co 1988), People v. Dolan, 1 Misc 3d 32, 770 NYS2d 558 (App Term 1st Dept. 2003), People v. Kaminiski, 143 Misc 2d 1089, 542 NYS2d 923 (Crim Ct NY Co 1989), and People v. Walker, 21 Misc 3d 748, 865 NYS2d 530 (Crim Ct Kings Co 2008), in support of his argument that CPL § 60.50 applies to Criminal Court accusatory instruments. In addition, the recent decision in Miedema supports Defendant's argument.
In order to be sufficient on its face, an accusatory instrument must allege facts sufficient to provide reasonable cause to believe that the Defendant committed the offenses charged. CPL § 100.40(4)(b); People v. Dumas, 68 NY2d 729, 497 NE2d 686, 506 NYS2d 319 (1986). The allegations must be non-hearsay. People v. Alejandro, 70 NY2d 133, 517 NYS2d 927 (1987), CPL § 100.40(1)(c). At the pleading stage, all that is needed is that the factual allegations are sufficiently evidentiary in character and tend to support the charges. People v. Allen, 92 NY2d 378, 681 NYS2d 216, 703 NE2d 1229 (1998).
A. The ComplaintInsufficiently Alleges Operating a Motor Vehicle While Under the Influence of Alcohol or Drugs (VTL § 1192(1)).
Defendant is charged with VTL § 1192(1), Operating a Motor Vehicle While Under the Influence of Alcohol or Drugs, which provides, in relevant part:
1. No person shall operate a motor vehicle while the person's ability to operate...
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