Opinion
March 18, 1996
Legal Aid Society, Brooklyn (Robert Newman of counsel), for defendant.
Charles J. Hynes, District Attorney of Kings County, Brooklyn (Robert Lamb of counsel), for plaintiff.
Defendant requested that this court not instruct the jury that the People must provide evidence corroborating defendant's statement. It was urged that a corroboration instruction would focus the jury's attention on defendant's statement rather than on the real issues in the case.
CPL 60.50 states: "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."
If the People fail to prove corroboration the evidence is legally insufficient (People v Cuozzo, 292 N.Y. 85). If a court upon request fails to charge corroboration, the error is reversible error because the jury has no guidance as to what constitutes sufficient proof (People v Reade, 13 N.Y.2d 42, 47).
Thus, defendant requested the court not to inform the jury as to what the People must show to prove defendant's guilt. This appears to be a request that the court diminish the People's burden of proof.
In People v Hills ( 140 A.D.2d 71) the Appellate Division, Second Department, rejected a claim that a court can compel a District Attorney to stipulate to an element of the crime. The Court reasoned that a defendant could not agree to remove from the jury consideration of an element of the crime because this would diminish the People's burden of proof (at 79-80).
Similarly, in Matter of Vergari v Walsh ( 90 A.D.2d 801) the Appellate Division prohibited a court from omitting an element of a crime from its jury charge even though defendant had consented, although upholding the court's right to compel the prosecution to stipulate (see, People v Pelose, 116 Misc.2d 788).
In contrast, the Court of Appeals in People v Lewis ( 64 N.Y.2d 1031, 1032) and People v Flynn ( 79 N.Y.2d 879, 881) implied that with the consent of a defendant a court need not instruct the jury regarding an element of the crime. Both cases cite the old Court of Appeals decision People v Walker ( 198 N.Y. 329, 335).
The court is aware of the distinction made in these cases between a stipulation of fact and a stipulation as to an element of a crime.
The court notes that the Supreme Court has granted certiorari in the case of Old Chief v United States (___ US ___, 116 S Ct 907). This case seems to raise a similar issue under Federal law.
The court finds that corroboration has not been treated as a problem involving the shifting of the burden of proof. It appears that the failure to request a corroboration charge prohibits appellate review as a matter of law (People v James, 75 N.Y.2d 874, 875; People v Cona, 49 N.Y.2d 26, 33; People v Ortiz, 215 A.D.2d 408). Of course, the Appellate Division has discretion to review the issue in the interest of justice (People v Cona, supra). Thus, it appears that corroboration does not come under the Patterson (People v Patterson, 39 N.Y.2d 288, 296) exception that issues of shifting the burden of proof need not be preserved for appellate review (see, People v Gray, 86 N.Y.2d 10, 21). Since the failure to request corroboration does not preserve the issue, it cannot be an issue of shifting the burden of proof.
The failure to charge is not the equivalent of what the Court of Appeals described in Gray (supra) as a charge that is "merely capable of being interpreted in such a way as to shift the burden of proof" (at 22). The failure to charge corroboration is no charge as to the People's "burden of proof".
The court is aware that it could, if it so desired, charge corroboration over defendant's objection (People v Green, 170 A.D.2d 1024; see also, People v Ford, 66 N.Y.2d 428, 439-441; People v Giamanco, 188 A.D.2d 547). However, since it was defendant's trial strategy to ask the court not to charge corroboration, the court declines to overrule the defendant's strategy as that would interfere with defendant's right to make certain fundamental decisions. (See generally, People v Petrovich, 87 N.Y.2d 961.)
This situation is similar to a defendant who knows that there exists a legitimate defense to an indictment but is permitted to plead guilty upon knowingly, intelligently and voluntarily waiving his legal rights. (See, People v Serrano, 15 N.Y.2d 304.) As a defendant can waive jury consideration of all elements of a crime by pleading guilty, why can't a defendant also waive jury consideration of a single element?
Defendant was apprised of the right to a corroboration charge and knowingly, intelligently and voluntarily waived that right.
The court, therefore, did not charge corroboration. (See, United States v Hernandez, 27 F.3d 1403, 1407-1408.)