People v. Suber

• Decision Date: 01 April 2011
• Citation: 35 Misc.3d 53,2011 N.Y. Slip Op. 21128,944 N.Y.S.2d 815
• Parties: The PEOPLE of the State of New York, Respondent, v. Frank SUBER, Appellant.
• Court: New York Supreme Court — Appellate Division

35 Misc.3d 53

944 N.Y.S.2d 815

2011 N.Y. Slip Op. 21128

The PEOPLE of the State of New York, Respondent,

v.Frank SUBER, Appellant.

Supreme Court, Appellate Term, 2nd, 11th and 13th Judicial Districts.

April 1, 2011.

Charles J. Hynes, District Attorney, Brooklyn (Leonard Joblove and Anthea H. Bruffee of counsel), for respondent.

Legal Aid Society, New York City (Steven Banks and Nancy E. Little of counsel), for appellant.

Present: PESCE, P.J., WESTON and GOLIA, JJ.

Appeal from a judgment of the Criminal Court of the City of New York, Kings County (Ruth E. Smith, J.), rendered November 14, 2008. The judgment convicted defendant, upon his plea of guilty, of failing to register as a sex offender within 10 days after any change of address.

ORDERED that the judgment of conviction is reversed, on the law, and the information is dismissed.

Defendant was charged in an information with two counts of failing to register as a sex offender within 10 days after any change of address (Correction Law § 168–f [4] ) and one count of failing to personally verify his address with local law enforcement every 90 calendar days following his initial release (Correction Law § 168–f [3] ). He pleaded guilty to one count of violating Correction Law § 168–f (4) in full satisfaction of the charges contained in the information.

It is alleged in the information that defendant had been convicted of a sex offense in South Carolina on October 19, 1992; that he had been designated a level three sex offender; and that he had registered as a sex offender in New York on July 6, 1999. It is further alleged that defendant had notified the Division of Criminal Justice Services (DCJS) of a change of address to Hoboken, New Jersey, on November 12, 2002 and that DCJS did not receive any other change of address from defendant until July 2006. The complainant alleged in the information that “by defendant's own admission defendant moved on or about 12/8/2005 to 1216 Herkimer Street, Kings County New York, and on or about 2/27/2006 defendant moved to 827 Gates Avenue, Kings County.”

On appeal, defendant contends that the count of the information charging a violation of Correction Law § 168–f (4) is jurisdictionally defective because it relies—to establish that he committed the element of the offense that he changed his address, and, by the same token, to establish that he committed the offense at all—solely on his uncorroborated admissions that he had moved ( see generallyCPL 60.50). In their brief on appeal, the People rely on a “Complaint Room Screening Sheet,” which indicated that the arresting officer had been informed by the administrator of Miracle House, located at 827 Gates Avenue, that defendant had been living at that location since February 27, 2006, and that the arresting officer had observed defendant at that location when he had placed defendant under arrest.

Defendant correctly asserts that there are no allegations contained in the information corroborating his admissions that he moved in December 2005 to Herkimer Street in Brooklyn, and that, in February 2006, he moved to Gates Avenue in Brooklyn. While the People rely on the “Complaint Room Screening Sheet” to corroborate defendant's admissions, an information must set forth the required nonhearsay evidentiary allegations within “the four corners of the instrument itself or in annexed supporting depositions” ( People v. Thomas, 4 N.Y.3d 143, 146, 791 N.Y.S.2d 68, 824 N.E.2d 499 [2005];seeCPL 100.15 [3]; 100.40[1] ). CPL 60.50 provides that a conviction may not be based solely upon evidence of a confession or admission; rather, corroboration is necessary, which requirement is satisfied “by the production of some proof, of whatever weight, that a crime was committed by someone” (Matter of Daniel McC., 250 A.D.2d 615, 615, 672 N.Y.S.2d 401 [1998] ). The “Complaint Room Screening Sheet,” relied upon by the People to corroborate defendant's admissions, was not signed nor was it referred to in the information or made a part thereof. There are, therefore, no allegations in the information corroborating admissions necessary to establish that a crime had been committed. The question presented is whether the prima facie case requirement for an information is satisfied where corroboration is required by law to sustain a conviction and yet the information contains no allegations of corroborative evidence.

Prior to the amendment of CPL 190.65(1) in 1983, the Appellate Division, First Department, in People v. King, 48 A.D.2d 457, 370 N.Y.S.2d 52 [1975], and the Appellate Division, Second Department, in People v. Clarkson, 50 A.D.2d 903, 904, 377 N.Y.S.2d 555 [1975], had held that where corroborative evidence is required to support a conviction, such evidence need not be presented to a grand jury to support an indictment, while the Appellate Division, Third Department, in People v. Laws, 54 A.D.2d 518, 519, 386 N.Y.S.2d 251 [1976], had held that such allegations had to be presented to the grand jury. As amended, CPL 190.65(1) provides that a person may be indicted where the evidence before the grand jury “is legally sufficient to establish that...