People v. Heller

• Decision Date: 26 October 1998
• Citation: 689 N.Y.S.2d 327,180 Misc.2d 160
• Parties: , 1999 N.Y. Slip Op. 99,155 The PEOPLE of the State of New York, Plaintiff, v. Bryan HELLER, Defendant. New York County
• Court: New York City Court

Page 327

689 N.Y.S.2d 327

180 Misc.2d 160, 1999 N.Y. Slip Op. 99,155

The PEOPLE of the State of New York, Plaintiff, v. Bryan HELLER, Defendant.

Criminal Court, City of New York,

New York County.

Oct. 26, 1998.

Sean Sullivan, New York City, for defendant.

Robert M. Morgenthau, District Attorney of New York County, New York City (Adam Finger of counsel), for plaintiff.

LUCY BILLINGS, J.

This case requires the court to resolve two difficult issues that frequently arise when a misdemeanor information includes a defendant's statements as basis for the offense charged. The first issue arises when, without the defendant's admissions, the information does not allege sufficient facts to support the charge. Although N.Y.Crim.Proc.Law (C.P.L.) § 60.50 forbids convictions solely upon uncorroborated admissions, and C.P.L. § 190.65(1) imposes that corroboration rule on indictments, the legislature expressly refrained from imposing that rule on misdemeanor accusatory instruments. Thus a misdemeanor information is not insufficient because it relies on a defendant's admission, which is admissible as an exception to the rule against hearsay, to establish an offense.

If the people intend to introduce evidence of the defendant's statements at trial, however, service of the accusatory instrument containing the statements on him is not notice of the intention to offer the evidence, as required by C.P.L. § 710.30(1)(a) and (2). Although a defendant may move simultaneously to preclude the statements and to suppress them if the court denies preclusion, as long as he does not proceed to a determination of the suppression motion, he has not evinced actual notice sufficient to effect a waiver of his preclusion rights.

In this case, the people have charged defendant with Criminal Trespass in the Second Degree. N.Y.Penal Law (P.L.) § 140.15. He moves to dismiss the accusatory instrument as facially insufficient, because it relies on his statements. C.P.L. §§ 170.30(1)(a), 170.35(1)(a). He also moves to preclude the people from offering evidence of his statements at trial, because he has not received timely notice of the intention to use them at trial. C.P.L. § 710.30(3). Alternatively, he moves to suppress his statements as involuntary, C.P.L. §§ 60.45, 710.20(3); People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179 (1965), or the fruit of an unlawful seizure. Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979).

In determining the motions the court has considered the factual allegations in the accusatory instrument, defendant's motion papers, and the people's response and Voluntary Disclosure Form. For the reasons discussed below, the court denies defendant's motion to dismiss and grants the motion to preclude.

I. THE MOTION TO DISMISS FOR FACIAL INSUFFICIENCY

A. THE PARTIES' PLEADINGS AND ARGUMENTS

A person commits criminal trespass in the second degree when he "knowingly enters or remains unlawfully in a dwelling." P.L. § 140.15. The accusatory instrument alleges that at 9:38 a.m. on March 2, 1997, at 108 Avenue D, New York County, Police Officer Richard Suffern

observed the defendant on the roof of the dwelling, an apartment building where people reside at the above location and that said location is posted with signs saying "No Trespassing" and in part: "Anyone who remains unlawfully upon these premises will be prosecuted" (HPD Building).

Defendant did not have permission or authority to be inside the dwelling based on information and belief the source of which is as follows: defendant is not a tenant of said location in that defendant provided a residence address different from the above location and informant observed the defendant trespass in a Housing Authority Building. Informant is a member of the Housing Bureau and as such is an agent of this building and defendant did not have permission or authority to enter or remain in the area where (s)he was found.

Defendant is not an invited quest in that defendant stated, in substance: I was just hanging out in the building waiting for the stores to open.

(emphasis added)

Defendant moves to dismiss the charge of trespass in a dwelling on the ground that the accusatory instrument alleges no basis for the offense aside from his alleged admission that he was not a resident or invited guest at the dwelling. Defendant does not argue that the accusatory instrument fails to allege the elements of the offense of criminal trespass in the second degree. He correctly points out, however, that without his admissions, the instrument alleges no facts that give rise to an inference of criminal conduct. Defendant's presence on the roof of a dwelling from which trespassers are barred may justify a police officer's bare informational inquiry regarding defendant's identity, address, and destination, People v. Hollman, 79 N.Y.2d 181, 190-91, 581 N.Y.S.2d 619, 590 N.E.2d 204 (1992); People v. Velasquez, 217 A.D.2d 510, 511, 630 N.Y.S.2d 303 (1st Dep't 1995), but is not inherently indicative of criminality. People v. Powell, 246 A.D.2d 366, 368, 667 N.Y.S.2d 725 (1st Dep't 1998); People v. Giles, 223 A.D.2d 39, 40, 647 N.Y.S.2d 4 (1st Dep't 1996); People v. Sanders, 172 A.D.2d 239, 568 N.Y.S.2d 77 (1st Dep't 1991); People v. Kojac, 176 Misc.2d 187, 193, 671 N.Y.S.2d 949 (Sup .Ct.N.Y.Co.1998). The fact that the officer had not granted defendant permission to enter or remain on the roof supports the offense only upon defendant's admission that he was not a resident or an invitee at the dwelling. Because he cannot be convicted without independent proof that he committed the offense, C.P.L. § 60.50, he argues that any accusatory instrument failing to allege such proof is facially insufficient as a matter of law. C.P.L. § 100.40(1)(c); People v. Alejandro, 70 N.Y.2d 133, 136, 517 N.Y.S.2d 927, 511 N.E.2d 71 (1987).

B. THE APPLICATION OF C.P.L. § 60.50 TO ACCUSATORY INSTRUMENTS

Since defendant's sole claim of facial insufficiency is that C.P.L. § 60.50 imposes a corroboration requirement on any accusatory instrument alleging only an accused's admission to support an element of the offense, the court must determine whether C.P.L. § 60.50 applies to misdemeanor accusatory instruments.

1. The Corroboration Requirement of C.P.L. § 60.50

C.P.L. § 60.50 provides that:

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.

By its terms, C.P.L. § 60.50 forbids convictions solely upon uncorroborated confessions or admissions. A "conviction" is

the entry of a plea of guilty to, or a verdict of guilty upon, an accusatory instrument other than a felony complaint, or to one or more counts of such instrument.

C.P.L. § 1.20(13).

The rule protects against conviction of an offense based only on a person's admission, with no other proof that the offense actually has been committed. People v. Lipsky, 57 N.Y.2d 560, 570, 457 N.Y.S.2d 451, 443 N.E.2d 925 (1982). The rule is satisfied when the admission is supported by " 'some proof, of whatever weight,' that the offense charged has in fact been committed by someone." People v. Booden, 69 N.Y.2d 185, 187, 513 N.Y.S.2d 87, 505 N.E.2d 598 (1987) (quoting People v. Daniels, 37 N.Y.2d 624, 629, 376 N.Y.S.2d 436, 339 N.E.2d 139 (1975)). See also People v. Duke, 160 A.D.2d 1017, 1018, 554 N.Y.S.2d 729 (2d Dep't 1990). Thus it is unnecessary to produce independent evidence corroborating every element of the offense. People v. Chico, 90 N.Y.2d 585, 589-90, 665 N.Y.S.2d 5, 687 N.E.2d 1288 (1997); People v. McCray, 198 A.D.2d 200, 201, 604 N.Y.S.2d 93 (1st Dep't 1993). The corroboration requirement is met merely by proof of circumstances "calculated to suggest the commission of crime, and for the explanation of which the confession furnishes the key." People v. Jackson, 65 N.Y.2d 265, 273, 491 N.Y.S.2d 138, 480 N.E.2d 727 (1985) (citation omitted).

2. The Requirements for Accusatory Instruments

An "accusatory instrument" means any of several forms of written accusation charging a person with an offense. C.P.L. §§ 1.20(1) and (3)-(8), 100.10. The evidentiary standards for these instruments' facial sufficiency vary. A misdemeanor information, as in this case, must contain non-hearsay allegations providing reasonable cause to believe the accused committed every element of the offense. C.P.L. § 100.40(1). Nonhearsay includes admissible hearsay. Matter of Rodney J., 108 A.D.2d 307, 311, 489 N.Y.S.2d 160 (1st Dep't 1985); Matter of Solomon D., 152 Misc.2d 7, 12, 574 N.Y.S.2d 643 (Fam.Ct.N.Y.Co.1991); People v. McKinney, 145 Misc.2d 460, 461, 546 N.Y.S.2d 927 (Crim.Ct. Kings Co.1989). Defendant's admission, admissible as an exception to the rule against hearsay, thus may provide prima facie evidence establishing an element of an offense.

The rule of corroboration requiring "additional evidence of the crime," People v. Lipsky, 57 N.Y.2d at 571, 457 N.Y.S.2d 451, 443 N.E.2d 925, to prove guilt beyond a reasonable doubt is an evidentiary prescription at trial. The requirement serves the policy considerations against convictions based only on the accused's admission. The required corroborating evidence does not add an element to an offense nor any necessary proof that defendant committed it. People v. King, 48 A.D.2d 457, 459, 370 N.Y.S.2d 52 (1st Dep't 1975).

A 1983 amendment to C.P.L. § 190.65(1) states that evidence presented to a grand jury, however, is not legally sufficient "when corroboration that would be required, as a matter of law, to sustain a conviction ... is absent." This amendment was a direct response to appellate courts' inconsistent rulings on the corroboration requirement's applicability to indictments. The First and Second Departments had held that the corroboration rule did not apply, see Matter of Rodney J., 108 A.D.2d at 312, 489 N.Y.S.2d 160; People v. Alvarez, 141 Misc.2d 686, 690, 534 N.Y.S.2d...